FIRST AMENDMENT TO LEASE AGREEMENT
BETWEEN PARK CATTLE CO., LANDLORD AND
HARVEYS CASINO RESORTS formerly known as
HARVEYS WAGON WHEEL, INC., TENANT
(El Dorado County, California property)
This First Amendment to Lease Agreement dated as of the 1st day of June,
1997 by and between PARK CATTLE CO. (the Landlord'), a Nevada corporation and
HARVEYS CASINO RESORTS, formerly known as XXXXXX'X WAGON WHEEL, INC. (the
Tenant'), a Nevada corporation,
WITNESSETH:
1. On February 28, 1985, the Landlord and Tenant entered into a Lease
Agreement (the Lease').
2. Tenant desires to extend the term of the lease.
3. Landlord is willing to extend the term of the Lease subject to certain
terms and
conditions.
4. The Landlord and Tenant desire to amend the Lease as is hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
and conditions herein contained, Landlord and Tenant hereby agree as follows:
I. Article I of the Lease is hereby amended to read as follows:
ARTICLE I
Premises and Term of Lease
Section 1.1. The Landlord hereby demises and leases to the
Tenant,and the Tenant hereby hires and leases from the Landlord, the property
(the Premises') in El Dorado County, California, consisting of the parcel of
land described on Exhibit A.
Section 1.2. At any time during the entire term of this Lease,
Landlord may require this Lease to be amended to substitute a different parcel
of land owned by Landlord for and as the Premises. Tenant must accept the
substitution if the parcel meets the open space requirements for Tenant's Master
Plan Project, the approvals, if any, required from governmental agencies having
jurisdiction have been obtained and the consent, if any, required from lenders
holding a security interest in Tenant's leasehold interest have been obtained.
Landlord and Tenant shall cooperate in obtaining all such approvals and
consents.
Section 1.3. The Term of this Lease shall commence at 12:01 A.M. on
the day (the Commencement Date') which is the 28th day of February, 1985, and
shall end at 11:59 P.M. on March 31, 2045.
Section 1.4. During the entire term of this Lease the Tenant will
have the right to occupy and use the Premises, enjoy all the rights and
privileges relating to the Premises, and receive, subject to its obligations to
pay rent and make other payments as required by this Lease, all the rents and
profits from the Premises.
II. Article XI of the Lease is hereby amended to read as follows:
ARTICLE XI
Assignment and Subletting
Section 11.1. Tenant shall not assign this Lease, or any interest
therein, and shall not sublet the Premises or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person (the agents and
servants of Tenant excepted) to occupy or use the Premises, or any portion
thereof, without the written consent of Landlord first had and obtained. A
consent to one assignment, subletting, occupation or use by any other person,
shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person. Any such assignment or subletting without
such consent shall be void, and shall be an event of default. This Lease shall
not, nor shall any interest therein, be assignable, as to the interest of
Tenant, by operation of law, without the written consent of Landlord.
11.2 The consent of the Landlord required under Section 11.1 above,
may not be unreasonably withheld. Landlord may withhold or condition the
consent required under Section 11.1 on Tenant remaining obligated to pay the
rent and to perform all other obligations to be performed by the Tenant
hereunder for any of the following reasons, which list is not exclusive, and
such withholding or conditioning of consent shall be deemed to be reasonable:
(a) Lack of experience operating a hotel/gaming facility
comparable to Harveys Lake Tahoe Resort by the proposed sublessee or assignee;
or
(b) Financial inadequacy or general business history or
experience of the proposed sublessee or assignee.
Section 11.3. Notwithstanding the foregoing, the following conditions
shall apply to any proposed assignment or sublease hereunder:
(a) Each and every covenant, condition, or obligation imposed
upon Tenant by this Lease and each and every right, remedy, or benefit afforded
Landlord by this Lease shall not be impaired or diminished as a result of such
assignment or sublease;
(b) The sale, lease, transfer, conveyance or other disposition,
in one or a series of related transactions of Harveys Lake Tahoe Resort and the
liquidation or dissolution of Harveys Casino Resorts each shall be deemed an
assignment within this Article XI.
(c) The acceptance of rent by Landlord from any person shall not
be deemed to be a waiver by Landlord or any provision of this Lease or to be a
consent to any assignment or subletting.
(d) Tenant shall have the right without the consent of Landlord
but upon prior written notice to Landlord, to assign this Lease to a company
incorporated or to be incorporated by Tenant provided that Tenant owns or
beneficially controls all the issued and outstanding shares of the capital stock
of the company (the Subsidiary Company'). Such assignment shall not, however,
relieve Tenant from its obligation for the payment of rent and for the full and
faithful observance and performance of the covenants, terms and conditions
contained herein. If at any time after such an assignment there is any Change
of Control of the Subsidiary Company, such Change of Control shall constitute an
assignment subject to the provisions of this Article XI. A Change of Control
shall occur whenever Tenant does not own or beneficially control all of the
issued and outstanding shares of the Subsidiary Company.
(e) No permitted assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the Premises assigned or sublet
unless, within ten (10) days after the execution thereof, Tenant shall deliver
to Landlord a duly executed duplicate original of such assignment or sublease in
form satisfactory to Landlord which provides (1) the assignee or sublessee
assumes Tenant's obligation for the payment of rent and for the full and
faithful observance and performance of the covenants, terms and conditions
contained herein, and (2) that such assignee or sublessee will, at Landlord's
election, attorn directly to Landlord in the event Tenant's lease is terminated
for any reason, and (3) such assignment or sublease contains such other
assurance as Landlord reasonably deems necessary.
III. Except as specifically modified herein, the Lease dated February 28,
1985, shall remain in full force and effect and the parties shall be bound by
all the terms and conditions thereof.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this First
Amendment to Lease Agreement dated this 1st day of June, 1997.
LANDLORD: TENANT:
PARK CATTLE CO. HARVEYS CASINO RESORTS,
formerly known as HARVEYS WAGON
WHEEL, INC.
By Xxxxx Xxxx By Xxxxxxx X. Xxxxxxx
Its President Its Chairman, President & CEO
