EXHIBIT 10.78
MASTER LEASE AGREEMENT
----------------------
THIS MASTER LEASE AGREEMENT ("Lease") is made and entered into this 16th
day of September, 1996, by and between VIDEOTRONICS, INC., a Nevada corporation
("Lessor"), whose address is 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxx 00000
and SANTA FE HOTEL, INC., a Nevada corporation ("Lessee"), whose address is 0000
Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000.
Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor in
accordance with the terms and conditions contained herein, certain equipment
more fully described in the Lease Schedule or Schedules, referred to herein as a
"Lease Schedule," as may from time to time be executed by Lessee. All equipment
described in such Lease Schedules shall be collectively referred to as the
"Equipment" and individually referred to as a "Unit" and is to be installed in
and to be used in connection with the business location described in a
particular Lease Schedule ("Premises").
NOW THEREFORE, Lessor and Lessee agree as follows:
1. LEASE. This Lease establishes the general terms and conditions by which
-----
Lessor shall lease the Equipment to Lessee. Each Lease Schedule shall be in the
form provided by Lessor and shall incorporate by reference the terms of this
Lease.
2. TERM: RENT AND PAYMENT.
-----------------------
2.1 TERM. The term of this Lease shall commence on the date set forth in
each Lease Schedule (the "Commencement Date") and continue as specified in such
Lease Schedule ("Term").
2.2 RENT AND PAYMENT. Lessee's obligation to pay rent for the Equipment
shall commence on the Commencement Date and continue for the Term. The Basic
Rent set forth on the Lease Schedule shall be payable on the Commencement Date
and on the same day of each month thereafter ("Rent Date"). Any amounts payable
by Lessee, other than Basic Rent, shall be deemed Additional Charges and shall
be payable on the Rent Date next following the date upon which they accrue or
the last day of the Term, whichever is earlier. Lessee shall make all payments
at the address of Lessor set forth above or at such other address as Lessor may
designate in writing. As used herein, the term "Rent" shall mean all Basic Rent
and Additional Charges.
2.3 LATE CHARGE. If any Rent is not received by Lessor or its assignees
within ten (10) days of when due, a late charge on such Rent shall be due and
payable with such Rent in an amount equal to four percent (4%) of the amount
past due or any part thereof, as reimbursement for administrative costs and not
as a penalty.
2.4 LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to
comply with any of its covenants or obligations herein, Lessor may, at its
option, perform such covenants or obligations on Lessee's behalf without thereby
waiving such conditions or obligations or the failure to comply therewith and
all sums advanced by Lessor in connection therewith shall be repayable by Lessee
as Additional Charges. No such performance shall be deemed to relieve Lessee of
its obligations herein.
3. CERTIFICATE OF ACCEPTANCE. Lessee shall deliver to Lessor a certificate of
-------------------------
delivery, installation and acceptance ("Certificate of Acceptance") in the form
provided by the Lessor.
4. NET LEASE. This Lease including each Lease Schedule is a net lease and
----------
Lessee's obligation to pay all Rent due and the rights of Lessor or its
assignees in, and to, such Rent shall be absolute and unconditional under all
circumstances, notwithstanding: (i) any setoff, abatement, reduction,
counterclaim, recoupment, defense or other right which Lessee may have against
Lessor, its assignees, the manufacturer or seller of any Unit, or any other
person for any reason whatsoever, including, without limitation, any breach by
Lessor of this Lease; (ii) any defect in title, condition, operation, fitness
for use, or any damage to or destruction of, the Equipment; (iii) any
interruption or cessation of use or possession of the Equipment for any reason
whatsoever; or (iv) any insolvency, bankruptcy, reorganization or similar
proceedings instituted by or against Lessee.
5. LOCATION: USE: MAINTENANCE; IDENTIFICATION AND INSPECTION.
---------------------------------------------------------
5.1 LOCATION, USE, MAINTENANCE AND REPAIRS. (a) Lessee shall keep and use
the Equipment on the Premises and shall not relocate or remove any Unit unless
Lessor consents, in writing, prior to its relocation or removal. (b) Lessee
shall at all times and, at its sole cost and expense, properly use and maintain
the Equipment in good operating condition, other than the normal wear and tear,
and make all necessary repairs, alterations and replacements thereto
(collectively, "Repairs"), all of which shall immediately become the property of
Lessor and subject to this Lease. Lessee shall comply with manufacturer
instructions relating to the Equipment, and any applicable laws and
governmental regulations. (c) Lessee shall pay all costs and expenses associated
with removal and return of the Equipment.
5.2 IDENTIFICATION AND INSPECTION. Upon request by Lessor, Lessee shall
xxxx each Unit conspicuously with appropriate labels or tags furnished by
Lessor and maintain such markings through the Term to clearly disclose that said
Unit is being leased from Lessor. Subject to Lessee's reasonable security
requirements, Lessee shall permit Lessor's representatives to enter the Premises
where any Unit is located to inspect such Unit.
6. LOCATION: LIENS AND ENCUMBRANCES.
--------------------------------
6.1 PERSONAL PROPERTY. Each Unit is personal property and Lessee shall not
affix any Unit to realty so as to change its nature to a fixture or real
property and agrees that each Unit shall remain personal property during the
Term. LESSOR EXPRESSLY RETAINS OWNERSHIP AND TITLE TO THE EQUIPMENT. LESSEE
HEREBY AGREES THAT IT SHALL BE RESPONSIBLE FOR ALL OF LESSORS OBLIGATIONS AS
REQUIRED BY THE STATE GAMING LAWS AND REGULATIONS REGARDING MAINTENANCE, USE,
POSSESSION AND OPERATION OF THE EQUIPMENT. Lessee hereby authorizes, empowers,
and grants a limited power of attorney to Lessor to record and/or execute and
file, on Lessee's behalf, any certificates, memorandums, statements, refiling,
and continuations thereof as Lessor deems reasonably necessary or advisable to
preserve and protect its interest hereunder. The parties intend to create a
lease agreement and the relationship of lessor and lessee between themselves.
Nothing in this Lease shall be construed or interpreted to create or imply the
existence of a finance lease or installment lease contract. Lessor makes no
representation regarding the treatment of this Lease, the Equipment or the
payment of obligations under this Lease for financial statement reporting or tax
purposes.
6.2 LIENS AND ENCUMBRANCES. Unless otherwise provided herein, Lessee shall
not directly or indirectly create, incur or suffer a mortgage, claim, lien,
charge, encumbrance or the legal process of a creditor of Lessee of any kind
upon or against this Lease or any Unit. Lessee shall at all times protect and
defend, at its own cost and expense, the title of Lessor from and against such
mortgages, claims, liens, charges, encumbrances and legal processes of creditors
of Lessee and shall keep all the Equipment free and clear from all such claims,
liens and legal processes. If any such lien or encumbrance is incurred, Lessee
shall immediately notify Lessor and shall take all actions required by Lessor to
remove the same.
7. RETURN OF EQUIPMENT.
-------------------
7.1 DUTY OF RETURN. At the expiration of the Term or upon termination of
the Lease, Lessee at its expense shall return each Unit to Lessor or its
designee at the destination specified by Lessor, in accordance with appropriate
gaming laws and regulations. Each Unit shall conform to all of the
manufacturer's specifications and gaming laws and regulations with respect to
normal function, capability, design and condition (less normal wear and tear).
7.2 FAILURE TO RETURN. If Lessee fails to return the Equipment or any
portion thereof, as provided above, within fourteen (14) days following
expiration of the term or termination of the Lease, then Lessee shall pay to
Lessor an additional month's Rent for each month, or any portion thereof, that
Lessee fails to comply with the terms of this return provision, until all of the
Equipment is returned, as provided herein.
8. RISK OF LOSS: INSURANCE.
------------------------
8.1 RISK OF LOSS. Lessee shall bear the risk of all loss or damage to any
Unit or caused by any Unit during the period from the time the Unit is shipped
by its vendor until the time it is returned as provided herein.
8.2 UNIT REPLACEMENT. If any Unit is lost, stolen, destroyed, seized by
governmental action or, in Lessee's opinion or Lessor's opinion, damaged ("Event
of Loss"), this Lease shall remain in full force and effect without abatement of
Rent and Lessee shall promptly replace such Unit at its sole expense with a Unit
of equivalent value and utility, and similar kind and in substantially the same
condition as the replaced Unit immediately prior to the Event of Loss. Title to
such replacement unit immediately shall vest and remain in Lessor, and such unit
shall be deemed a Unit under this Lease. Upon such vesting of title and
provided Lessee is not in default under this Lease, Lessor shall cause to be
paid to Lessee or the vendor of the replacement unit any insurance proceeds
actually received by Lessor for the replacement Unit. Lessee shall promptly
notify Lessor of any Event of Loss and shall provide Lessor with and shall enter
into, execute and deliver such documentation as Lessor shall request with
respect to the replacement of any such Unit.
8.3 INSURANCE. Lessee shall obtain and maintain in full force and effect
all risk, full replacement cost property damage insurance on the Premises: (i)
comprehensive personal liability, (ii) all risk property damage on the Equipment
in amounts reasonably acceptable to Lessor, and (iii) workers compensation
insurance. Such insurance shall: (i) name Lessor and its Assignees, if any, as
additional insureds and first loss payees as their interests may
2
appear; and (ii) provide that the policy may not be canceled or materially
altered without thirty (30) days prior written notice to Lessor and its
Assignees. All such insurance shall be placed with companies having a rating of
at least A, Class XII or better by Best's rating service. Lessee shall furnish
to Lessor, upon request and throughout the Term, insurance certificates of a
kind satisfactory to Lessor and its Assignees showing the existence of the
insurance required hereunder and premium paid.
9. LESSOR'S PURCHASE AND PERFORMANCE. Upon receipt of a Lease Schedule executed
---------------------------------
and delivered by Lessee, Lessee shall bear all responsibilities and perform all
obligations of Lessor thereunder other than payment of the purchase price.
10. TAXES.
-----
10.1 TAXES. Lessee agrees to report, file, pay promptly when due to the
appropriate taxing authority and indemnify, defend, and hold Lessor harmless
from and against any and all taxes (including gross receipts), assessments,
license fees and other federal, state or local governmental charges of any kind
or nature, together with any penalties, interest or fines related thereto
(collectively, "Taxes") that pertain to the Equipment, its purchase, or this
Lease, except such Taxes based solely upon the net income of Lessor.
10.2 LESSOR'S FILING OF TAXES. Notwithstanding the foregoing, Lessor at
its election may report and file sales and/or use taxes which are filed and paid
periodically through the Term, and the amounts so due may be invoiced to Lessee
and payable as specified therein.
11. INDEMNIFICATION. Except for the negligence of Lessor, its employees or
---------------
agents and assigns, Lessee hereby assumes liability for and agrees to indemnify,
defend, protect, save and hold harmless the Lessor, its agents, employees,
directors and assignees from and against any and all losses, damages, injuries,
claims, penalties, demands and all expenses, legal or otherwise (including
reasonable attorneys' fees) of whatever kind and nature arising from the
purchase, ownership, use, condition, operation or maintenance of the Equipment,
until the Equipment is returned to Lessor. Any claim, defense, setoff, or other
right of Lessee against any such indemnified party shall not in any way affect,
limit, or diminish Lessee's indemnity obligations hereunder. Lessee shall
notify Lessor immediately as to any claim, suit, action, damage, or injury
related to the Equipment of which Lessee has actual or other notice and shall,
at its own cost and expense, defend any and all suits which may be brought
against Lessor, shall satisfy, pay and discharge any and all judgments and fines
that may be recovered against Lessor in any such action or actions, provided,
however, that Lessor shall give Lessee written notice of any such claim or
demand. Lessee agrees that its obligations under this Section 11 shall survive
the expiration or termination of this Lease.
12. REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants to Lessor
------------------------------
that: i) the making of this Lease and any Lease Schedule executed by Lessee is
duly authorized on the part of Lessee and that upon due execution thereof by
Lessee and Lessor they shall constitute valid obligations binding upon, and
enforceable against, Lessee in accordance with their terms; ii) neither the
making of this Lease or such Lease Schedule, nor the due performance by Lessee,
including the commitment and payment of the Rent, shall result in any breach of,
or constitute a default under, or violation of, Lessee's articles of
incorporation, by-laws, or any agreement to which Lessee is a party or by which
Lessee is bound; iii) no approval or consent not already obtained or withholding
of objection is required from any governmental authority with respect to the
entering into, or performance of this Lease or any Lease Schedule by Lessee; iv)
Lessee has obtained all licenses and permits required applicable laws or
regulations (the "Gaming Laws") for the operation of its business.
13. DISCLAIMERS; MANUFACTURERS WARRANTIES. LESSEE ACKNOWLEDGES THAT EACH UNIT
-------------------------------------
IS OF THE DESIGN, CAPACITY AND MANUFACTURE SPECIFIED FOR AND BY THE LESSEE AND
THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES.
LESSEE AGREES, REGARDLESS OF CAUSE, NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST
LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. LESSOR
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT WHETHER
EXPRESSED OR IMPLIED. Without limiting the generality of the foregoing it is
intended by the parties to exclude any and all implied warranties of
merchantability and fitness for particular purposes. NO SALESMAN OR AGENT OF
LESSOR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OF THIS LEASE OR MAKE ANY
REPRESENTATION REGARDING THE EQUIPMENT.
14. ASSIGNMENT OF LEASE.
-------------------
14.1 ASSIGNMENT BY LESSOR. Lessee acknowledges and agrees that Lessor may
assign, mortgage, or otherwise transfer its interest thereunder and/or in the
Equipment to others ("Assignees") without consent of Lessee,
3
provided however that Lessee and the Nevada Gaming Control Board ("Control
Board") shall be notified of any assignment. Accordingly, Lessee and Lessor
agree that upon such assignment, Lessee (i) shall acknowledge such assignment in
writing by executing a Notice, Consent and Acknowledgment of Assignment
furnished by Lessor; (ii) shall promptly pay all Rent when due to the designated
Assignees, notwithstanding any defense, setoff, abatement, recoupment, reduction
or counterclaim whatsoever that Lessee may have against Lessor; (iii) shall not
permit the Lease or Lease Schedule so assigned to be amended or the terms
thereof waived without the prior written consent of the Assignees; (iv) shall
not require the Assignees to perform any obligations of Lessor under such Lease
Schedule; (v) shall not terminate or attempt to terminate the Lease or Lease
Schedule on account of any default by Lessor; and (vi) acknowledges that any
Assignee may reassign its rights and interest with the same force and effect as
the assignment described herein.
14.2 ASSIGNMENT OR SUBLEASE BY LESSEE. Lessee shall not assign this Lease
or any Lease Schedule or assign its rights in or sublet the Equipment, or any
interest therein without Lessor's and its Assignee's prior written consent,
which consent shall not be unreasonably withheld.
15. FINANCIAL INFORMATION; FURTHER ASSURANCES.
-----------------------------------------
15.1 FINANCIAL INFORMATION. Throughout the Term, Lessee shall deliver to
Lessor copies of all current financial information of Santa Fe Gaming
Corporation (Lessee's parent corporation) which will reflect the financial
condition and operations of Lessee as well as such other information regarding
Lessee reasonably requested by Lessor or its Assignees.
15.2 FURTHER ASSURANCES. Lessee shall execute and deliver to Lessor, such
other documents, and take such further action as Lessor may request, in order to
effectively carry out the intent and purposes of this Lease and the Lease
Schedules. All documentation shall be in a form acceptable to Lessor and its
Assignees. Lessee shall provide all necessary notices to the Control Board.
15.3 LEASE AGREEMENT. If any court of competent jurisdiction should
determine that this Lease constitutes a security arrangement as opposed to a
true lease, the parties then agree that this Lease shall constitute a security
agreement within the meaning of the Uniform Commercial Code and that the Lessor
shall be considered a secured party under the provisions thereof and shall be
entitled to all the rights and remedies of a secured party and Lessee, as
debtor, grants to Lessor, as secured party, a security interest in the
Equipment; provided nothing herein shall be construed nor shall the inclusion of
this paragraph be interpreted as derogating from the stated intent and
contractual understanding of the parties that this is a true lease.
16. DEFAULT BY LESSEE; REMEDIES.
---------------------------
16.1 DEFAULT BY LESSEE. Lessee shall be in default upon the occurrence of
any one of the following events ("Event of Default"): (a) failure to pay Rent
when due; (b) failure to perform any other term, condition or covenant of this
Lease or any Lease Schedule; (c) Lessee ceases or is enjoined, restrained or in
any way prevented from conducting business as a going concern; (d) if any
proceeding is filed by or against the Lessee for an assignment for the benefit
of creditors, a voluntary or involuntary petition in bankruptcy, or if Lessee is
adjudicated a bankrupt or an insolvent; (e) Lessee attempts to remove, sell,
transfer, encumber, part with possession or sublet the Equipment or any Unit
thereof; (f) any Unit is attached, levied upon, encumbered, pledged, or seized
under any judicial process; (g) any warranty or representation made or furnished
to the Lessor by or on behalf of the Lessee is false in any material respect
when made or furnished; (h) failure to maintain in full force and effect the
licenses and permits required under the Gaming Laws for the operation of
Lessee's business; (i) failure to comply with all gaming regulations; or (j)
any change in control of the Lessee or its business.
16.2 LESSOR REMEDIES. Lessee acknowledges that the enforcement of this
Lease requires approval of the Control Board and/or the Nevada Gaming Commission
("the Commission") and that copies of all Default Notices, legal proceedings,
etc. will be forwarded to the appropriate agency as required by state law,
regulation or upon request of the Control Board or the Commission. Lessee
further acknowledges that upon any Event of Default, and at any time thereafter,
Lessor, may in addition to any and all rights and remedies it may have at law or
in equity, without notice to or demand upon Lessee at its sole option: (i)
declare the aggregate Rent then accrued and unpaid together with the balance of
any Rent to be immediately due and payable; (ii) proceed by appropriate court
action or other proceeding, either at law or in equity to enforce performance by
Lessee of any and all covenants of this Lease; (iii) on written notice to
Lessee, terminate any of Lessee's rights under this Lease or Schedule in which
event Lessee shall immediately surrender and return the Equipment to Lessor
pursuant to the provisions hereof; and (iv) subject to appropriate Gaming Laws,
rules, laws and regulations, and required approvals, take possession, sell
and/or
4
re-lease any Unit as Lessor may desire, in its sole discretion.
Lessor's rights and remedies herein are cumulative and in addition to any rights
or remedies available at law or in equity including the Uniform Commercial Code,
and may be exercised concurrently or separately. Lessee shall pay all costs,
expenses, losses, damages and legal costs (including reasonable attorneys' fees)
incurred by Lessor and its Assignees as a result of enforcing any terms or
conditions of the Lease or any Schedules. A termination hereunder shall occur
only upon written notice by Lessor to Lessee and no repossession or other act by
Lessor after default shall relieve Lessee from any of its obligations to Lessor
hereunder unless Lessor so notifies Lessee in writing.
17. MISCELLANEOUS.
-------------
17.1 NOTICES. Except as otherwise required by law, all notices required
herein shall be in writing and sent by prepaid certified mail or by courier,
addressed to the party at the address of the party specified herein or such
other address designated in writing. Notice shall be effective upon the earlier
of its receipt or four (4) days after it is sent.
17.2 SURVIVAL OF INDEMNITIES. All indemnities of Lessee shall survive and
continue in full force and effect for events occurring prior to the return of
the Equipment to the Lessor, notwithstanding the expiration or termination of
the Term.
17.3 COUNTERPARTS. Each Lease and any Lease Schedule may be executed in
counterparts.
17.4 MULTIPLE LESSEES. If more than one Lessee is named in this Lease or a
Lease Schedule the liability of each shall be joint and several.
17.5 TITLES. Section titles are not intended to have legal effect or limit
or otherwise affect the interpretation of this Lease or any Lease Schedule.
17.6 WAIVER. No delay or omission in the exercise of any right or remedy
herein provided or otherwise available to Lessor, or prior course of conduct,
shall impair or diminish Lessor's rights to exercise the same or any other right
of Lessor; nor shall any obligation of Lessee hereunder be deemed waived. The
acceptance of rent by Lessor after it is due shall not be deemed to be a waiver
of any breach by Lessee of its obligations under this Lease or any Lease
Schedule.
17.7 SUCCESSORS. This Lease and each Lease Schedule shall inure to the
benefit of and be binding upon Lessor and Lessee and their respective successors
in interest.
17.8 NOT AN OFFER. Neither this Lease nor any Lease Schedule shall be
deemed to constitute an offer or be binding upon Lessor until executed by
Lessor's authorized officer.
17.9 SEVERABILITY. If any provisions of this Lease or any Lease Schedule
shall be held to be invalid or unenforceable, the validity and enforceability of
the remaining provision thereof shall not be affected or impaired in any way.
17.10 MODIFICATION. Lessor and Lessee agree that any modifications to this
Lease or any Lease Schedule shall be in writing and shall be signed by both
parties and their last known assignees, if any.
17.11 LEASE IRREVOCABLE. This Lease is irrevocable for the full Term
hereof and the Rent shall not xxxxx by reason of termination of Lessee's right
of possession and/or the taking of possession by the Lessor or for any other
reason.
17.12 GOVERNING LAW. This Lease and each Lease Schedule are entered into
under and shall be construed in accordance with, and governed by the laws of the
State of Nevada.
17.13 RIDERS. In the event that any riders are attached hereto and made a
part hereof and if there is a conflict between the terms and provisions of any
rider, including any Lease Schedule and the terms and provisions herein, the
terms and provisions of the rider or Lease Schedule shall control to the extent
of such conflict.
17.14 ENTIRE AGREEMENT. LESSEE REPRESENTS THAT IT HAS READ, RECEIVED,
RETAINED A COPY OF AND UNDERSTANDS THIS LEASE, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS. LESSOR AND LESSEE AGREE THAT THIS LEASE, ALL RIDERS,
LEASE SCHEDULES, OR EXHIBITS HERETO, AND THE LEASE SCHEDULES SHALL CONSTITUTE
THE ENTIRE AGREEMENT AND SUPERSEDE ALL PROPOSALS, ORAL OR WRITTEN, ALL PRIOR
NEGOTIATIONS AND ALL OTHER COMMUNICATIONS BETWEEN LESSOR AND LESSEE WITH RESPECT
TO ANY UNIT.
5
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed on the date set forth by their authorized representatives.
LESSEE: LESSOR:
SANTA FE HOTEL, INC., VIDEOTRONICS, INC.,
a Nevada corporation a Nevada corporation
By: /s/ Xxxxxx X. Land By: /s/ Xxxx Xxxxxx
_______________________________ _____________________________
Its: Senior Vice President and CFO Its: President
______________________________ ____________________________
6
