EXHIBIT 10.48
COQUILLE ECONOMIC DEVELOPMENT CORPORATION
GAMING ENTERTAINMENT L.L.C.
FIRST AMENDED AND RESTATED PARTICIPATING LEASE
THIS FIRST AMENDED AND RESTATED PARTICIPATING LEASE dated as of October
8, 1996 (this "Lease"), restates and amends that certain Participating Lease
made as of February 9, 1995, as amended, by and between GAMING ENTERTAINMENT
L.L.C., a Delaware limited liability company ("GELLC" or "Lessor;" successor in
interest to FULL HOUSE RESORTS, INC., a Delaware corporation ("FHR")), whose
address is 00 Xxxxxxxxxx Xxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000 and COQUILLE
ECONOMIC DEVELOPMENT CORPORATION, a corporation chartered by the Coquille Indian
Tribe ("Lessee" or "CEDCO"), whose address is 0000 Xxxxxxx, Xxxxx Xxxx, Xxxxxx
00000.
1. RECITALS.
WHEREAS, the Coquille Indian Tribe (the "Tribe") has been reorganized
pursuant to the Coquille Restoration Act of 1989, (25 U.S.C. Section 715 through
715g) and has the authority to direct the Secretary of the Interior to acquire
land in trust;
WHEREAS, the Tribe has organized CEDCO pursuant to its laws for the
purpose of developing projects for the general economic welfare of the Tribe and
has vested CEDCO with the right and authority to contract for the transactions
set forth herein;
WHEREAS, CEDCO operates a gaming facility on a portion of the Premises
in compliance with Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25 U.S.C.
Section 2701 et seq. and its gaming compact with the State of Oregon;
WHEREAS, CEDCO leases the Premises from the Tribe pursuant to the
Business Lease;
WHEREAS, FHR subleases the Premises from CEDCO pursuant to a Master
Lease dated as of February 9, 1995, as amended (the "Old Master Lease") pursuant
to which CEDCO expanded, reconstructed, improved and built-out the Premises
sufficient to accommodate the gaming facility which is presently operated by
CEDCO;
WHEREAS, pursuant to the Loan Agreement dated as of February 9, 1995, as
amended (the "Old Loan Agreement"), FHR agreed to loan to CEDCO up to
$10,400,000 (such amounts as are outstanding with respect to such loans as of
the date hereof, the "Existing Indebtedness"), subject to the terms and
conditions of the Old Loan Agreement for the purpose of, among other things,
permitting CEDCO to finance the expansion, reconstruction, improvement and
build-out referenced above of the Premises;
1 - PARTICIPATING LEASE
WHEREAS, FHR sub-subleases the Premises to CEDCO pursuant to a
Participating Lease dated as of February 9, 1995, as amended (the "Old
Participating Lease");
WHEREAS, in December 1995, FHR assigned to GELLC its interest in the Old
Master Lease, the Old Loan Agreement, the Old Participating Lease and related
documents and agreements;
WHEREAS, in connection with the execution of a Loan Agreement of even
date herewith between CEDCO and Xxxxxx & Xxxxxxxxx Investments Corporation and
related documents and agreements, Xxxxxx & Xxxxxxxxx Investments Corporation has
agreed to lend to CEDCO $ 17,500,000 for the purpose of permitting CEDCO to
retire the Existing Indebtedness and to finance the acquisition of certain
equipment and of certain improvements with respect to the Premises; and
WHEREAS, GELLC and CEDCO wish to amend and restate the Old Participating
Lease in light of the events and transactions described above.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, GELLC and CEDCO hereby agree as
follows:
2. DEFINITIONS.
The following terms will have the following meanings for all purposes of
this Lease:
"ANNUAL PERCENTAGE RENTAL" means with respect to any twelve month period
commencing on October 8, 1996, an amount equal to thirteen percent (13%) of
Gross Gaming Revenue for such twelve month period, and continuing for each
consecutive twelve month period thereafter for the term of this Lease, provided
however, that such annual percentage rental shall be reduced: (i) on October 8,
1999 to 12% of Gross Gaming Revenue; (ii) on October 8, 2000 to 11 % of Gross
Gaming Revenue; and (iii) on October 2001 to 10% of Gross Gaming Revenue. No
Annual Percentage Rental shall accrue with respect to any period after August
19, 2002. Notwithstanding the above, in the event Gross Gaming Revenue for any
twelve month period exceeds $20,000,000, ten percent (10%) shall be the
applicable percentage to all amounts in excess of such threshold.
"BASE ANNUAL RENTAL" means: (i) $45,000 for each Lease Year, plus a
one-time rental payment equal to $455,000 which will be payable (a) on or before
the first day of the seventh full Lease Year in the event the Lease Term is not
extended pursuant to Section 4, or (b) on or before the first day of the
fourteenth full Lease Year in the event the Lease Term is extended pursuant to
Section 4 or (ii) in the event CEDCO effectuates a buy-down pursuant to Section
5(e), $1.00 for any Lease Year thereafter.
2 - PARTICIPATING LEASE
"BASE MONTHLY RENTAL" means an amount equal to 1/12 of the Base Annual
Rental.
"BUSINESS LEASE" means that certain lease agreement dated February 9,
1995 between CEDCO, as Lessee, and the Coquille Indian Tribe, as Lessor.
"CASINO IMPROVEMENTS" means the improvements to the gaming facility to
be constructed upon the Premises, as described on Exhibit B.
"COMMENCEMENT DATE" means May 19, 1995, which was the date the Premises
were opened to the public and gaming activities commenced.
"COMMERCIAL ACTIVITIES" means any commercial activities conducted on the
Premises, including, without limitation, gaming activities, collateral economic
activities, other commercial activities and the rental or leasing of the
Premises, any improvements thereon or any portion thereof.
"COMPACT" means the compact dated December 8,1994, as amended, entered
into by and between the Coquille Indian Tribe and the State of Oregon as
required by IGRA.
"DAILY PERCENTAGE RENTAL" means with respect to each day during the term
of the Lease commencing on October 8, 1996, an amount equal to thirteen percent
(13%) of Gross Gaming Revenue for such day, provided however, that such daily
percentage rental shall be reduced: (i) on October 8, 1999 to 12% of Gross
Gaming Revenue for each such day; (ii) on October 8, 2000 to 11% of Gross Gaming
Revenue for each such day; and (iii) on October 8, 2001 to 10% of Gross Gaming
Revenue for each such day. No Annual Percentage Rental shall accrue with respect
to any period after August 19, 2002. Notwithstanding the above, in the event
Gross Gaming Revenue for any twelve month period exceeds $20,000,000, ten
percent (10%) shall be the applicable percentage to all amounts in excess of
such threshold.
"GAMING LAWS" means the Compact, IGRA and the Ordinance.
"GELLC" means Gaming Entertainment L.L.C., a Delaware limited liability
company.
"GROSS GAMING REVENUE" means all revenues, sales or other gross proceeds
(after payment of cash prizes and after payment of non-cash prizes which
non-cash prizes shall be treated the same as cash prizes for the purpose of
determining Gross Gaming Revenue provided that the hold percentage is set to
cover the cost of such non-cash prizes) derived from or with respect to the
operation of electronic and mechanical gaming devices (slot machines and/or
video lottery terminals) now possessed by CEDCO or hereafter acquired by CEDCO
pursuant to a lease or otherwise, live keno, live bingo and electronic bingo
machines, and/or wagering with pull-tabs, but excluding revenues from all other
table games. Complimentary plays, chips, token or any other complementary
charges shall be deemed an
3-PARTICIPATING LEASE
operating expenses and shall not be deducted from gross revenues for purposes
of calculating Gross Gaming Revenue.
"IGRA" means the Indian Gaming Regulatory Act of 1988, P.L. 100-497, 25
U.S.C. /section/ 2701 ET SEQ. and any and all rules, ordinances and guidelines
promulgated pursuant to any such laws, and any amendments, substitutions or
replacements of any of the foregoing.
"LAWS" means collectively the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. /section/ 9601, ET SEQ., the Hazardous
Materials Transportation Act, 49 U.S.C. /section/ 1801, ET SEQ., the Toxic
Substances Control Act, 15 U.S.C. /section/ 2601, ET SEQ., the Resource
Conservation and Recovery Act, 42 U.S.C. /section/ 6901, ET SEQ., the Petroleum
Marketing Practices Act, 15 U.S.C. /section/ 2801, ET SEQ., the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C. /section/ 9601, ET SEQ.,
any applicable federal, state, county or local laws applicable to or regulating
hazardous substances, toxic wastes, pollutants or similar environmental or
safety subjects, any rules, ordinances and guidelines promulgated pursuant to
any one or more or such laws, and any amendments, substitutions or replace-
ments of any of the foregoing.
"LEASE TERM" means the period described in Section 4 hereof.
"LEASE YEAR" means: (i) for the first year, the approximately twelve
(12) month period commencing on the Commencement Date of this Lease and ending
on the last calendar day of the month in which the anniversary date of this
Lease occurs; and (ii) for each year thereafter, the twelve (12) month period
commencing on the first calendar day of the month subsequent to the anniversary
date of this Lease and ending on the last calendar day of the month in which the
anniversary date of this Lease occurs.
"LESSEE" means Coquille Economic Development Corporation, a corporation
wholly owned by and chartered by the Coquille Indian Tribe.
"LESSOR" means GELLC, as successor in interest to FHR, or its successors
or assigns.
"LOAN AGREEMENT" means that certain loan agreement executed by and
between CEDCO and Xxxxxx & Xxxxxxxxx Investments Corporation of even date
herewith.
"LEASEHOLD MORTGAGEE" means the beneficiary of an instrument encumbering
this Lease.
"MASTER LEASE" means that certain First Amended and Restated Master
Lease dated of even date herewith between CEDCO, as Lessor and GELLC, as Lessee.
"MONTHLY PERCENTAGE RENTAL" means with respect to month commencing on
October 8, 1996 and for each month thereafter through the term of the Lease, an
amount
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equal to thirteen percent (13%) of Gross Gaming Revenue for such month,
provided however, that such monthly percentage rental shall be reduced: (i) for
months commencing on and after October 8, 1999 to 12% of Gross Gaming Revenue
for each such month; (ii) for months commencing on and after October 8, 2000 to
11% of Gross Gaming Revenue for each such month; and (iii) for months commencing
on and after October 8, 2001 to 10% of Gross Gaming Revenue for each such month.
No Annual Percentage Rental shall accrue with respect to any period after August
19, 2002. Notwithstanding the above, in the event Gross Gaming Revenue for any
twelve month period exceeds $20,000,000, ten percent (10%) shall be the
applicable percentage to all amounts in excess of such threshold.
"ORDINANCE" means the ordinance enacted by the Tribe in compliance with
the Compact between the Tribe and the State of Oregon and the Indian Gaming
Regulatory Act ("IGRA") for the operation, conduct of gaming in order to fund
the Tribe's government operations and programs, including, without limitation,
programs which provide for the general welfare of the Tribe and its members,
promote the economic development of the Tribe and provide employment and
training opportunities for Tribal members, Indians generally and persons who
reside in the surrounding communities. As used herein, the term "Ordinance"
means the ordinance enacted by the Tribe in compliance with the Compact and IGRA
or as amended or modified hereafter.
"PLANS AND SPECIFICATIONS" means the plans and specifications respecting
the Casino Improvements, all as required pursuant to Section 12 of the Master
Lease.
"PREMISES" means the real property together with all buildings,
structures, fixtures and improvements located thereon or thereunder or to be
located thereon or thereunder, in Coos County, Oregon, commonly known as the
Mill Casino, a legal description and map which is contained in Exhibit A,
together with such other parcels, rights of way and easements acquired or leased
by CEDCO, the Tribe, and or their affiliates to enhance the businesses operated
at the Mill Casino.
"REGULATED SUBSTANCE" means any term as described or defined in any of
the Laws or any applicable federal, state, county or local laws applicable to or
regulating UST.
"RENTAL PAYMENTS" means all current or accrued Daily Percentage Rental,
Base Monthly Rental and Monthly Percentage Rental and other sums due and payable
pursuant to Section 5.
"UST" means any one or combination of underground tanks (including
underground pipes connected thereto) that are used to contain an accumulation of
Regulated Substances and the volume of which (including the pipes connected
thereto) are ten (10) percent or more beneath the surface of the ground.
3 - PARTICIPATING LEASE
3. DEMISE OF PREMISES.
In consideration of the rentals and other sums to be paid by CEDCO and
of the other terms, covenants and conditions on CEDCO's part to be kept and
performed, GELLC hereby leases to CEDCO, and CEDCO hereby takes and hires the
Premises.
4. LEASE TERM.
(a) This Lease will be effective and enforceable from the date hereof
(the "Effective Date"). Subject to earlier termination as provided herein, the
primary term of this Lease (the "Primary Lease Term") will commence as of the
Effective Date and, unless terminated sooner as provided in this Lease, will
expire on the later of:
(i) midnight on August 19, 2002; or
(ii) until GELLC has received all Rental Payments due under this
Lease and all principal and interest due under the Loan Agreement.
(b) [RESERVED]
(c) The Lease will be for an initial term of seven (7) years ("Primary
Lease Term") pursuant to the terms and conditions provided in the Lease. GELLC
hereby grants to CEDCO the right to extend the Primary Lease Term for three
additional terms. If the Primary Lease Term is extended, the first additional
term will be for seven (7) years. If extended thereafter, the second additional
term will be for seven (7) years and if extended thereafter, the third
additional term will be for four (4) years. The terms and conditions of any
additional term will be mutually agreed upon by GELLC and CEDCO and may differ
to the terms and conditions provided in this Lease. The Lease will be
automatically extended, as described above, unless CEDCO gives written notice to
GELLC within ninety (90) days of the expiration of the Lease of its intention to
renegotiate the Lease. If the parties are unable to agree on the terms and
conditions of any additional term, CEDCO will have the right to renew the Lease
on the same terms and conditions set forth herein for three additional terms as
described above, provided however, that the Lease payments will be $1.00 per
year.
5. RENTAL AND OTHER PAYMENTS.
(a) Commencing as of the first (1st) day of the third (3rd) month
following the Commencement Date, CEDCO will pay the Base Monthly Rental each
month on or before the first (1st) day of the month for which it is due, and
with respect to the first payment, such payment will include all Base Monthly
Rental accruing from the date of disbursement of the Advance Rental (as defined
and set forth in the Master Lease). If the Commencement Date commences other
than on the first (1st) day of a calendar month, the Base Monthly
6-PARTICIPATING LEASE
Rental for the first (1st) month will be prorated from the date on which the
Commencement Date commences to and including the last day of said month.
(b) [Reserved.]
(c) CEDCO acknowledges and consents to formation of the tenant
association pursuant to Section 30(c) of the Master Lease. CEDCO agrees to pay
all charges assessed by the tenant association with the Monthly Percentage
Rental due for each month.
(d) CEDCO shall furnish to GELLC a written statement setting forth the
amounts paid and/or payable pursuant to this Lease at the time each payment is
due. In the event CEDCO has not paid the amounts due for that month, or any
other charges due for that month, it shall pay the deficiency at the time the
written statement is due together with interest at the Prime Rate (as defined in
the Loan Agreement) plus 2%. To the extent that the Monthly Percentage Rental
Payments actually paid is in excess of the amounts due hereunder or under the
other Transaction Documents (as defined in the Loan Agreement), such excess
shall be credited against future amounts due and owing from CEDCO with interest
accruing at the Prime Rate (as defined in the Loan Agreement) plus two percent
(2%) from the date of any such excess.
(e) CEDCO acknowledges that $500,000.00 was paid by FHR as prepaid rent
under the Master Lease. CEDCO utilized the loan proceeds, on August 19, 1995, to
buy-down the Base Annual Rental in an amount equal to $500,000.00 which has been
repaid as of even date herewith. The Base Annual Rental shall be $1.00 per year.
(f) For any partial year between the commencement of the Lease Term and
the beginning of the Lease Year, calculations of Base Annual Rental will be
prorated on the basis of the ratio of the number of days in such partial year to
three hundred sixty-five (365). For any Lease Year in which no indebtedness
remains outstanding under the Loan Agreement, calculations of Annual Percentage
Rental will be prorated on the basis of the number of days in such partial year
percentage rental applies to three hundred sixty-five (365).
6. RENTAL TO BE NET TO LESSOR.
The Base Annual Rental and Annual Percentage Rental payable hereunder
will be net to GELLC, so that this Lease will yield to GELLC the rentals
specified during the Lease Term, and that all costs, expenses and obligations of
every kind and nature whatsoever relating to the Premises will be paid by CEDCO.
7. TAXES AND ASSESSMENTS, UTILITIES, INSURANCE AND TAX AND
INSURANCE IMPOUND.
CEDCO will pay, as the same become due and prior to delinquency, all
taxes and assessments, insurance and tax insurance impound amount which GELLC is
required to pay
7-PARTICIPATING LEASE
pursuant to Sections 6, 7 and 8 of the Master Lease which are incorporated
herein by this reference or any other amount which would affect in any manner
the net return realized by GELLC under this Lease. CEDCO will maintain the
insurance as specified in Section 8 of the Master Lease.
8. PAYMENT OF RENTAL AND OTHER SUMS.
All rental and other sums which CEDCO is required to pay hereunder shall
be payable in full when due without right of setoff against any other claim or
indebtedness of GELLC. CEDCO agrees to account to GELLC for all Gross Gaming
Revenue.CEDCO shall cause GELLC to be paid the Rental Payments pursuant to
provisions of the Loan Agreement and the Depository Agreement.
9. PLANS, SPECIFICATIONS AND LOCATION OF IMPROVEMENTS ON THE PREMISES.
Pursuant to the Master Lease, CEDCO will prepare and forward to GELLC
the Plans and Specifications regarding the Casino Improvements. Such Plans and
Specifications will include detailed drawings, specifications and preliminary
cost estimates for the Casino Improvements. Notwithstanding the above, GELLC
shall have no duty, obligation or right to approve Plans and Specifications
under this Section.
10. PERMITS.
CEDCO will make application for and attempt to procure all necessary
permits from all applicable governmental agencies authorizing all activities
contemplated herein including, without limitation, all necessary building,
plumbing and electrical permits contemplated pursuant to the Plans and
Specifications.
11. CONSTRUCTION AND IMPROVEMENTS ON THE PREMISES.
(a) CEDCO will develop a detailed construction cost estimate and
proposed construction contract with respect to the Casino Improvements at the
soonest practicable date after preparation of the Plans and Specifications. All
contractors and subcontractors will be bonded.
(b) Notwithstanding the above, GELLC shall have no duty or obligation
nor the right to approve Plans and Specifications or other documents under this
Section.
12. DELIVERY OF EQUIPMENT AND STOCK.
CEDCO will have the right to deliver and install on the Premises any
equipment, trade fixtures, stock or other materials to be used by it. All
equipment or other personal
8-PARTICIPATING LEASE
property used in the improvements and on the Premises supplied or installed at
the sole cost and expense of CEDCO will be the sole property of CEDCO.
13. ALTERATIONS.
CEDCO will not commit actual or constructive waste upon the Premises
without the prior written consent of GELLC. Any work at any time commenced by
CEDCO on the Premises will be pursued diligently to completion, will be of good
workmanship and materials and will comply fully with all the terms of this
Lease.
14. USE.
CEDCO will use the Premises solely for the operation of a gaming
business in accordance with the Gaming Laws and for other Commercial Activities
and will diligently operate such businesses during the Lease Term. CEDCO will at
all times during the Lease Term diligently operate a gaming facility on the
Premises in a manner which will maximize profits on the Premises. CEDCO will be
deemed a fiduciary with respect to GELLC regarding enforcement of this Section
14. CEDCO will not cease diligent operation of business hereunder except by: (i)
giving written notice to GELLC one hundred (100) days prior to the day CEDCO
ceases operation; (ii) providing adequate protection of the Premises during any
period of vacancy; and (iii) paying to GELLC all amounts advanced to develop and
construct the Premises as set forth herein and the Master Lease. Notwithstanding
anything herein to the contrary, CEDCO will pay monthly as Base Annual Rental
and Annual Percentage Rental during any period in which CEDCO discontinues
operation an amount equal to the mean average of the sum of the Base Annual
Rental and Annual Percentage Rental for the three (3) Lease Years immediately
preceding such period. The exceptions listed in this Section 14 will not effect
CEDCO's responsibility for breach hereunder.
15. PARKING AND COMMON USE AREAS AND FACILITIES.
All common facilities, automobile parking areas, driveways, entrances,
exits and other facilities furnished by CEDCO in or near the Premises,
including, without limitation, employee parking areas, truck ways, loading
docks, pedestrian sidewalks and ramps, landscaped areas, interior and exterior
hall and stairways and other areas and improvements provided for the general and
common use by the tenants, their officers, agents, employees and other invitees,
will at all times be subject to the control and management of CEDCO.
16. COMPLIANCE WITH LAWS.
CEDCO's use and occupation of the Premises, and the condition thereof,
will comply with the Laws, Gaming Laws or any other applicable governmental
requirement, and CEDCO will comply with all of the such laws during the Lease
Term and any extensions or renewals thereof, including, without limitation, any
financial responsibility and assurance requirements imposed thereunder. CEDCO
will, at CEDCO's sole cost and expense, comply
9-PARTICIPATING LEASE
with all applicable directions, rules and regulations of the fire marshal,
health officers, building inspectors, federal, state and local agencies and
regulatory bodies, including but not limited to environmental agency having
jurisdiction. CEDCO will not permit any act or condition to exist in or about
the Premises which will increase any insurance rate, except when such acts are
required in the normal course of its business and CEDCO will pay for such
increase. CEDCO will supply GELLC with a copy of any notification or report
required by the Laws or Gaming Laws and given to any federal, state or local
agency in connection with the Premises within five (5) days of the date that
such notification or report is sent to such agency.
17. OPERATION OF PREMISES.
CEDCO will operate and maintain the Premises in compliance with and will
not cause or permit the Premises to be operated in violation of, any of the
Gaming Laws or Laws. CEDCO will comply with all applicable reporting and
recordkeeping requirements imposed thereunder and will provide GELLC access to
all such reports and records. CEDCO will immediately notify GELLC, in writing,
of (i) any and all remedial or other governmental or regulatory actions
threatened, instituted or completed pursuant to any of the Laws or Gaming Laws
in respect of the Premises or the activities conducted thereon and (ii) all
claims made or threatened by any third party against CEDCO or the Premises
relating to any demand, cause of action, allegation, order, violation, damage,
injury, judgment, penalty or fine, cost of remedial action or any other cost or
expense whatsoever resulting from the violation or alleged violation of any of
the Laws or Gaming Laws.
18. MAINTENANCE.
CEDCO hereby accepts the Premises "as is," with no representation or
warranty of GELLC as to the condition thereof. CEDCO will at all times at its
own expense maintain, repair and replace, as necessary, all improvements,
personal property, equipment and fixtures located on the Premises and will keep
the same in good working condition, including all portions of the Premises and
the Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
19. INDEMNIFICATION.
Except for negligence of GELLC or any of its members, officers, agents
or employees, CEDCO will indemnify and hold harmless GELLC and any of GELLC's
members, officers, directors, agents and/or employees, from and against any and
all claims, demands, causes of action, suits, proceedings, liabilities, damages,
losses, costs and expenses, including attorneys' fees, caused by, incurred or
resulting from CEDCO's or the Tribe's or their respective officers', agents or
employees' operations of or relating in any manner to the Premises, whether
relating to original design or construction, latent defects, alteration,
maintenance, the presence on or under, or the escape, seepage, leakage, spillage
or discharge of Regulated Substances in respect of the Premises, violations of
any of the
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Laws or Gaming Laws, or any governmental regulations or other applicable
governmental requirements, including but not limited to thereon, supervision or
otherwise, or from any breach of; default under or failure to perform any term
or provision of this agreement by CEDCO, its officers, employees, agents or
other persons. It is expressly understood that CEDCO's obligations under this
paragraph will survive the expiration or earlier termination of this Lease for
any reason.
20. QUIET ENJOYMENT. [INTENTIONALLY OMITTED.]
21. CONDEMNATION OR DESTRUCTION.
(a) In case of a taking of all or any part of the Premises or the
commencement of any proceeding or negotiations which might result in a taking of
all or any portion of the Premises, for any public or quasi-public purpose by
any lawful power or authority by exercise of the right of condemnation or
eminent domain or by agreement between GELLC, CEDCO and those authorized to
exercise such right ("Taking"), CEDCO will promptly give written notice thereof
to GELLC, generally describing the nature and extent of such Taking. CEDCO may
prosecute, if permissible under the law of the sovereign exercising condemnation
jurisdiction, any award, compensation or damage resulting from a Taking, to
which it is entitled but will not have the right to GELLC's award, compensation
or damages. CEDCO will be entitled to any award, compensation or damages
designated as CEDCO's resulting from a Taking.
(b) In case of a Taking of the whole of the Premises, other than for
temporary use ("Total Taking"), this Lease will terminate as of the date of such
Total Taking and all rental and other sum or sums of money and other charges
provided to be paid by CEDCO will be apportioned and paid to the date of such
Total Taking. Total Taking will include a taking of substantially all of the
Premises if the remainder of the Premises is not useable and cannot be made
useable for the purposes provided herein.
(c) In case of a temporary taking or a temporary loss of use of the
whole or any part of the Premises by a Taking (a "Temporary Taking"), this Lease
will remain in full force and effect without any reduction of rent or any other
sum payable hereunder. CEDCO will be entitled to the entire award for a
Temporary Taking, whether paid by damages, rent or otherwise, unless the period
of occupation and use by the condemning authorities will extend beyond the date
of expiration of this Lease, in which case the award made for such taking will
be apportioned between GELLC and CEDCO as of the date of such expiration. At the
termination of any such use or occupation of the Premises, CEDCO will, at its
own cost and expense, promptly commence and complete the restoration of the
Premises. CEDCO will not be required to make the restoration if the term of this
Lease will expire prior to, or within one hundred eighty (180) days after, the
date of expiration of the Temporary Taking, and in such event GELLC will be
entitled to recover all damages and awards arising out of the failure of the
condemning authority to repair and restore the building at the expiration of the
Temporary Taking.
11 - PARTICIPATING LEASE
(d) In the event of a Taking of less than all of the Premises other than
a Temporary Taking (a "Partial Taking") or of damage or destruction to all or
any part of the Premises all awards, compensation or damages will be paid to
GELLC, and GELLC will have the option to terminate this Lease by notifying CEDCO
in writing within sixty (60) days after CEDCO gives GELLC notice of such damage
or destruction or that title has vested in the Taking authority. CEDCO will
thereupon have a period of sixty (60) days in which to elect in writing to
continue this Lease on the terms herein provided. If CEDCO does not elect to
continue this Lease or fails during such sixty (60) day period to elect to
continue this Lease, then this Lease will terminate as of the last day of the
month during which such period expired. CEDCO will then immediately vacate and
surrender the Premises, all obligations of either party hereunder will cease as
of the date of termination and GELLC may retain all such awards, compensation or
damages. If GELLC does not elect to continue this Lease, then this Lease will
continue on the following terms: Rental and other sums due under this Lease will
continue unabated, and CEDCO will promptly commence and diligently prosecute
restoration of the Premises to the same condition, as nearly as practicable, as
prior to such Partial Taking, damage or destruction as approved by GELLC in its
sole discretion. GELLC will promptly make available in installments as
restoration progresses an amount equal to any award, compensation or damages
received by GELLC, upon written request of CEDCO accompanied by evidence
reasonably satisfactory to GELLC that such amount has been paid or is due and
payable and is properly a part of such costs and that there are no mechanics' or
similar liens for labor and materials theretofore supplied in connection with
the restoration. GELLC will be entitled to keep any portion of such award,
compensation or damages which may be in excess of the cost of restoration, and
CEDCO will bear all additional costs, fees and expenses of such restoration in
excess of the amount of any such award, compensation or damages.
(e) Notwithstanding the foregoing, if at the time of any Taking or at
any time thereafter CEDCO is in default under this Lease and such default is
continuing, GELLC is hereby authorized and empowered, in the name and on behalf
of CEDCO and otherwise, to file and prosecute CEDCO's claim, if any, for an
award on account of any Taking and to collect such award and apply the same,
after deducting all costs, fees and expenses, including attorney's fees,
incident to the collection thereof, to the curing of such default and any other
then existing default under this Lease.
22. INSPECTION.
GELLC and its authorized representatives will have the right, upon
giving reasonable notice, to enter the Premises and the Premises or any part
thereof and inspect the same and make photographic or other evidence concerning
CEDCO's compliance with the terms of this Lease. CEDCO will select generally
accepted security and accounting systems approved by an independent third party
testing firm chosen by CEDCO. GELLC will be provided access to such systems as
GELLC may from time to time determine (including, without limitation, on-line or
dial up access to any such systems). CEDCO will keep full, complete and accurate
books, records and accounts of all business done including any sales or other
tax
12 - PARTICIPATING LEASE
reports that CEDCO may be required to furnish to any governmental agency at or
from the Premises and Premises sufficient to permit GELLC to verify all
statements, certificates and accounting delivered to GELLC. GELLC will have full
and complete access to, and will have the right to inspect all books, records,
accounts and security and accounting systems as it may from time to time
determine in its discretion, provided however, that such access does not
materially interfere with CEDCO's operation of the Premises. Should any audit by
GELLC reveal that any statement or account rendered by CEDCO was in error by ten
percent (10%) or more, then in addition to any other remedy of GELLC, CEDCO will
reimburse the cost of such audit to GELLC upon demand.
CEDCO shall maintain all books and records in accordance with Generally
Accepted Accounting Principles. CEDCO shall keep all funds from the gaming
operation separate from all other funds maintained by CEDCO. CEDCO shall
properly account to GELLC for all Gross Gaming Revenue. The parties desire to
utilize electronic or telephonic technology to determine and account for the
amount of Gross Gaming Revenue on a daily basis. CEDCO shall use its best
efforts to provide and maintain a central accounting system utilizing such
technology that tracks and properly accounts for Gross Gaming Revenue. CEDCO
shall insure GELLC has electronic, telephonic, manual or such other access as
GELLC may determine, to the central accounting system and is provided not less
than the same access and information as CEDCO is provided. GELLC shall have
access to all information generated by the central accounting system as it may
from time to time determine. Gross Gaming Revenue shall be verified by GELLC in
accordance with reports generated by the central accounting system. CEDCO will
acquire the central accounting system provided for in this paragraph. In the
event Gross Gaming Revenue cannot be monitored by the central accounting system,
CEDCO shall account to GELLC for Gross Gaming Revenue to GELLC on a daily basis.
23. TESTING.
CEDCO will have the accounting and security systems, the gaming
equipment and the table game, keno and pari-mutual operations inspected and
tested from time to time pursuant to industry standard audit techniques by a
testing firm acceptable to GELLC. CEDCO will provide GELLC with written
certified results of all tests or inspections performed on the Premises or the
Premises. All costs associated with the inspection, preparation and certifica-
tion of results, as well as those associated with correcting problems revealed
by said inspections, will be paid by CEDCO. GELLC hereby reserves the right to
require inspections more frequently than annually, but at GELLC's own expense.
All inspections and tests performed in compliance with this Section 23 will be
in compliance with the Gaming Laws and any other applicable governmental
regulation.
24. LENDER REQUIREMENTS.
GELLC and CEDCO, in its use, occupancy and maintenance of the Premises
will comply with all requirements of the Loan Agreement and the Master Lease.
13 - PARTICIPATING LEASE
25. DEFAULT AND REMEDIES.
(a) Each of the following will be deemed a breach of this Lease and
a default:
(i) If any material representation or warranty of GELLC or CEDCO
herein or in the Business Lease, Master Lease or Loan Agreement or any
other agreement executed in connection with this Lease was false when
made, or in the event that any such representation or warranty is
continuing and becomes materially false at any time through no fault of
the other party, or if GELLC or CEDCO renders any materially false
statement or account;
(ii) If any rent or other monetary sums due remain unpaid for
fifteen (15) days after the date such payment is due;
(iii) If GELLC or CEDCO fails to timely perform any of the
covenants, conditions or obligations of this Lease;
(iv) If there is a breach or default hereunder or under the
Business Lease, the Master Lease or the Loan Agreement, or if there is a
breach or default under any security agreement executed in connection
with the Loan Agreement or under any other agreement between (1) GELLC
or any general or limited partnership organized by GELLC in accordance
with the laws of any state of the United States or its territories or
any partner, officer, director or shareholder of GELLC, or any
corporation or other entity controlled by GELLC, or by any partner,
officer, director or shareholder of GELLC, and (2) CEDCO;
(v) If GELLC or CEDCO becomes insolvent by reason of its
inability to pay its debts as they mature, performs any act of
bankruptcy, or makes an assignment for the benefit of creditors or an
admission of its inability to pay its obligations as they become due;
(vi) If GELLC or CEDCO violates any Law, Gaming Law, health,
safety or sanitation law, ordinance or regulation or operates the
Premises in a manner that presents a material health or safety hazard to
its customers or the public; and/or
(vii) If GELLC or CEDCO fails to materially comply with any of the
Laws, Gaming Laws or any other federal, state and local laws relating to
underground storage facilities and other applicable environmental
matters.
(b) If any such breach or default does not involve the payment of any
rental or other monetary sum, is not willful or intentional, does not place any
rights or property of the nonbreaching party in immediate jeopardy, is not known
to the breaching party (unless the nonbreaching party has given the other notice
thereof) and is within the reasonable power of the breaching party to cure
within sixty (60) days after receipt of notice thereof, then such
14 - PARTICIPATING LEASE
event will not constitute a default hereunder, unless otherwise expressly
provided herein, unless and until the xxx-xxxxxxxxx.xxxxx has given the other
notice thereof and a period of sixty (60) days has elapsed, during which period
the breaching party may correct or cure such event, upon failure of which a
default will be deemed to have occurred hereunder without further notice or
demand of any kind. If such breach or default cannot reasonably be cured within
the sixty (60) day period, and the breaching party is diligently pursuing a cure
of such breach or default, then breaching party will after receiving notice
specified herein have a reasonable period to cure such breach or default not to
exceed six (6) months.
(c) In the event of any breach or default, and without any notice
except, if applicable, the notice prior to default required under certain
circumstances by paragraph (b) above or such other notice as may be required by
law and cannot be waived by CEDCO (all other notices being hereby waived), GELLC
will be entitled to exercise, at is option, concurrently, successively or in any
combination, all remedies available at law or in equity, including without
limitation any one or more of the following:
(i) To terminate this Lease and call due any and all amounts
due and owing by CEDCO under this Lease;
(ii) To reenter and take possession of the Premises or any part
thereof (which reentry will not operate to terminate this Lease unless
GELLC expressly so elects), of any or all personal property or fixtures
of CEDCO upon the Premises related to the operation of the Mill Casino,
the equipment and of all franchise, licenses, permits and other rights
or privileges of CEDCO pertaining to the use and operation of the
Premises and to conduct business thereon in the name of GELLC or of
CEDCO but for the sole profit and benefit of GELLC and without
compensation to CEDCO, provided however, GELLC will not conduct or
otherwise operate any gaming on the Premises except as otherwise
authorized by law;
(iii) To seize all personal property, equipment or fixtures upon
the Premises which CEDCO owns or in which it has an interest related to
the operation of the Mill Casino, in which GELLC will have a landlord's
lien and is hereby granted a security interest, and to dispose thereof
in accordance with laws prevailing at the time and place of such seizure
or to remove all or any portion of such property and cause the same to
be stored in a public warehouse or elsewhere at the cost of CEDCO;
(iv) To relet the Premises or any part thereof for such term or
terms (including a term which extends beyond the original term of this
Lease), at such rentals and upon such other terms as GELLC, in its sole
discretion, may determine, with all proceeds received from such
reletting being applied to the rentals and other sums due from CEDCO in
such order as GELLC may, in its sole discretion, determine, with CEDCO
remaining liable for any deficiency;
15 - PARTICIPATING LEASE
(v) To recover from CEDCO an amount equal to the difference
between the rentals and such other sums (including all sums required to
be paid by CEDCO, such as taxes and insurance) to be received from the
date of such breach to the expiration of the original term hereof and
the reasonable long term rental value of the Premises for the same
period; and/or
(vi) To recover from CEDCO all expenses, including attorneys'
fees, reasonably paid or incurred by GELLC as a result of such breach.
(vii) In order to cure a default under this Lease, avoid
termination of the gaming operation at the Premises and to provide a
method to pay GELLC the Rental Payments, the Tribe, CEDCO and GELLC
agree that GELLC can request, but shall not require, the Tribe to
continue to operate the gaming facility at the Premises under one of the
following options wherein the Tribe shall: (i) remove all officers
and/or directors of CEDCO who are responsible for managing the gaming
operation and to appoint such officers and/or directors as GELLC may
approve to manage the gaming operation on the Premises on behalf of the
Tribe; (ii) charter and establish a newly formed corporation with
officers and directors approved by GELLC to replace CEDCO as the entity
managing the gaming operation at the Premises; (iii) appoint a receiver
on behalf of the Tribe which is acceptable to GELLC to manage the gaming
operation at the premises; and/or (iv) enter into a contract on terms,
and with a management company acceptable to GELLC which has been, or in
GELLC's opinion is capable of being, approved by the National Indian
Gaming Commission.
In addition, in the event of any breach or default by CEDCO, GELLC may,
but will not be obligated to, immediately or at any time thereafter, and without
notice, except as required herein, correct such breach or default without,
however, curing the same for the account and at the expense of CEDCO. Any sum or
sums so paid by GELLC, together with interest at the then existing maximum legal
rate, but not higher than prime plus two percent (2%), and all costs and
damages, will be deemed to be additional rent hereunder and will be immediately
due from CEDCO to GELLC.
26. MORTGAGE AND SUBORDINATION.
(a) GELLC will acquire a lien upon the Business Lease, the Master Lease,
all furnishings, fixtures, equipment, decoration, supplies, accessories and
other personal property which CEDCO owns or in which it has an interest located
on the Premises to secure the payment of all sums due thereunder and the
performance of all other obligations of CEDCO under this Lease, the Master
Lease, the Business Lease, the Loan Agreement and related agreements. CEDCO's
interest in the Business Lease, the Master Lease, this Lease, leasehold
improvements or equipment will be subordinate to any encumbrances placed upon
such assets only if placed by or at the written direction of GELLC pursuant to a
release executed by GELLC. CEDCO agrees to execute such subordination documents
as GELLC will from time to time require. CEDCO will keep the Premises free from
any liens for work
16 - PARTICIPATING LEASE
performed, materials furnished or obligations incurred without the prior written
authorization from GELLC. Notwithstanding any other provision to the contrary,
nothing herein shall entitle GELLC or any other entity to a lien on real
property held by the United States in trust for the Coquille Tribe, or to a lien
on any other property owned by the United States and used by the Tribe, or on
any Tribal assets that, by federal statute or regulation, are restricted or
excluded from liens or mortgage (specifically excepting those encumbrances
approved by the Secretary and those assets constructed or procured pursuant to
thus Lease or any transaction entered into in connection with this Lease or the
proceeds, profits or rents to be derived hereof or therefrom). NOTICE IS HEREBY
GIVEN THAT, EXCEPT TO THE EXTENT NECESSARY TO SECURE LOANS EXTENDED BY LESSOR OR
AN AFFILIATE OF LESSOR, NEITHER LESSEE NOR ITS PREDECESSORS IN INTEREST (OTHER
THAN LESSOR) ARE AUTHORIZED TO PLACE ANY LIEN, MORTGAGE, DEED OR TRUST OR
ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF THE PREMISES, IMPROVEMENTS,
EQUIPMENT OR LESSOR'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED
TRANSACTION SHALL BE VOID WITHOUT A WRITTEN RELEASE FROM LESSOR.
(b) This Lease at all times will be subordinate to the lien of any
ground leases, mortgage, mortgages, security agreements or trust deeds now or
hereafter placed upon the Premises by GELLC,with CEDCO's consent, and CEDCO
covenants and agrees to execute and deliver, upon demand, such further
instruments subordinating this Lease to the lien of any such ground lease,
mortgage, mortgages, security agreements or trust deeds as will be desired by
GELLC, or any mortgagees or proposed mortgagees or trustees under mortgages or
trust deeds, upon the condition that CEDCO will have the right to remain in
possession of the Premises under the terms of this Lease, notwithstanding any
default in any such mortgage, mortgages, trust deed or trust deeds, or after
foreclosure thereof, so long as CEDCO is not in default under any of the
covenants, conditions and agreements contained in this Lease.
(c) Upon consent and release by GELLC, if any mortgagee or trustee
elects to have this Lease and the interest of CEDCO hereunder be superior to any
such interest or right and evidence such election by notice given to CEDCO, then
this Lease and the interest of CEDCO hereunder will be deemed superior to any
such mortgage or trust deed, whether this Lease was executed before or after
such mortgage or trust deed and in that event such mortgagee or trustee will
have the same rights with respect to this Lease as if it had been executed and
delivered prior to the execution and delivery of the mortgage or trust deed and
has been assigned to such mortgagee or trustee.
(d) [Reserved]
(e) CEDCO will execute and deliver whatever instruments may be required
for the purposes set forth in this Section 26, and in the event CEDCO fails so
to do within ten (10) days after demand in writing, CEDCO does hereby make,
constitute and irrevocably appoint GELLC as its agent and attorney-in-fact and
in its name, place and stead to do so.
17 - PARTICIPATING LEASE
27. ESTOPPEL CERTIFICATES.
At any time, and from time to time, CEDCO agrees, promptly and in no
event later than ten (10) days after a request in writing from GELLC, to
execute, acknowledge and deliver to GELLC a statement in writing certifying that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications) and the dates to which the rental and other charges have been
paid.
28. ASSIGNMENT.
(a) GELLC will have the right to sell or convey up to forty-nine percent
(49%) of its right, title and interest in this Lease in whole or in part with
the prior approval of CEDCO which consent will not be unreasonably withheld.
CEDCO may consider the proposed transferee's financial condition or moral
character or any reason CEDCO has previously declined to conduct business with
any such proposed transferee when determining whether or not to grant its
consent. CEDCO's consent will not be required for any transfer, assignment or
conveyance of this Lease, the Master Lease or any other agreement entered into
in connection with the transactions set forth herein to any affiliate of GELLC
and GELLC will be relieved from and after the date of any such transfer,
assignment or conveyance of liability for the performance of any obligation
contained herein. GELLC may sell or convey more than forty-nine percent (49%) of
its right, title and interest in this Lease only with the prior consent of CEDCO
which may be withheld in CEDCO's discretion. In the event of any such sale or
assignment other than a security assignment, GELLC will be relieved, from and
after the date of such transfer or conveyance, of liability for the performance
of any obligation contained herein, except for obligations or liabilities
accrued prior to such assignment or sale, provided however, any such loan will
grant CEDCO the right to cure any default by GELLC thereunder, by purchase or
otherwise. Notwithstanding any provision herein to the contrary, GELLC may make
a security assignment of its interest herein to one (1) or more institutional
lenders, provided however, any such loan will grant CEDCO the right to cure any
default by GELLC thereunder, by purchase or otherwise.
(b) CEDCO acknowledges that GELLC has been induced to enter into this
Lease in anticipation of transactions set forth in the Business Lease, the
Master Lease and the Loan Agreement with and upon the particular purposes for
which the Premises will be used. CEDCO acknowledges that only entities
affiliated with the Coquille Indian Tribe may operate the Premises in accordance
with the Plans and Specifications and agrees that it will not assign this Lease
or any interest therein, or a majority ownership interest in CEDCO, or permit an
assignment of this Lease by operation of law, or sublet all or any part of the
Premises, without the prior written consent of GELLC. GELLC may withhold or
condition such consent upon such matters as GELLC may in its sole discretion
determine, including without limitation, the experience and creditworthiness of
the assignee, the assumption by the assignee of all of CEDCO's obligations
hereunder by undertakings enforceable by CEDCO, the transfer to such assignee of
all necessary licenses and franchises to continue operating the
18 - PARTICIPATING LEASE
Premises for the purposes herein provided, receipt of such representations and
warranties from such assignee as GELLC may request, including such matters as
its organization, existence, good standing and finances and other matters,
whether or not similar in kind. Notwithstanding the above, the Tribe is not
required to obtain the consent of any other person to reorganize or amend the
Articles of Incorporation of CEDCO, or to transfer assets and liabilities of
CEDCO, or to assign any and all rights and obligations or interest under this
Lease to another Person, so long as the Person is either the Tribe, an entity or
instrumentality of the Tribe, or a wholly-owned corporation created by the Tribe
AND, provided that (i) the Tribe or CEDCO transfers the authority to conduct the
activities authorized by the Gaming Ordinance on behalf of the Tribe from CEDCO
to such Person, (ii) such Person expressly assumes the obligations of CEDCO
hereunder by a written instrument satisfactory to GELLC, executed and delivered
to GELLC by such Person, (iii) if such Person has sovereign immunity from suit,
such Person consents to be sued to the same extent CEDCO consented to be sued
herein, (iv) CEDCO delivers to GELLC a legal opinion of counsel acceptable to
GELLC stating that this Participating Lease is a valid, binding and enforceable
obligation of such Person and (v) such merger, consolidation, sale, transfer or
conveyance does not cause any lien or encumbrance on the Pledged Revenues (as
defined in the Depository Agreement) to arise prior to the right of GELLC to
receive Rental Payments hereunder; provided, further, that the Tribe shall
always have the sole proprietary interest and responsibility for the conduct of
any gaming activity as required by the IGRA. No such assignment or subletting
will relieve CEDCO, any prior assignee or any guarantor of their obligations
respecting this Lease.
(c) Members of GELLC shall not assign any interest in GELLC without
CEDCO's written consent.
29. DEVELOPMENT AND SUBLEASE OF THE SITE II PREMISES.
[INTENTIONALLY OMITTED.]
30. NOTICES.
All notices, demands, requests, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease will be
in writing and will be deemed to have been properly given if sent by registered
or certified mail, Federal Express, Airborne, Xxxxx, DHL, Express Mail,
Purolator or by other recognized overnight courier service (the "Courier
Service"), postage prepaid, to the parties at the addresses set forth below. All
notices will be deemed received when delivered but in no event later than five
(5) days after they are deposited with either the United States Postal Service
or the Courier Service, whichever shall first occur.
IF TO LESSEE, ADDRESSED TO:
COQUILLE ECONOMIC DEVELOPMENT CORPORATION
3201 TREMONT
19 - PARTICIPATING LEASE
XXXXX XXXX, XXXXXX 00000
ATTENTION: XXX XXXXX; AND
WITH COPIES TO:
Ater Xxxxx Xxxxxx Xxxxxx & Xxxxxxxx, LLP
Xxxxxxx X. Xxx
000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000;
Native American Program
Xxxxxx X. Xxxxxxx
000 XX Xxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000;
Coquille Indian Tribe
000 Xxxxx 00xx Xxxxxx
Xxxx Xxx, Xxxxxx 00000
Attn: Tribal Chairman
IF TO LESSOR, COPIES ADDRESSED TO:
Full House Resorts, Inc.
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx; and
GTECH Corporation
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxx Xxxxxx
WITH COPIES TO:
Xxxx X. Xxxxxxx
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000; and
Office of the General Counsel
GTECH Corporation
20 - PARTICIPATING LEASE
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
31. DISPUTE RESOLUTION.
(a) BINDING ARBITRATION. It is the intention of the parties to establish
a successful working relationship through open communications and to cooperate
as fully and reasonably as possible. However, should any dispute arise under
this Lease whether sounding in contract, tort or otherwise, which cannot be
resolved between the parties through their continuing communication, the
following procedure for resolution of all disputes arising hereunder through
binding arbitration shall apply:
(i) The parties shall each appoint an arbitrator within ten (10)
days of written notice by one of the parties that a dispute exists under
this Lease. In the event that either party fails to appoint an
arbitrator within such ten (10) day period then the appointed arbitrator
will be the sole arbitrator of the dispute notwithstanding Section
31(a)(ii). CEDCO's sole remedies with respect to any breach by GELLC of
the terms and conditions of this Lease will be limited to specific
enforcement or monetary damages and shall specifically exclude the right
of CEDCO to terminate this Lease.
(ii) Once the two arbitrators have been appointed, they will
agree upon and appoint, within ten (10) days following their
appointment, a third arbitrator, and if the two arbitrators cannot agree
upon a third arbitrator, the third arbitrator will be appointed in
accordance with the rules and procedures of the American Arbitration
Association then in existence. No arbitrator shall be related to or
affiliated with any party hereto.
(iii) Such arbitrator(s) will hold an arbitration hearing at
Portland, Oregon, within twenty (20) days after the third arbitrator is
appointed or there is a default in appointment of an arbitrator, as the
case may be. The hearing will be conducted in accordance with the
Commercial Arbitration Rules then in existence for the American
Arbitration Association. The arbitrator or arbitrators, as the case may
be, will allow each party to present its case, evidence and witnesses,
if any, in the presence of the other parties, and will render their
written determination within ten (10) days. Each party will bear the
costs of its own arbitrator, its own attorney's fees and costs, and
one-half the costs of the third arbitrator (if any).
(iv) The award of the majority of the arbitrators or the single
arbitrator, as the case may be, will be binding on the parties, and
either party may commence an action in an appropriate Federal District
Court to enforce an arbitration award. In the event that such court
determines it does not have subject matter jurisdiction such action may
be commenced or brought in the courts of the State of Oregon in the
manner set forth in Section 31(b)(vi).
21 - PARTICIPATING LEASE
(b) SOVEREIGN IMMUNITY: LIMITED WAIVER.
(i) Except as set forth in this Section, nothing in this Lease
is intended or will be construed to waive in any manner CEDCO's general
relief and immunity from suit with respect to any dispute or matter
outside of the terms of this Lease or any claims or demands of any
person or entity not a signatory to this Lease or not a successor,
permitted assign to this Lease or lessee or sublessee of all or part of
the Premises. Nothing is intended or shall be construed to be a waiver
or limitation on sovereign immunity except as provided expressly in this
Section.
(ii) With the goal of insuring the successful operation of the
Premises, thereby providing substantial economic and social benefits for
CEDCO and members of the Tribe, and to induce GELLC to enter into and
perform this Lease, CEDCO does hereby, subject always to the conditions
of paragraphs (ii), (iii), (iv), (v), (vi) and (vii) of this Section,
unequivocally waive its sovereign immunity from suit and binding
arbitration as to both jurisdiction and liability in regard to matters
involving or claimed to involve this Lease (the "Limited Waiver").
(iii) The Limited Waiver extends only to CEDCO's representations,
warranties, covenants, undertakings and obligations under this Lease,
and any lease by GELLC or any Sublease.
(iv) The Limited Waiver extends only to, and is for the sole
benefit of GELLC and its successors, permitted assigns, lessees and
sublessees. No other person or entity whatsoever, private, public or
governmental, shall have the right to use or assert the Limited Waiver
in any manner or for any purpose whatsoever.
(v) Under the Limited Waiver, GELLC and its successors,
permitted assigns, lessees and sublessees shall have the joint and
several right to a court order for (A.) equitable relief, whether by way
of injunction or otherwise, to enforce GELLC's rights, or CEDCO's duties
or obligations, or any rights, duties or obligations of any of lessees
or sublessees or any of them, under this Lease and/or (B.) enforcement
of an arbitration award under Section 31(a) and/or (C.) an order
compelling arbitration under Section 31(a).
(vi) If judicial proceedings are brought to compel arbitration,
enforce binding arbitration or register an arbitration award as set
forth in the Commercial Arbitration Rules of the American Arbitration
Association, such proceedings will be brought only in the United States
District Court for the District of Oregon unless by existing statute,
court rule or clear judicial precedent such court has no, or will not or
cannot accept jurisdiction of the proceeding's subject matter in which
case the proceeding may be brought in the appropriate State Court of
Oregon. Neither party will argue that the U.S. District Court does not
have jurisdiction and both parties will assert that it does have
jurisdiction over any judicial proceedings. Compliance with
22 - PARTICIPATING LEASE
the provisions of this Section 31 will conclusively be deemed an
exhaustion of tribal judicial and administrative remedies and
proceedings. CEDCO does hereby unconditionally waive any right to
require any exhaustion of tribal administrative or judicial remedies in
any manner other than as set forth in this Section 31. In the event the
governing law of the United States of America looks to the law of a
particular state for its content, the law applicable in that instance
shall be the laws of State of Oregon.
(vii) Notwithstanding the Limited Waiver and any order, judgment
or decree resulting therefrom, there shall be no attachment, execution,
garnishment charge or levy whatsoever upon any assets or funds of CEDCO
except those specified in Section 26 hereof
32. HOLDING OVER.
If CEDCO remains in possession of the Premises after the expiration of
the term hereof, CEDCO may be deemed a tenant on a month-to-month basis and will
continue to pay rentals and other sums in the amounts herein provided and to
comply with all the terms of this Lease; provided that nothing herein nor the
acceptance of rent by GELLC will be deemed a consent to such holding over.
CEDCO agrees to remove all property removable under the terms of this
Lease within sixty (60) days after termination of this Lease or pay a daily
rental computed at the rate of double the daily rental charged during the year
immediately preceding termination of this Lease from the day following the
termination date of this Lease until said property is removed.
33. LANDLORD'S LIEN.
GELLC will have a landlord's lien upon all furnishings, fixtures,
equipment, decoration, supplies, accessories and other personal property which
CEDCO owns or in which it has an interest located on the Premises and related to
the operation of the Mill Casino to secure the payment of all rental and other
sums due under hereunder and the performance of all other obligations of CEDCO
under the Business Lease and the Master Lease.
34. REMOVAL OF LESSEE'S PROPERTY.
At the expiration of the Lease Term, and if CEDCO is not then in breach
hereof, CEDCO may remove from the Premises all personal property belonging to
CEDCO. CEDCO will repair any damage caused by such removal and will leave the
Premises broom clean and in good condition and repair inside and out.
35. FINANCIAL STATEMENTS.
23 - PARTICIPATING LEASE
Within thirty (30) days after the end of each fiscal quarter and within
ninety (90) days after the end of each fiscal year of CEDCO, CEDCO will deliver
to GELLC (i) complete unaudited financial statements of, regarding the
Commercial Activities and other operations conducted on the Premises, including
a profit and loss statement, statement of changes in financial condition and all
other related schedules for the fiscal period then ended; and (ii) balance
sheets and income statements for the Commercial Activities at the Premises
showing gross sales, gross win in respect of the Premises, cost of goods and
fuel sold, payroll, profits and losses for the fiscal period then ended. All
such financial statements will be prepared in accordance with generally accepted
accounting principles, consistently applied from period to period, and will be
certified to be accurate and complete by CEDCO (or the Treasurer or other
appropriate officer of CEDCO). Financial statements for each year end will be
audited by a firm acceptable to GELLC. In the event that CEDCO's property and
business at the Premises is ordinarily consolidated with other business for
financial statement purposes, such financial statements will be prepared on a
consolidating basis showing separately the sales, profits and losses, assets and
liabilities pertaining to the Premises with the basis for allocation of overhead
of other charges being clearly set forth. Copies of audited financial statements
will be delivered to GELLC within ten (10) days after receipt by CEDCO.
36. LESSOR'S LIABILITY.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Lease by GELLC, that there will be absolutely no
liability on the part of GELLC in excess of the financial obligations set forth
in this Lease and the Master Lease, and CEDCO will look solely to the amounts
provided in accordance therewith for the satisfaction of each and every remedy
of CEDCO in the event of any breach by GELLC of any of the terms, covenants and
conditions of this Lease to be performed by GELLC, such limitation and
exculpation of liability to be absolute and without any exception whatsoever.
37. CONSENT.
(a) CONSENT OF CEDCO. CEDCO will have no liability for damages resulting
from CEDCO's failure to give any consent, approval or instruction reserved to
CEDCO, GELLC's sole remedy in any such event being an action for injunctive
relief.
(b) CONSENT IN GENERAL. At all places in this Lease where approval or
consent or other action of a party is required, such consent or action shall
consist of either the written approval, consent or action of the party or by
silent assent as provided hereinafter. No approval, consent or action of a party
hereto shall be unreasonably withheld or delayed provided however, that the
foregoing will not apply where a specific provision of this Lease allows an
absolute right to deny approval or consent or withhold action. Unless the party
of which consent or approval is requested has expressly disapproved of or not
consented to the thing or act for which approval or consent is sought within ten
(10) days after receipt of the
24 - PARTICIPATING LEASE
request for approval or consent or action, they will be deemed to have granted
approval or consent or agreed to such action through silent assent, and the
party requesting the consent or approval will proceed accordingly.
38. WAIVER AND AMENDMENT.
This Lease amends, restates and supersedes the Old Participating Lease
in its entirety. No provision of this Lease will be deemed waived or amended
except by a written instrument unambiguously setting forth the matter waived or
amended and signed by the party against which enforcement of such waiver or
amendment is sought. Waiver of any matter will not be deemed a waiver of the
same or any other matter on any future occasion.
39. JOINT VENTURE.
Neither the provision set forth herein for the computation of Annual
Percentage Rental, nor any one or more agreements contained herein, is intended,
nor will the same be deemed or construed, to create a partnership between GELLC
and CEDCO, to make them joint venturers, nor to make GELLC in any way
responsible for the debts or losses of CEDCO.
40. CAPTIONS.
Captions are used throughout this Lease for convenience of reference
only and will not be considered in any manner in the construction or
interpretation hereof.
41. SEVERABILITY.
The provisions of this Lease will be deemed severable. If any part of
this Lease will be held unenforceable by any court of competent jurisdiction,
the remainder will remain in full force and effect, and such unenforceable
provisions will be reformed by such court so as to give maximum legal effect to
the intention of the parties as expressed therein.
42. CONSTRUCTION GENERALLY.
This Lease is a long-term commercial lease between sophisticated
entrepreneurs which has been entered into by both parties in reliance upon the
economic and legal bargains contained herein. This Lease will be interpreted and
construed in a fair and impartial manner without regard to such factors as the
party which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. CEDCO acknowledges that this Lease is a
"true lease" and is not a financing lease, equitable mortgage, mortgage, deed of
trust, security interest or other financing arrangement and CEDCO waives any
claim or defense based upon the characterization of this Lease as anything other
than a true lease.
25 - PARTICIPATING LEASE
43. OTHER DOCUMENTS.
Each of the parties agrees to sign such other and further documents as
may be appropriate to carry out the intentions expressed in this Lease. The
parties will execute and record a Memorandum of Lease evidencing this Lease.
44. ATTORNEY'S FEES.
In the event of any judicial or other adversarial proceeding between the
parties concerning this Lease, to the extent permitted by law, the prevailing
party will be entitled to recover all of its reasonable attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
45. ENTIRE AGREEMENT.
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided.
46. COUNTERPARTS.
This Lease may be executed in one or more counterparts, each of which
will be deemed an original.
47. COVENANT OF GOOD FAITH AND FAIR DEALING.
GELLC and CEDCO hereby specifically warrant and represent to each other
that neither will act in any manner that would cause this Lease to be altered,
amended, modified, canceled or terminated, except as otherwise set forth herein,
without the consent of the other. GELLC and CEDCO further warrant and represent
that they will take all actions necessary to ensure that this Lease will remain
in good standing at all times and will fully cooperate with each other in
achieving the goals of this Lease and the Master Lease.
48. CONFIDENTIALITY; NON-DISCLOSURE.
GELLC and CEDCO agree that confidential information will remain
confidential and will not be disclosed without the written consent of the other
parties to any third party other than, the Tribal Council, the National Indian
Gaming Commission, the Bureau of Indian Affairs, the South Dakota Gaming
Commission, the Securities and Exchange Commission, the State of Oregon (if
required by the Compact) and any other gaming authority which has jurisdiction
over GELLC or CEDCO, or except as otherwise expressly required by gaming or
federal securities law, or other legal authority having jurisdiction, direct or
indirect, over any party hereto.
26 - PARTICIPATING LEASE
49. LENDER PROVISIONS
Reference is made to that certain Consent, Estoppel, Attornment,
Subordination and Non-Disturbance Agreement of even date herewith (the "Consent
& Estoppel"), by and among Lessor, Lessee, Xxxxxx & Xxxxxxxxx Investments
Corporation (defined as "Lender" for purposes of this section) and the Tribe.
Lessor and Lessee expressly acknowledge the benefits to Lender contained in
Sections 5, 6, 7, 8, 10, 11 and 12 of the Consent & Estoppel and hereby
incorporate such terms into this Lease by this reference, to the extent
applicable.
50. CERTAIN DEBT.
(a) Reference is made to the Loan Agreement and to that certain
Depository Agreement, of even date herewith, between CEDCO and First Trust
National Association (the "Depository Agreement.") CEDCO hereby agrees with
GELLC that during the term of the Lease it shall not incur nor permit the
incurrence of any Debt except:
(i) such Debt as is evidenced by the Bullet Note or the
Monthly Installment Note;
(ii) such additional Debt as is permitted under Section 6.36 (ii)
(A), (B) or (C) of the Loan Agreement and Article V(f) or (g) of the Depository
Agreement;
(iii) such additional Debt as is permitted under Section 6.36
(ii) (D) of the Loan Agreement, provided that (I) such additional Debt ranks
subordinate to all Rental Payments due hereunder, (II) such Debt would pass the
test set forth in Article V (g) II (A) or (B) of the Depository Agreement if
such test were a condition to the incurrence of such Debt; and (III) CEDCO
executes and delivers such documents as may be necessary or appropriate to
evidence the priority of the Rental Payments to such Debt and to certify that
such Debt is permitted hereunder; and
(iv) such additional Debt as GELLC may otherwise consent to in
writing.
(b) All terms used in this Section 50 but not otherwise defined in this
Lease shall have the respective meanings set forth in the Loan Agreement.
(c) All references to the Loan Agreement or the Depository Agreement in
this Section 50 shall be to such agreements as in effect on the date hereof.
IN WITNESS WHEREOF, GELLC and CEDCO have entered into this Lease as of
the date first above written.
27 - PARTICIPATING LEASE
LESSEE:
COQUILLE ECONOMIC DEVELOPMENT
CORPORATION
By: /s/ XXX XXXXX
---------------------------------
Name: Xxx Xxxxx
-------------------------------
Title: President
------------------------------
STATE OF OREGON )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer, personally
appeared Xxx Xxxxx, President of CEDCO, known to me to be the person whose name
is subscribed to within this instrument and acknowledged that he executed the
same on behalf of CEDCO for the purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ XXXXXX XXXXXXXXX
--------------------------------
[ S E A L ] Notary Public
My commission expires: May 26, 1998
28 - PARTICIPATING LEASE
LESSOR:
GAMING ENTERTAINMENT L.L.C.
By its members, as follows:
Dreamport, Inc. (formerly GTECH Gaming
Subsidiary 1 Corporation)
By: /s/ XXXX X. XXXXXX, XX.
------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: President
----------------------------------
GTECH Gaming Subsidiary 2 Corporation
By: /s/ XXXX X. XXXXXX, XX.
------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: President
----------------------------------
Full House Subsidiary, Inc.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Full House Joint Venture Subsidiary, Inc.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
29 - PARTICIPATING LEASE
STATE OF Rhode Island )
) ss.
County of Kent )
On this 7th day of October, 1996, before me, the undersigned
officer, personally appeared Xxxx X. Xxxxxx, Xx., President of Dreamport, Inc.,
formerly known as GTECH Gaming Subsidiary 1 Corporations, known to me to be the
person whose name is subscribed to within this instrument and acknowledged that
he executed the same on behalf of GTECH Gaming Subsidiary 1 Corporations for the
purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ XXXXXXXX XXXXX
-------------------------------
[ S E A L ] Notary Public
My commission expires: June 26, 0000
XXXXX XX Xxxxx Xxxxxx )
) ss.
County of Kent )
On this 7th day of October, 1996, before me, the undersigned
officer, personally appeared Xxxx X. Xxxxxx, Xx., President of GTECH Gaming
Subsidiary 2 Corporation, known to me to be the person whose name is subscribed
to within this instrument and acknowledged that he executed the same on behalf
of GTECH Gaming Subsidiary 2 Corporation for the purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ XXXXXXXX XXXXX
--------------------------------
[ S E A L ] Notary Public
My commission expires: June 26, 1997
30 - PARTICIPATING LEASE
STATE OF OREGON )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxx, President of Full House Subsidiary,
Inc., known to me to be the person whose name is subscribed to within this
instrument and acknowledged that he executed the same on behalf of Full House
Subsidiary, Inc., for the purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ XXXXXX XXXXXXXXX
-----------------------------
[ S E A L ] Notary Public
My commission expires: May 26, 0000
XXXXX XX XXXXXX )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxx, President of Full House Joint Venture
Subsidiary, Inc., known to me to be the person whose name is subscribed to
within this instrument and acknowledged that he executed the same on behalf of
Full House Joint Venture Subsidiary, Inc., for the purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ XXXXXX XXXXXXXXX
-------------------------------
[ S E A L ] Notary Public
My commission expires: May 26, 1998
31 - PARTICIPATING LEASE
SECTIONS 81 AND 84 ACCOMMODATION APPROVAL,
CONSENT, AND DISCLAIMER
FOR
PARTICIPATING LEASE
The COQUILLE INDIAN TRIBE, a federally recognized Indian tribe
(hereafter "Tribe") has submitted a PARTICIPATING LEASE (hereafter "Document")
to the Department of the Interior for its review and has requested its approval
pursuant to 25 U.S.C. /section//section/ 81 and 84. The Depart- ment has
reviewed the Document and determined that it does not constitute an agreement
involving services to or an encumbrance of the trust land or other trust assets
of the Tribe and, therefore, that the Document is not subject to the provisions
of 25 U.S.C. /section//section/ 81 and 84. As a result, these statutes do not
limit or impair the capacity of the Tribe to make or enter into the Document
without obtaining the approval of the Secretary of the Interior and the
Commissioner of Indian Affairs.
Nevertheless, the Tribe has requested that the Document be approved to
avoid casting any doubt on their legitimate authority to validly make and enter
into the Document. The Secretary of the Interior and the Commissioner of Indian
Affairs do not want their determination that the Document does not require their
approval to subject the Tribe to an assertion that the Document is void under
the provisions of 25 U.S.C. /section//section/ 81 and 84 due to lack of approval
or consent. To avoid casting any doubt due to the lack of such approvals and
consents, as an accommodation to the request of the Tribe, the Secretary of the
Interior and the Commissioner of Indian Affairs hereby approve and consent to
the Document.
The approval by the Secretary of the Interior and the Commissioner of
Indian Affairs as provided above does not and should not be construed or
interpreted as indicating that said Document requires their approval or consent
to be valid or that the United States assumes or guarantees any of the
obligations of the Tribe under said Document.
SECRETARY OF THE INTERIOR
By:
-------------------------------
Title: Area Director of the Portland Area Office of the Bureau Indian Affairs
for the Secretary of the Interior and the Commissioners of Indian
Affairs acting under delegated authority
COMMISSIONER OF INDIAN AFFAIRS
By:
-------------------------------
Title: Area Director of the Portland Area Office of the Bureau Indian Affairs
for the Secretary of the Interior and the Commissioners of Indian
Affairs acting under delegated authority
32 - PARTICIPATING LEASE
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
33 - PARTICIPATING LEASE
EXHIBIT B
CASINO IMPROVEMENTS
34 - PARTICIPATING LEASE
