EXHIBIT 10.49
COQUILLE ECONOMIC DEVELOPMENT CORPORATION
GAMING ENTERTAINMENT L.L.C.
FIRST AMENDED AND RESTATED MASTER LEASE
THIS FIRST AMENDED AND RESTATED MASTER LEASE dated as of October 8,
1996, (this "Lease"), restates and amends that certain Master Lease made as of
February 9, 1995, as amended by and between GAMING ENTERTAINMENT L.L.C., a
Delaware limited liability company ("GELLC" or "Lessee;" successor in interest
to FULL HOUSE RESORTS, INC., a Delaware corporation ("FHR")), whose address is
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and COQUILLE ECONOMIC
DEVELOPMENT CORPORATION, a corporation chartered by the Coquille Indian Tribe
("Lessor" or CEDCO"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
CEDCO and GELLC hereby agree as follows:
1. DEFINITIONS. The following terms will have the following meanings for
all purposes of this Lease:
"ADVANCE RENTAL" means $500,000 which has been prepaid by FHR pursuant
to Section 11 hereof.
"BASE ANNUAL RENTAL" means $1.00.
"BASE MONTHLY RENTAL" means an amount equal to 1/12 of the Base Annual
Rental.
"BUSINESS LEASE" means that certain lease agreement between CEDCO and
the Coquille Indian Tribe.
"CASINO IMPROVEMENTS" means the improvements to the gaming facility to
be constructed upon the premises, as described on Exhibit B.
"CEDCO" means Coquille Economic Development Corporation, a corporation
chartered by the Coquille Indian Tribe.
"COMMENCEMENT DATE" means May 19, 1995, which was the date the Premises
were opened to the public and gaming activities commenced.
"FHR" means Full House Resorts, Inc., a Delaware corporation, or its
successors or assigns.
"COMMERCIAL ACTIVITIES" means any commercial activities conducted on
the Site I Premises, including, without limitation, gaming activities,
collateral economic activities, other
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commercial activities and the rental or leasing of the Premises, any
improvements thereon or any portion thereof.
"GELLC" means Gaming Entertainment L.L.C., a Delaware limited liability
company.
"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 (if any) 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 replacements of any of the foregoing.
"LEASE TERM" means the period described in Section 3 hereof.
"LEASE YEAR" means (i) for the first year, the approximately twelve
(12) month period commencing on the Commencement Date of this Lease (as defined
in Section 3 hereof) 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.
"LEASEHOLD MORTGAGEE" means the beneficiary of an instrument
encumbering this Lease.
"LESSEE" means GELLC, as successor in interest to FHR, or its
successors or assigns.
"LESSOR" means Coquille Economic Development Corporation, a corporation
chartered by the Coquille Indian Tribe.
"PLANS AND SPECIFICATIONS" means the plans and specifications
respecting the Casino Improvements, which are prepared pursuant to Section 12
hereof.
"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
on the Mill Casino site.
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"REGULATED SUBSTANCE" means any substance described or defined in any
of the Laws or any applicable federal, state, county or local laws applicable to
or regulating underground storage tanks.
"SECRETARY" means the Secretary of the Interior or his or her
authorized representative, delegate or successor.
"SUBLEASE" means any further assignment or sublease by GELLC of its
interest in the Premises whether in whole or in part.
"SUBLEASEHOLD MORTGAGEE" means the beneficiary of an instrument
encumbering a Sublease.
"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 (10%) ten percent or more beneath the surface of the ground.
2. DEMISE OF PREMISES.
In consideration of the rentals and other sums to be paid by GELLC and
of the other terms, covenants and conditions on GELLC's part to be kept and
performed, CEDCO hereby leases to GELLC, and GELLC hereby takes and hires, the
Premises.
3. LEASE TERM.
(a) This Lease will be effective and enforceable from the date hereof
"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 midnight of the twenty-fifth (25th) full Lease Year following the
Commencement Date.
(b) Notwithstanding any other provision of this Lease to the contrary,
GELLC will have the discretionary right to terminate this Lease without
liability at any time subsequent to a nonrenewal of the Sublease between GELLC
and CEDCO relating to the Premises.
4. RENTAL AND OTHER PAYMENTS.
(a) Commencing as of the Commencement Date, GELLC will pay the Base
Monthly Rental each month on or before the first day of the month for which it
is due. If the Commencement Date commences other than on the first day of a
calendar month, the Base Monthly Rental for the first month will be prorated
from the date on which the Commencement Date commences to and including the last
day of said month.
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(b) [Intentionally Omitted.]
(c) FHR has paid the Advance Rental in accordance with Section 11
hereof.
5. RENTAL TO BE NET TO LESSOR.
The Base Annual Rental hereunder will be net to CEDCO, so that this
Lease will yield to CEDCO the rentals specified during the Lease Term, and all
costs, expenses and obligations related to operation of the Premises of every
kind and nature whatsoever relating to the Premises will be paid by GELLC (other
than those set forth in Section 6(d)).
6. TAXES AND ASSESSMENTS.
CEDCO shall pay, as the same become due and prior to delinquency, all
taxes and assessments in respect of the Premises, including the following:
(a) All valid taxes and assessments upon the Premises or part thereof
(if any) or any personal property, equipment, trade fixtures or improvements
located on the Premises (if any), whether belonging to CEDCO or GELLC, which are
owing at the commencement of this Lease or will be assessed or come due during
the Lease Term or any tax or charge levied in lieu of such taxes and
assessments;
(b) All valid taxes, charges, license fees or similar fees (if any)
imposed by reason of the use of the Premises;
(c) All valid excise, transaction, privilege, license, sales, use and
other taxes (if any) upon the rental or other payments hereunder, the leasehold
estate of either party or the activities of either party pursuant to this Lease,
except for any tax upon or measured by the net income and profits of CEDCO
pursuant to Title 26, U.S.C. or pursuant to State law; and
(d) CEDCO covenants and warrants that neither it nor the Tribe has
taken any action by way of Tribal Council resolution or Tribal referendum or
otherwise which will or would be reasonably likely to prejudice or materially
adversely affect GELLC's rights under this Agreement. Other than gaming related
laws and regulations - the Tribe and/or CEDCO have not enacted any tribal law,
referendum, rule or regulation which affects the interpretation, construction,
scope, reporting or consent obligations of GELLC, or affects the validity,
interpretation and enforceability of this Agreement
CEDCO and GELLC acknowledge that the Tribal Gaming Commission
will from time to time impose reasonable charges and assessments relating to
regulation of the gaming operation by the Tribal Gaming Commission. Such charges
and assessments will be borne by the operations of the business conducted on the
Premises, and shall be deemed an operating expense of the gaming operation.
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GELLC acknowledges that the Tribe is a sovereign governmental
entity, and that sovereign status allows it to enact and enforce laws on
Coquille tribal land except as otherwise contractually bound by the terms of
this Agreement. CEDCO agrees that any imposition of taxes, costs, fees,
expenses, assessments or charges, other than those reasonable charges and
assessments imposed by the Tribe or the Tribal Gaming Commission on CEDCO as set
forth above, including any act, law, rule or regulation that modifies or
adversely affects the Limited Waiver of Sovereign Immunity or affects CEDCO's
rights to compel or be the recipient of an order enforcing the binding
arbitration, shall constitute a material breach of this Agreement and CEDCO
agrees that GELLC shall have the opportunity to enforce any and all the terms of
this Agreement notwithstanding any such changes in tribal law. Such action shall
not constitute a material breach if they expressly exempt (or "grandfather")
business activities conducted on the Premises. CEDCO agrees not to modify or
waive any provision of Section 29B of the Business Lease dated February 9, 1995,
between CEDCO and the Tribe, without the prior written consent of GELLC.
Notwithstanding any provision in tribal law, rule or
regulation to the contrary, CEDCO shall be solely responsible for any such
taxes, cost, fees, expenses, assessments or charges of any kind or nature levied
or incurred in violation of this Section. CEDCO and the Tribe shall indemnify
and hold harmless GELLC from any payments made on such costs, fees, expenses,
assessments or charges imposed by the Tribe upon GELLC and CEDCO.
Notwithstanding anything herein or any provision in tribal
law, rule or regulation to the contrary whether presently existing or
hereinafter arising, GELLC's remedy of binding arbitration and compelling and
registering the same via court action shall be an available forum and
non-exclusive remedy for GELLC to redress its grievances, if any, against CEDCO.
GELLC may seek a refund, rebate or abatement of any tax levied
or assessed on the Premises but only if arrangements for paying such tax prior
to it becoming a lien on the Premises, together with all interest and penalties,
are made to the written satisfaction of CEDCO.
7. UTILITIES.
CEDCO represents and warrants that all water, sanitary sewers, storm
sewers, gas lines, electric current and telephone current and telephone
facilities are available for connection to the Premises in the areas immediately
adjacent thereto. CEDCO will contract, in its own name, for and pay when due all
charges for connection or use of water, gas, electricity, telephone, garbage
collection, sewer use and other utility services supplied to the Premises during
the Lease Term. CEDCO may utilize loan proceeds provided by GELLC for payments
to be made pursuant to this Section. All such charges will be assessed pro rata
among GELLC and the subleasees of GELLC from time to time in a manner determined
by the parties. Notwithstanding any other provision to the contrary, charges to
GELLC will not exceed amounts which GELLC receives from tenants under any
Sublease. If GELLC is a sublessee, pursuant to a Sublease, GELLC will pay its
pro rata share of all such charges.
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8. INSURANCE.
CEDCO will maintain at its own expense the following types and amounts
of insurance (which may be included under a blanket insurance policy if all
other terms hereof are satisfied), in addition to such other insurance as GELLC
may reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a location designated by the federal Secretary of Housing and
Urban Development as a flood hazard area), earthquakes (if the Premises are in
an area subject to destructive earthquakes since October 8, 1896), boiler
explosion (if there is any boiler upon the Premises), sprinkler damage, all
matters covered by a standard extended coverage endorsement and such other risks
as GELLC may require, insuring the Premises, the equipment and all improvements
thereon for not less than ninety percent (90%) of their full insurable
replacement cost. In the event that CEDCO is unable to obtain the insurance as
required herein at reasonable rates, CEDCO is excused from the obligation to
purchase such insurance. In such event, CEDCO will acquire the fullest possible
coverage available at reasonable costs as approved by GELLC, such approval will
not be unreasonably withheld.
(b) Comprehensive public liability and property damage insurance,
including a products liability clause and pollution legal liability insurance,
covering CEDCO and GELLC against bodily injury liability, property damage
liability, automobile bodily injury and property damage liability, and tank
leakage for sudden and accidental as well as gradual occurrences, including
without limitation any liability arising out of the ownership, maintenance,
repair, condition or operation of the Premises or adjoining ways, streets or
sidewalks and, if applicable, insurance covering GELLC, against liability
arising from the sale of liquor, beer or wine on the Premises. Such insurance
policy or policies will contain a "severability of interest" clause or
endorsement which precludes the insurer from denying the claim of either GELLC
or CEDCO because of the negligence or other acts of the other, will be in
amounts of not less than $5,000,000 per personal injury and occurrence with
respect to any insured liability, whether for personal injury or property
damage, or such higher limits as GELLC may reasonably require from time to time,
and will be of form and substance satisfactory to GELLC.
(c) Workmen's compensation, employer's liability and such other
insurance as may be necessary to comply with applicable laws.
All insurance policies required to be obtained by CEDCO hereunder will:
(i) Provide for a waiver of subrogation by the insurer as
to claims against GELLC, its employees and agents;
(ii) Provide that such insurance cannot be unreasonably
canceled, invalidated or suspended on account of the conduct of CEDCO,
its officers, directors, employees or agents;
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(iii) Provide that any "no other insurance" clause in the
insurance policy will exclude any policies of insurance maintained by
GELLC and that the insurance policy will not be brought into
contribution with insurance maintained by GELLC;
(iv) Contain a standard without contribution mortgages
clause endorsement in favor or any lender designated by GELLC;
(v) Provide that the policy of insurance will not be
terminated, canceled or substantially modified without at least thirty
(30) days prior written notice to GELLC and to any lender covered by
any standard mortgage clause endorsement;
(vi) Provide that the insurer will not have the option to
restore the Premises if GELLC elects to terminate this Lease in
accordance with the terms hereof;
(vii) Be issued by insurance companies having a rating in
Best's Insurance Guide of Class VI or better; and
(viii) Provide that GELLC be designated as an additional named
insured and loss payee as its interests may appear.
CEDCO will provide to GELLC and any lender designated by GELLC
certification of insurance or copies of insurance policies evidencing that
insurance satisfying the requirements of this Lease is in effect at all times.
9. TAX AND INSURANCE IMPOUND. [INTENTIONALLY DELETED.]
10. PAYMENT OF RENTAL AND OTHER SUMS.
All rental and other sums which GELLC is required to pay hereunder will
be payable in full when due without right of setoff against any other claim
against or indebtedness of CEDCO.
11. ADVANCE RENTAL.
The parties acknowledge that prior to the execution of this Lease,
GELLC paid to CEDCO, prepaid rent in an amount equal to $500,000. Such advance
rental was used by CEDCO to prepay rental amounts due under the Business Lease
12. PLANS, SPECIFICATIONS, AND LOCATION OF IMPROVEMENTS ON THE
PREMISES.
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
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above, GELLC shall have no duty, obligation or right to approve Plans and
Specifications under this Section.
13. TESTING.
At the expense of CEDCO, CEDCO has had the Premises inspected for
seepage, spillage and other environmental concerns by an inspector acceptable to
GELLC. CEDCO represents and warrants that it has received a Level I and Level II
Sampling and Analysis dated February 17, 1994, applicable to the Premises and
that the Premises is in full and complete compliance with the laws applicable
thereto. CEDCO will have any UST and all underground piping connected thereto
inspected and monitored in accordance with applicable monitoring schedule
provided under the Laws. CEDCO will provide GELLC with written certified results
of all inspections performed on the Premises. All costs associated with the
inspection, preparation and certification of results, as well as those
associated with correcting problems revealed by said inspections, will be borne
by CEDCO. GELLC hereby reserves the right to require additional inspections from
time to time as it may determine. All inspections and tests performed on the
Premises will be in compliance with the Laws and any other applicable
governmental regulation.
14. PERMITS.
CEDCO will make application for and attempt to procure all necessary
permits from all applicable governmental agencies authorizing the activities
contemplated herein, including, without limitation, excavation and demolition,
grading, paving, landscaping, highway ingress and egress development, utility
connections, construction and improvement of the Premises pursuant to the Plans
and Specifications.
15. 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 possible date after preparation of the Plans and Specifications. All
contractors and subcontractors will be bonded and all contracts and subcontracts
will include incentives for on-time performance and penalties for late
performance.
(b) Notwithstanding the above, GELLC shall have no duty or obligation
nor the right to approve Plans and Specifications or other documents set forth
in this section.
16. DELIVERY OF EQUIPMENT AND STOCK.
GELLC or any sublessee of GELLC will have the right to deliver and
install on the Premises any equipment, trade fixtures, stock or other materials
to be used by them. All equipment or other personal property used in the
improvements and on the Premises supplied
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or installed at the sole cost and expense of GELLC or any sublessee of GELLC
will be the sole property of GELLC or such sublessee.
17. ALTERATIONS.
Lessee may alter the exterior or structural elements of the Premises in
any manner in accordance with the Plans and Specifications regarding
construction and development of the Property without the prior written consent
of CEDCO. Any work at any time commenced by GELLC on the Premises will be
pursued diligently to completion, will be of good workmanship and will comply
fully with all the terms of this Lease. Any addition to or alteration of the
Premises will be deemed a part of the Premises and belong to CEDCO at the
expiration of the Lease Term.
18. USE.
CEDCO hereby represents and warrants to GELLC that the use of the
Premises pursuant to the Plans and Specifications for the Premises will be a
permitted use of the Premises under all applicable zoning or other use
restrictions or regulations. GELLC will use the Premises solely as developed
pursuant to the Plans and Specifications. GELLC will sublease the Premises to
CEDCO for operation consistent with the Plans and Specifications. Pursuant to
the Sublease of the Premises, CEDCO will at all times during the Lease Term
diligently operate its business 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 18. CEDCO will not cease diligent
operation of business under the Sublease during the Lease Term of this Lease,
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 in the Sublease and related
financing agreements on the terms and conditions set forth therein. The
exceptions listed in this Section 18 will not affect CEDCO's responsibility for
breach hereunder.
19. COMPLIANCE WITH LAWS.
CEDCO represents and warrants that GELLC's proposed use and occupation
of the Premises, and the condition thereof, will not be in violation of any of
the Laws or any other applicable governmental requirement. GELLC will comply
with all of the Laws during the Lease Term and any extensions or renewals
thereof, including, without limitation, any financial responsibility and
assurance requirements imposed thereunder. GELLC will, at GELLC's sole cost and
expense (except for such costs and expenses to be paid by CEDCO pursuant to
subsection (d) of Section 6 hereof), comply 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 any environmental agency having jurisdiction. GELLC 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
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business and GELLC will pay for such increase. GELLC will supply CEDCO with a
copy of any notification or report required by the Laws and given to any
federal, state or local agency in connection with the Premises with five (5)
days of the date that such notification or report is sent to such agency.
20. OPERATION OF PREMISES.
GELLC will operate and maintain the Premises in compliance with and
will not cause or permit the Premises to be in violation of, any of the Laws.
GELLC will comply with all applicable reporting and record keeping requirements,
including, but not limited to, disclosure of new UST system installations,
suspected releases of Regulated Substances from any UST system, corrective and
remedial actions necessary to contain, correct and clean-up a release of
Regulated Substances, and final closure. GELLC will immediately notify CEDCO, in
writing, of (i) the presence on or under the Premises, or the escape, seepage,
leakage, spillage, discharge, emission or release from the UST system of any
Regulated Substances, apparent or real, (ii) any and all enforcement, clean-up,
remedial, removal or other governmental or regulatory actions threatened,
instituted or completed pursuant to any Law affecting the Premises and (iii) all
claims made or threatened by any third party against GELLC 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.
21. MAINTENANCE.
CEDCO represents and warrants that the Premises has been inspected and
is in compliance with all applicable Laws. GELLC will at all times at its own
expense maintain, repair and replace, as necessary, the Premises to keep the
same in good working condition, including all portions of the Premises, whether
or not the Premises was in such condition upon the commencement of this Lease.
22. INDEMNIFICATION.
Except for negligence of GELLC or any of its members, officers, agents
or employees, CEDCO will indemnify and hold harmless GELLC and GELLC's members,
officers, agents and 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'
operation of or relating in any manner to the Premises. CEDCO will indemnify and
hold harmless GELLC and its members, officers and agents, from and against any
and all claims, demands, causes of action, suits, proceedings, liabilities,
damages, losses, costs and expenses related to the original design or
construction, latent defects, alteration, maintenance, tank leakage for sudden
and accidental as well as gradual occurrences, the presence on or under, or the
escape, seepage, leakage, spillage or discharge of Regulated Substances with
respect to Premises and for violations of any of the Laws, or any governmental
regulations or other applicable
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governmental requirements, including without limitation, and as relates to
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 GELLC's and
CEDCO's obligations under this paragraph will survive the expiration or earlier
termination of this Lease for any reason.
23. QUIET ENJOYMENT.
CEDCO covenants that it alone has the full right and lawful authority
to enter into this Lease for the full term hereof, that it is lawfully seized of
the Premises pursuant to the Business Lease free and clear of all other
tenancies, restrictions and encumbrances. So long as GELLC will pay rental and
other sums herein provided and will keep and perform all of the terms, covenants
and conditions on its part herein contained, CEDCO covenants that GELLC, subject
to CEDCO's rights herein, will have the right to the peaceful and quiet
occupancy of the Premises. CEDCO will hold harmless and defend GELLC against any
and all claims or defenses challenging GELLC's right and authority to occupy,
use and enjoy the Premises.
24. 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 CEDCO, GELLC and those authorized to
exercise such right ("Taking"), GELLC will promptly give written notice thereof
to CEDCO, generally describing the nature and extent of such Taking. CEDCO may
prosecute, if permissible under the appropriate law of the 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. GELLC
will be entitled to any award, compensation or damages designated as GELLC's
resulting from a Taking. Notwithstanding any provision to the contrary, CEDCO
agrees to use its best efforts to prevent commencement of condemnation proceeds
by or at the request of the Coquille Indian Tribe under Tribal or other law
which would interfere with the developed use of the Premises.
(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 GELLC 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. GELLC will be entitled to the entire award for a
Temporary Taking, whether paid by damages, rent or
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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 CEDCO and GELLC as of the date
of such expiration. At the termination of any such use or occupation of the
Premises, GELLC will, at its own cost and expense, promptly commence and
complete the restoration of the Premises. GELLC will not be required to make the
restoration if the term of this Lease expires prior to, or within one-hundred
eighty (180) days of the date of expiration of the Temporary Taking, and in such
event CEDCO 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.
(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 GELLC gives CEDCO notice of such damage
or destruction or that title has vested in the taking authority. GELLC 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 GELLC 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. GELLC 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 elects 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 GELLC 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 determined 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 CEDCO 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
GELLC 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 GELLC is in default under this Lease and such default is
continuing, CEDCO is hereby authorized and empowered, in the name and on behalf
of GELLC and otherwise, to file and prosecute GELLC'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 incident to the collection thereof
to cure such default and any other then existing default under this Lease.
12 - MASTER LEASE
25. INSPECTION.
CEDCO, the Secretary and its authorized representatives will have the
right, upon giving reasonable notice, to enter the Premises or any part thereof
and inspect the same and make photographic or other evidence concerning GELLC's
compliance with the terms of this Lease. GELLC will keep full, complete and
accurate books, records and accounts of all business done including any sales or
other tax reports that GELLC may be required to furnish to any governmental
agency at or from the Premises sufficient to permit CEDCO to verify all
statements, certificates and accounting delivered to CEDCO.
26. 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 CEDCO or
GELLC herein or in 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 false at any time through no
fault of GELLC or CEDCO, or if CEDCO or GELLC renders any false
statement or account;
(ii) If any rent or other monetary sums due remain unpaid for
fifteen (15) days after written notice thereof to GELLC;
(iii) If CEDCO or GELLC fails to perform any of the covenants,
conditions or obligations of this Lease;
(iv) If there is a breach or default hereunder or under any
agreement executed in connection with this Lease or if there is a
breach or default of CEDCO's or GELLC's obligations under this Lease,
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 either CEDCO or GELLC becomes insolvent by reason of
an inability to pay 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 CEDCO or GELLC violates any law, Gaming law, health,
safety or sanitation law, ordinance or regulation or operates the
Premises in a manner that presents a health or safety hazard to its
customers or the public; and
13 - MASTER LEASE
(vii) If CEDCO or GELLC fails to comply with any of the Laws
or any other federal, state and local law.
(b) If any such breach or default does not involve the payment of any
rental or other monetary sum, is not willful or intentional, is not known to the
defaulting party (unless such respective party has given the other notice
thereof) and is within the reasonable power of such party to cure within sixty
(60) days after receipt of notice thereof, then such event will not constitute a
default hereunder, unless otherwise expressly provided herein, unless and until
the nondefaulting party has given the other notice thereof and a period of sixty
(60) days has elapsed, during which period such 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 defaulting party
is diligently pursuing a cure of such breach or default, then such cure period
will continue as long as the defaulting party diligently pursues the cure,
otherwise such cure period will end on the sixtieth (60th) day after notice has
been given.
(c) In the event of any breach or default by CEDCO or GELLC, and with
the written notice of default as specified by paragraph (b) above or such other
notice as may be required by law, CEDCO will be entitled to exercise, at is its
option, concurrently, successively or in any combination, all remedies available
at law or in equity.
27. MORTGAGE AND SUBORDINATION.
(a) GELLC will have a lien upon the Business Lease, this Lease, the
Subleases, 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. CEDCO's interest in the Business Lease, this Lease, leasehold
improvements or equipment will be subordinate to any encumbrances placed upon
such assets only if 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 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 mortgages (specifically
excepting those encumbrances approved by the Secretary and those assets
constructed or procured pursuant to this 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 LESSEE OR AN AFFILIATE OF LESSEE, NEITHER
LESSOR NOR ITS PREDECESSORS IN INTEREST ARE AUTHORIZED TO PLACE ANY LIEN,
MORTGAGE, DEED OR TRUST OR ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF THE
14 - MASTER LEASE
PREMISES, IMPROVEMENTS, EQUIPMENT OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID WITHOUT A WRITTEN RELEASE FROM
LESSEE.
(b) This Lease at all times will be subject to and subordinate to any
security interest now or hereafter placed upon the Business Lease or the
Premises by GELLC all of which will be senior to any security interests placed
by any third party without a prior written release from GELLC. CEDCO covenants
and agrees to execute and deliver, upon GELLC's demand, such further instruments
subordinating this Lease to the lien of any such security interest as shall be
desired by GELLC. Notwithstanding any other provision to the contrary, GELLC
will have the right to remain in possession of the Premises under the terms of
this Lease in the event any loan or security interest remains outstanding
pursuant to the terms of any loan extended by GELLC.
(c) If GELLC extends any loan to CEDCO, its interest will be deemed
subordinate to any such corresponding security interest whether this Lease was
executed before or after such loan agreement and GELLC will have the same rights
with respect to this Lease as if it had been executed and delivered subsequent
to the execution and delivery of any security agreement.
(d) By execution of this Lease, CEDCO gives its consent to GELLC or
Sublessee to, from time to time, hypothecate, mortgage, pledge or alienate
GELLC's or Sublessee's right to or interest in this Lease or Sublease or any
portion thereof for the purpose of borrowing capital for the operation,
development or improvement of the Premises or for the purpose of refinancing any
outstanding debt or a permanent loan, provided, however, such encumbrances will
not exceed the parameters set forth in Section 30.
(e) In the event of a default by GELLC hereunder, CEDCO will notify any
Leasehold or Subleasehold Mortgagee or Sublessee thereof. Prior to termination
of GELLC's interest hereunder as a result of such default, CEDCO will provide
the Leasehold or Subleasehold Mortgagee or Sublessee an opportunity to cure or
remedy such default for the grace period provided in Section 26 of this Lease
plus an additional sixty (60) days. CEDCO will allow such Leasehold or
Subleasehold Mortgagee or Sublessee entry onto the Premises in order to
effectuate any cure or remedy provided herein. In the event the Leasehold or
Subleasehold Mortgagee or Sublessee has commenced a cure or remedy or has
commenced and is diligently pursuing a foreclosure action to terminate GELLC's
interest in this Lease or the Sublease, CEDCO shall not terminate the Lease or
Sublease with respect to any interest other than that of GELLC which is actually
in default.
(f) In the event this Lease or any Sublease is terminated as a result
of any default by GELLC, if the Leasehold or Subleasehold Mortgagee or Sublessee
elects to cure or remedy the default within sixty (60) days of the termination,
CEDCO will enter into a new lease with the Leasehold or Subleasehold Mortgagee
or Sublessee or the nominee of any of them for the remainder of the Lease Term,
effective as of the date of such termination, upon the terms, provisions,
convenience and agreements contained herein provided:
15 - MASTER LEASE
(i) The Leasehold or Subleasehold Mortgagee or Sublessee
will provide CEDCO with the written notice prescribed by paragraph (e)
of this Section 26 prior to such termination;
(ii) The Leasehold or Subleasehold Mortgagee or Sublessee or
the nominee of any of them will make written request upon CEDCO for
such new lease within sixty (60) days after the date of such
termination;
(iii) The Leasehold or Subleasehold Mortgagee or Sublessee or
the nominee of any of them will pay to CEDCO, at the time of execution
and delivery of such new lease, any and all sums owing pursuant to this
Lease prior to termination hereof less any expenses, including
reasonable attorneys' fees, to which the Leasehold or Subleasehold
Mortgagee or the Sublessee or the nominee of any of them has been
subjected by reason of such default;
(iv) The Leasehold or Subleasehold Mortgagee or Sublessee or
the nominee or any of them shall perform and observe all covenants
herein contained within this Lease or any Sublease on GELLC's or
Sublessee's part to be performed and shall further remedy any other
conditions as are capable of being remedied which GELLC or Sublessee
under the terminated Lease or Sublease were obligated to perform;
(v) Such new lease will be subject to GELLC's or Sublessee's
rights under the terminated Lease or Sublease; and
(vi) The GELLC or Sublessee under such new lease will have
the same right, title and interest in the Improvements on the Premises
as the previous GELLC or Sublessee under the terminated Lease or
Sublease.
(g) Nothing contained in this Section 27 will require the Leasehold or
Subleasehold Mortgagee or Sublessee or the nominee of any of them to cure any
default of GELLC, but CEDCO agrees to accept the performance and/or compliance
by any such Leasehold or Subleasehold Mortgagee or Sublessee or the nominee of
any of them with respect to any term, covenant, agreement, provision, condition
or limitation on GELLC's part to be performed hereunder with the same force and
effect as though performed by GELLC.
(h) Upon termination of this Lease or any Sublease and for the period
thereafter during which the Leasehold or Subleasehold Mortgagee or Sublessee
will be entitled to enter into a new lease of the Premises actually subject to
the mortgage, CEDCO or Sublessee will not terminate any Sublease unless such
subtenant shall be default under such Sublease. During such period, the
Leasehold or Subleasehold Mortgagee will receive all rental and other payments
due from subtenants, including subtenants whose attornment CEDCO will have
agreed to accept and will deposit such rents and payments in a separate and
segregated account in trust for the Premises. The Leasehold or Subleasehold
Mortgagee so entitled to receive such sums may withdraw any such sums, from time
to time to pay necessary operating expenses and carrying
16 - MASTER LEASE
charges of the Premises. Upon execution and delivery of such new lease, the
Leasehold or Subleasehold Mortgagee so entitled to receive such sums will
account to CEDCO under the new lease for the balance, if any, of the payments
made under such Sublease, and will thereupon assign the rent under said Sublease
to any Leasehold or Subleasehold Mortgagee in respect of the new lease in the
same manner as such rents had been assigned to the Leasehold or Subleasehold
Mortgagee under this Lease.
(i) If a sale under an encumbrance instrument occurs, whether by
transfer, by Deed in Lieu of Foreclosure or by power of sale or foreclosure, the
purchaser at such sale shall succeed to all of the rights, title and interest of
the Lessee or Sublessee in the leasehold or subleasehold estate covered by said
encumbrances. If the purchaser at such sale is the Leasehold or Subleasehold
Mortgagee, the Leasehold or Subleasehold Mortgagee may sell or assign the
Leasehold or Subleasehold without any further consent of the CEDCO; provided,
however, that the assignee shall agree in writing to be bound by all of the
terms and conditions of the Lease or Sublease. If a sale under the encumbrance
occurs and the purchaser is a party other than the Leasehold or Subleasehold
Mortgagee such purchaser, as successor in interest to the GELLC or Sublessee,
will be bound by all of the terms and conditions of the Lease or Sublease.
(j) CEDCO hereby consents to the inclusion of a provision in any
encumbrance for the assignment of rents from GELLC or Sublessees of the Premises
to the Leasehold or Subleasehold Mortgagee as the case may be, effective upon
any default under a leasehold or subleasehold encumbrance instrument, provided,
however, such encumbrances will be within the parameters set forth in Section
30.
(k) No surrender, cancellation or termination (except upon expiration
or earlier termination by CEDCO of this Lease) by CEDCO or GELLC, or any
modification or amendment of this Lease by joint action or agreement, will be
binding against any Leasehold or Subleasehold Mortgagee without the prior
written consent of any such Leasehold or Subleasehold Mortgagee, if such
Leasehold or Subleasehold Mortgagee will have provided notice (under the terms
of subparagraph (e) of this Section 27 prior to any action described in this
subsection (k)).
(l) CEDCO will execute and deliver whatever instruments may be required
for the purposes set forth in this Section 27, 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.
28. ESTOPPEL CERTIFICATES.
Subject to the terms and conditions of the escrow agreement related to
the purchase of the Premises, CEDCO will provide certification that it has full
power and authority to enter into the agreements contemplated herein and operate
the Premises pursuant thereto. 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
17 - MASTER LEASE
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.
29. ASSIGNMENT.
(a) GELLC will have the right to sell or convey up to forty-nine
percent (49%) of its right, title and interest as Lessee under this Lease in
whole or in part with the prior written consent of CEDCO which consent will not
be unreasonably withheld. CEDCO may consider the proposed transferee's financial
condition or moral character or any reason which 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 or any 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 rights, 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 or sublease, 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. Notwithstanding any
provision herein to the contrary, GELLC may make a security assignment of its
interest herein to one 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 a complex transaction with and upon the particular
purposes for which the Premises will be. 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 GELLC, 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 which
are enforceable by GELLC, the transfer to such assignee of all necessary
licenses and franchises to continue operating the 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
18 - MASTER LEASE
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 Master 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 (as defined in the Participating Lease);
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. CEDCO
acknowledges that any act in contravention of this Section 29 will cause GELLC
irreparable harm and that damages are presently difficult to measure.
(c) Members of GELLC shall not assign any interest in GELLC without
CEDCO's written consent.
30. DEVELOPMENT AND SUBLEASE OF THE SITE II PREMISES.
[INTENTIONALLY OMITTED]
31. 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, ▇▇▇▇▇, DHL, Express
Mail, Purolator or by other recognized (l 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, copies addressed to:
Full House Resorts, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and
19 - MASTER LEASE
GELLC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
GTECH Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
With additional copies to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and
Office of the General Counsel
GTECH Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to Lessor, addressed to:
Coquille Economic Development Corporation
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
WITH COPIES TO:
Ater ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Native American Program
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Oregon Legal Services Corporation
▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20 - MASTER LEASE
Coquille Indian Tribe
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Tribal Chairman
32. 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 an 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 (10) day period then the appointed arbitrator
will be the sole arbitrator of the dispute notwithstanding Section
32(a)(ii). CEDCO's remedy 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 (2) arbitrators have been appointed, they
will agree upon and appoint, within ten (10) days following their
appointment, a third arbitrator, and if the two (2) 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
21 - MASTER LEASE
be commenced or brought in the courts of the State of Oregon in the
manner set forth in Section 31 (b)(vi).
(b) Sovereign Immunity: Limited Waiver
(i) Except as set forth in this Section 32, 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 32.
(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 hereby, subject always to the
conditions of paragraphs (ii), (iii), (iv), (v), (vi) and (vii) of this
Section 32(b), 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, the 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: (i) 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 GELLC's,
or its sublessees or any of them, under this Lease; and/or (ii)
enforcement of an arbitration award under Section 32; and/or (iii) an
order compelling arbitration under Section 32.
(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
22 - MASTER LEASE
brought in the appropriate State Court of Oregon. Neither party shall
argue that the U.S. District Court does not have jurisdiction and both
parties shall assert that it does have jurisdiction over any judicial
proceedings. Compliance with the provisions of this Section 32 shall
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 and agreed upon in this Section 32. 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 27(a) hereof.
33. HOLDING OVER.
If GELLC remains in possession of the Premises after the expiration of
the term hereof, GELLC 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 CEDCO will be deemed a consent to such holding over.
GELLC 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.
34. REMOVAL OF LESSEE'S PROPERTY.
At the expiration of the Lease Term, GELLC may remove from the Premises
all personal property belonging to GELLC.
35. CONSENT.
(a) Consent of GELLC.
GELLC will have no liability for damages resulting from GELLC's failure
to give any consent, approval or instruction reserved to GELLC, CEDCO's sole
remedy in any such event being an action for injunctive relief.
(b) Consent in General.
23 - MASTER LEASE
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 will be
unreasonably withheld or delayed; provided, that the foregoing does 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 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 shall proceed accordingly.
36. WAIVER AND AMENDMENT.
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.
37. JOINT VENTURE.
No provision or any one or more of the agreements contained herein, is
intended, nor will the same be deemed or construed, to create a partnership
between CEDCO and GELLC, to make them joint venturers, nor to make CEDCO in any
way responsible for the debts or losses of GELLC.
38. 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.
39. 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.
40. CONSTRUCTION GENERALLY.
This Lease is a long-term commercial lease between entrepreneurs and
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 and GELLC acknowledge that this Lease is a "true
lease"
24 - MASTER LEASE
and is not a financing lease, equitable mortgage, mortgage, deed of trust,
security interest or other financing arrangement.
41. 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.
42. 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.
43. ENTIRE AGREEMENT.
This Lease amends, restates and supersedes the Master Lease dated as of
February 9, 1995, as amended, between the parties. 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.
44. COUNTERPARTS.
This Lease may be executed in one or more counterparts, each of which
will be deemed an original.
45. COVENANT OF GOOD FAITH AND FAIR DEALING.
CEDCO and GELLC hereby specifically warrant and represent to each other
that neither will act in any manner that would cause this Lease or the
Transaction Documents to be altered, amended, modified, canceled or terminated,
except as other wise set forth herein, without the consent of the other. CEDCO
and GELLC further warrant and represent that they will take all actions
necessary to ensure that this Lease and all related agreements will remain in
good standing at all times and will fully cooperate with each other in achieving
the goals of this Lease and any other agreement related hereto.
46. CONFIDENTIALITY; NON-DISCLOSURE.
CEDCO and GELLC agree that confidential information will remain
confidential and will not be disclosed without the written consent of the other
parties to any third party, except the Tribal Council, the National Indian
Gaming Commission, the Bureau of Indian Affairs, the
25 - MASTER LEASE
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 CEDCO or FHR, 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.
47. 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 Master Lease by this reference, to the extent
applicable.
48. 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 this 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 under the Participating Lease, of even
date herewith, between the parties, (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 48 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 48 shall be to such agreements as in effect on the date thereof.
IN WITNESS WHEREOF, CEDCO and GELLC have entered into this Lease as of
the date first above written.
26 - MASTER LEASE
LESSOR:
COQUILLE ECONOMIC DEVELOPMENT
CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: President
LESSEE:
GAMING ENTERTAINMENT L.L.C.
By its members, as follows:
Dreamport, Inc. (formerly GTECH Gaming
Subsidiary 1 Corporation)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Title: President
-----------------------------------
GTECH Gaming Subsidiary 2 Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Title: President
-----------------------------------
Full House Subsidiary, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Full House Joint Venture Subsidiary, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
27 - MASTER LEASE
STATE OF Oregon )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer, personally
appeared ▇▇▇ ▇▇▇▇▇, 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: 5/26/98
[ S E A L ]
STATE OF Rhode Island )
) ss.
County of MULTNOMAH )
On this 7th day of October, 1996, before me, the undersigned officer, personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. of Dreamport, Inc., formerly known as GTECH Gaming
Subsidiary 1 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
GTECH Dreamport, Inc. for the purpose therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: June 26, 1997
[ S E A L ]
28 - MASTER LEASE
STATE OF Rhode Island )
) ss.
County of Kent )
On this 7th day of October, 1996, before me, the undersigned officer, personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: June 26, 1997
29 - MASTER LEASE
[ S E A L ]
STATE OF Oregon )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer, personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: May 26, 1998
[ S E A L ]
STATE OF Oregon )
) ss.
County of MULTNOMAH )
On this 8th day of October, 1996, before me, the undersigned officer, personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: May 26, 1998
[ S E A L ]
30 - MASTER LEASE
SECTIONS 81 AND 84 ACCOMMODATION APPROVAL,
CONSENT, AND DISCLAIMER
FOR
MASTER LEASE
The COQUILLE INDIAN TRIBE, a federally recognized Indian tribe
(hereafter "Tribe") has submitted a First Amended and Restated MASTER 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
Department 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
31 - MASTER LEASE
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
32 - MASTER LEASE
EXHIBIT B
CASINO IMPROVEMENTS
33 - MASTER LEASE