Exhibit 10.1
MASTER LEASE AGREEMENT PNC LEASING, LLC
LEASE NO.________ PNCBANK
THIS MASTER LEASE AGREEMENT ("LEASE") is made this 27TH day of January, 2000, by
and between PNC LEASING, LLC ("Lessor"), a wholly-owned subsidiary of PNC Bank,
National Association (the "BANK"), with an address at Two PNC Plaza, 13th Floor,
620 Liberty Avenue, Pittsburgh, Pennsylvania 15222-2719, and MOUNTAINEER PARK,
INC. ("LESSEE") with its principal place of business at State Route 2, P.O. Box
358, Chester, West Virginia 26034.
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, all the machinery, equipment and other personal property (individually
an "ITEM OF EQUIPMENT" and collectively the "EQUIPMENT") described in the
Schedules of Leased Equipment which may be executed by Lessor and Lessee and
attached hereto or incorporated herein by reference ("SCHEDULES"). "Equipment"
shall mean the Equipment described in a specific Schedule, unless the context
clearly indicates otherwise. The disposition of any rights or obligations of
either party under this Lease in conjunction with any Schedule shall not affect
the rights and/or obligations with either party under any other Schedule, so
long as both the Lessor and the Lessee are not in default under this Lease or
any Schedule. In the event of any such default either the Lessee or the Lessor,
as appropriate, may declare this Lease and any Schedule to be in default
hereunder and such party may proceed with its remedies in accordance with
paragraph 24 herein, with respect to any particular Schedule or all Schedules.
An executed counterpart of this Lease (including any Schedules, supplements,
amendments, addenda or riders thereto) or a photocopy thereof, together with an
executed original of any numbered Schedule marked "Lessor", shall be the
original "lease" for the Equipment described in such Schedule and together they
shall constitute a separate and enforceable lease. All other executed
counterparts shall be marked and considered a "Duplicate". Facsimiles will be
considered "originals" upon receipt and countersignature by Lessor for all
evidentiary purposes including any requirement of a "writing" under applicable
Statute of Frauds provisions. To the extent this Lease constitutes chattel
paper, as that term is defined in the Uniform Commercial Code as adopted and in
effect in the State of West Virginia ("UCC"), no security interest in the Lease
may be created through the transfer of possession of any counterpart other than
Lessor's counterpart of the numbered Schedule.
2. TERM. The obligations under this Lease begin with Lessor's written acceptance
and shall end upon full performance and observance of all terms, conditions and
covenants of the Lease and any extensions. The rental term for Equipment begins
on the date indicated on the related Schedule and shall end on the last day of
the term stated in such Schedule. Lessee may not terminate the Lease or any
Schedule prior to the last day of the term except as set forth herein or such
Schedule or the Supplement thereto. Any interim rental term shall be set forth
in any such Schedule.
3. RENT. The rent, including interim rental payments, for the Equipment shall be
the amount stated in the applicable Schedule (the "RENT"). RENT IS AN ABSOLUTE
OBLIGATION OF LESSEE DUE AS SPECIFIED IN EACH APPLICABLE SCHEDULE IRRESPECTIVE
OF ANY CLAIMS, DEMANDS, SET-OFFS, ACTIONS, SUITS OR PROCEEDINGS THAT LESSEE MAY
HAVE OR ASSERT AGAINST LESSOR OR ANY VENDOR OF EQUIPMENT. Rent shall be payable
to Lessor at P.O. Box 640306, Pittsburgh, PA 15264-0306, or at such other place
as Lessor or its assigns may designate in writing to Lessee.
4. RELATED DOCUMENTS. Reference is made to the following related documents
executed by the Lessee, the Lessor and MTR Gaming Group, Inc., a Delaware
corporation (the "Guarantor") in connection with the transaction contemplated
herein: that certain Schedule of Leased Equipment dated as of the date hereof
(the "Schedule"), that certain Supplement to Schedule of Leased Equipment dated
as of the date hereof (the "Supplement"), that certain Bill of Sale dated as of
the date hereof (the "Bill of Sale"), that certain Proposal Letter dated as of
December 8, 1999 (the "Proposal") and that certain Guaranty Agreement dated as
of the date hereof (the "Guaranty"), collectively, the "Leasing Documents".
5. DELINQUENT RENT PENALTY. If any Rent or other amount due is not paid when
due, Lessee agrees to pay a delinquent rent penalty of five percent (5%) on the
amount of such Rent or other amount due, but not exceeding the lawful maximum,
if any. Delinquent interest at a rate per annum equal to the Bank's prime rate
shall be payable on demand with respect to all such delinquent amounts. Interest
shall accrue whether or not judgment has been entered.
6. ADVANCES. As set forth in the Leasing Documents, and subject to the terms and
conditions of the Proposal, Lessor shall, at Lessee's request, make such
advances, deposits and reimbursements as may be required for purchase of the
Equipment. Before Lessor makes any advance, Lessee agrees to sign and deliver a
Progress Payment Addendum and any other documents Lessor may reasonably request,
such as certified resolutions, incumbency certificates or other evidence of
authority and opinions of counsel in form and substance reasonably satisfactory
to Lessor.
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7. DELIVERY AND INSTALLATION. Lessee will select the Equipment and the supplier,
and in reliance thereon, Lessor will order the Equipment, or Lessor may, at its
option, accept from Lessee an assignment of any existing purchase order. Lessor
shall not be liable for loss or damage for any reason, such as failure of or
delay in delivery, delivery to wrong location, delivery of improper equipment or
property other than the Equipment, defects in or damage to the Equipment,
governmental regulations (except as set forth in paragraph 27), strikes,
embargoes or other causes, circumstances or events. If the cost of any Item of
Equipment differs from the price set forth in the purchase order, the periodic
rental shall be changed to fully reflect any such difference.
8. WARRANTY OF LESSEE'S QUIET POSSESSION. Lessor covenants, subject to the
disclaimer of warranties set forth immediately below and the notice provisions
set forth in paragraph 11, that so long as Lessee faithfully performs this
Lease, Lessee may quietly possess and use the Equipment without interference by
Lessor, or by any party claiming by or through Lessor.
9. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES AND AGREES THAT (i) THE
EQUIPMENT AND EACH PART THEREOF IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE
SELECTED BY AND ACCEPTABLE TO LESSEE, (ii) LESSEE IS SATISFIED THAT THE
EQUIPMENT AND EACH PART THEREOF IS SUITABLE FOR ITS RESPECTIVE PURPOSE, (iii)
LESSOR IS NOT A MERCHANT, MANUFACTURER OR A DEALER IN PROPERTY OF SUCH KIND,
(iv) THE EQUIPMENT AND EACH PART THEREOF IS LEASED HEREUNDER SUBJECT TO ALL
APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS NOW IN EFFECT OR HEREAFTER ADOPTED
AND IN THE STATE AND CONDITION WHEN THE SAME FIRST BECAME SUBJECT TO THIS LEASE,
WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND BY LESSOR, AND (v) LESSOR LEASES
THE EQUIPMENT, AS IS, WITHOUT WARRANTY OR REPRESENTATION EITHER EXPRESS OR
IMPLIED, AS TO (A) THE CONDITION, FITNESS, DESIGN, QUALITY, CAPACITY,
WORKMANSHIP, OPERATION, AND MERCHANTABILITY OF THE EQUIPMENT, (B) LESSOR'S TITLE
THERETO, (C) THE ABILITY OF ANY EQUIPMENT WHICH CONTAINS OR MAY BE AFFECTED BY
COMPUTER APPLICATIONS OR MICROPROCESSOR CHIPS TO RECOGNIZE AND PROPERLY PERFORM
DATE-SENSITIVE FUNCTIONS INVOLVING DATES PRIOR TO AND AFTER DECEMBER 31, 1999,
I.E., "YEAR 2000 COMPLIANT", OR (D) ANY OTHER MATTER WHATSOEVER, IT BEING AGREED
THAT ALL SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE,
AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF LESSOR
ARE HEREBY WAIVED BY LESSEE. THE DISCLAIMERS OF WARRANTY SET FORTH IN THIS
PARAGRAPH 9 INURE ONLY TO THE BENEFIT OF THE LESSEE AND LESSOR, AND THEIR
SUCCESSORS AND ASSIGNS. Lessor is not responsible or liable for any direct,
indirect, incidental, or consequential damage to, or loss resulting from, the
installation, operation, or use of the Equipment or any product manufactured
thereby. Lessee's recourse for breach of any representation or warranty of the
vendor or supplier is limited to such vendor or supplier. Lessee will be
subrogated to Lessor's claims, if any, against the manufacturer or supplier of
the Equipment for breach of any warranty or representation and, upon written
request from Lessee, Lessor shall take all reasonable action requested by Lessee
to enforce any such warranty, express or implied, applicable to any of the
Equipment, which is enforceable by Lessor in its own name, provided, however,
that (a) Lessee is not in default and (b) Lessor shall not be obligated to
resort to litigation to enforce any such warranty unless Lessee shall pay all
expenses in connection therewith. NOTWITHSTANDING THE FOREGOING, LESSEE'S
OBLIGATIONS TO PAY THE RENTALS OR OTHERWISE UNDER THIS LEASE SHALL BE AND ARE
ABSOLUTE AND UNCONDITIONAL. All proceeds of any such warranty recovery from the
manufacturer or supplier of the Equipment shall first be used to replace or
repair the affected Equipment if reasonably possible or appropriate to apply
such recovery.
10. NATURE OF EQUIPMENT. The Equipment shall remain personal property even if it
is affixed to any real property. Lessee shall obtain and cause to be recorded,
where appropriate, at its own expense, from each landlord, owner, mortgagee or
any person or entity having an encumbrance or lien upon the real property where
any of the Equipment is located, a waiver of any lien, encumbrance or interest
which such third party might have or hereafter obtain or claim with respect to
the Equipment. Lessee, at its expense, will protect and defend Lessor's title to
the Equipment and will do everything required to keep the Equipment free and
clear of all claims, levies, liens and encumbrances. Lessor assumes no liability
and makes no representation as to the treatment by Lessee of this Lease, the
Equipment, or the rental payments for financial accounting or tax purposes.
11. LESSOR'S RIGHT OF INSPECTION. Subject to compliance with West Virginia law
applicable to gaming equipment, Lessor, or its authorized agents, shall have the
right during normal business hours to enter upon the premises where the
Equipment is located for the purpose of inspection. Provided no Event of Default
has occurred and is continuing (unless Lessor has determined that neither Lessee
nor Guarantor has made a good faith attempt to cure as set forth in paragraphs
23 and 30 hereof, and with reference to and respect for the warranty set forth
in paragraph 8 hereof) Lessor shall provide Lessee reasonable prior notice of
such inspection.
12. USE OF EQUIPMENT. Lessee represents that it is leasing the Equipment for a
business or commercial purpose and not for personal, family or household use.
Lessee must use the Equipment in a careful and proper manner in conformity with
(i) all statutes and regulations of each governmental authority having
jurisdiction over Lessee and/or the Equipment and its use, and (ii) all policies
of insurance relating to the Equipment and/or its use. In addition, Lessee shall
not (i) use the Equipment in any manner that would impair the applicability of
manufacturer's warranties or render the Equipment unfit for its originally
intended use; (ii) permit anyone other than authorized and competent personnel
to operate the Equipment; nor (iii) terminate the use of the Equipment prior to
the last day of the term indicated in the applicable Schedule.
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13. MAINTENANCE, REPAIRS AND ALTERATIONS.
a. At its expense Lessee shall maintain, operate, repair and make all
modifications to the Equipment in accordance with good industry practice,
manufacturer's warranty requirements and specifications and Lessee's established
operation, maintenance and repair programs, without discrimination as to leased
equipment, so as to keep the Equipment in good working order, and so as to
comply with all applicable laws, regulations or governmental actions and so as
not to incur liability (whether or not there is a lack of compliance) under any
environmental law or otherwise account for any release of, or exposure to, any
hazardous material.
b. Without Lessor's prior written consent, Lessee shall make no
alterations, modifications or attachments to the Equipment which impair the
economic value, economic and useful life, or functional utility of the
Equipment.
i. All alterations, modifications and attachments made to the
Equipment must be removed without damaging the functional capabilities or
economic value of the Equipment upon the termination of the Lease. If not so
removed, they shall automatically become Lessor's property and become part of
the Equipment.
ii. Under no circumstances shall any such alteration,
modification or attachment be subject to third party financing or encumbered by
Lessee or result in the creation of a mechanic's or materialman's lien,
excepting as may arise by operation of law pending payment within ordinary
business terms.
c. Lessor shall not be required to maintain, repair or replace the
Equipment or part thereto and Lessee hereby waives the right, however arising,
to
i. require Lessor to maintain, repair or replace any of the
Equipment or part thereto, or
ii. make repairs at Lessor's expense pursuant to any
applicable law.
d. Notwithstanding the foregoing or any other provision of this Lease
or the Leasing Documents, Lessee, in the ordinary course of its business may
replace and/or renovate any of the Equipment with equipment of equal or better
economic value and functionability provided that Lessee
i. provides the Lessor with reasonable prior written notice of
such replacement or renovation;
ii. conveys title to the replacement equipment or causes the
same to be conveyed to the Lessor at the time of the replacement;
iii. cooperates with the Lessor in promptly perfecting
Lessor's title to and ownership of the equipment, including but not limited to,
the filing of UCC-1 Financing Statements and
iv. takes all steps necessary to assure that the replacement
equipment becomes Equipment subject to the Lease.
(e) Subject to the notice provisions of paragraph 11, and the warranty
provisions of paragraph 8, Lessor may review Lessee's established operating
procedures and maintenance records to assure compliance with this section.
14. RISK OF LOSS, DAMAGE AND THEFT.
(a) Lessee will bear all risk of loss, damage, theft or destruction,
partial or complete, to the Equipment from and after delivery of the Equipment
to a carrier FOB point of origin, whether the terms of shipment require or
authorize the Equipment to be shipped by carrier, to be delivered to Lessee's
place or places of business, or provide that Lessee accept possession of or
title to the Equipment at any other location. Lessee shall promptly notify
Lessor of any theft of or loss or damage to the Equipment.
(b) Neither total nor partial loss of use or possession of the
Equipment shall abate the Rent.
(c) The Equipment shall be deemed subjected to total loss (i) if it has
disappeared regardless of the reason for disappearance or (ii) if it has
sustained physical damage and the estimated cost of repair exceeds 75% of its
fair market value on the date of damage. Lessee's duty to pay Rent for the
Equipment subjected to total loss shall be discharged by paying to Lessor, on
demand, all accrued but unpaid Rent for such Equipment as of the date of
disappearance or damage, plus the greater of: (i) Lessor's book value of the
Equipment, which shall be deemed to be the Equipment's cost as set forth in the
applicable Schedule minus straight-line depreciation based on recognized
physical life prorated to the date of disappearance or damage, or (ii) the fair
market value of the Equipment as of the date of disappearance or damage.
Notwithstanding anything in this Lease or the Leasing Documents to the contrary,
Lessee shall incur and Lessor shall charge no prepayment penalty in connection
with payments for total loss of the Equipment under this paragraph 14. The
amount of applicable insurance proceeds, if any, actually received by Lessor
shall be subtracted from the amount for which Lessee is liable under this
paragraph 14.
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(d) Lessee shall cause the Equipment subjected to partial loss to be
restored to original capability. Lessor shall, upon receiving a written
undertaking by the Lessee to restore the Equipment subject to partial loss,
promptly pay to Lessee the proceeds of any insurance or compensation received by
Lessor, by reason of such partial loss to facilitate such restoration.
(e) Lessor shall not be obligated to undertake the collection of any
claim against any person for either total or partial loss of the Equipment,
provided that, after Lessee discharges its obligations to Lessor under either
paragraph 14(c) or 14(d) above, Lessee may, for Lessee's own account, proceed to
recover from third parties and shall be entitled to retain any amount recovered.
Lessor shall promptly supply Lessee with any necessary assignment of claim.
15. INDEMNIFICATION.
(a) NON-TAX LIABILITY. Lessee agrees to indemnify each of Lessor, its
directors, officers and employees and each legal entity, if any, who controls
Lessor (the "INDEMNIFIED PARTIES") and to hold each Indemnified Party harmless
from and against any and all claims, damages, losses, liabilities and expenses
(including all fees and charges of external counsel with whom any Indemnified
Party may consult and all expenses of litigation or preparation therefor) which
any Indemnified Party may incur or which may be asserted against any Indemnified
Party in connection with or arising out of the matters referred to in the Lease
or any related document by any person, entity or governmental authority
(including any person or entity claiming derivatively on behalf of Lessee),
whether (a) arising from or incurred in connection with any breach of a
representation, warranty or covenant by Lessee, (b) the manufacture,
installation, use, condition (including, but not limited to, latent and other
defects and whether or not discoverable by Lessee or Lessor), operation,
ownership, selection, delivery, leasing, removal or return of the Equipment,
regardless of where, how and by whom operated, or (c) arising out of or
resulting from any suit, action, claim, proceeding or governmental
investigation, pending or threatened, whether based on statute, regulation or
order, or tort, or contract or otherwise, before any court or governmental
authority, which arises out of or relates to the Lease or any related document;
PROVIDED, however, that the foregoing indemnity agreement shall not apply to
claims, damages, losses, liabilities and expenses solely attributable to an
Indemnified Party's gross negligence or willful misconduct or violation of any
applicable laws or ordinances. The indemnity agreement contained in this Section
shall survive the termination of this Lease, payment of any amounts due and
assignment of any rights hereunder. Lessee may participate at its expense in the
defense of any such action or claim.
(b) DIRECT TAX COSTS.
(i) Lessee agrees to indemnify, protect, and hold harmless
each Indemnified Party, from and against any and all taxes, license fees,
assessments and other governmental charges, fees, fines or penalties of
whatsoever kind or character and by whomsoever payable, which are levied,
assessed, imposed or incurred during the lease term, (A) on or relating to the
Equipment, including any tax on the sale, ownership, use, leasing, shipment,
transportation, delivery or operation thereof, (B) on the exercise of any
option, election or performance of any obligation by Lessee hereunder, (C) of
the kind generally referred to in items (A) and (B) above which may remain
unpaid as of the date of delivery of the Equipment to Lessee irrespective of
when the same may have been levied, assessed, imposed or incurred, and (D) by
reason of all gross receipts and like taxes on or measured by Rents payable
hereunder levied by any state or local taxing authority having jurisdiction
where the Equipment is located. Lessee agrees to comply with all state and local
laws requiring the filing of ad valorem tax returns relating to the Equipment.
Any statements for taxes received by Lessor shall be promptly forwarded to
Lessee.
(ii) The foregoing subparagraph (i) shall not be deemed to
obligate Lessee to pay (A) any taxes, fees, assessments and charges which may
have been included in Lessor's cost of the Equipment as set forth in Schedule(s)
hereto, (B) any income or like taxes against Lessor on or measured by the net
income from the Rents payable hereunder, or (C) any penalties or charges imposed
against Lessor by the West Virginia Lottery Commission (the "Lottery
Commission") as a result of Lessor's default under the Lease. Lessee shall not
be obligated to pay any amount under subparagraph (b) so long as it shall, at
its expense and in good faith and by appropriate proceedings, contest the
validity or the amount thereof unless such contest would adversely affect the
title of Lessor to the Equipment or would subject the Equipment to forfeiture or
sale. Lessee agrees to indemnify each Indemnified Party against any loss, claim,
demand and expense including legal expense resulting from such nonpayment or
contest.
(c) REFUND OF PAYMENTS. Lessor shall promptly refund or credit to
Lessee any credit, refund or overpayment of taxes or other charges levied,
assessed, imposed or incurred during the Lease term if such amounts were paid by
or on behalf of Lessee and refunded to Lessor.
(d) INDEMNITY PAYMENT. The amount payable pursuant to subparagraphs
15(a) and 15(b) shall be payable upon demand of Lessor accompanied by a
statement describing in reasonable detail such loss, liability, injury, claim,
expense or tax and setting forth the computation of the amount so payable.
Lessor shall provide Lessee with commercially reasonable notice of such demand,
if possible under the circumstances, prior to requiring payment by Lessee.
(e) SURVIVAL. The indemnities and assumptions of liabilities and
obligations of this paragraph 15 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
16. LESSEE'S ASSIGNMENT. Without Lessor's prior written consent, Lessee shall
not assign, bail, sublease, hypothecate, transfer or dispose of the Equipment or
any interest in this Lease nor impair Lessor's title to the Equipment. No
assignment whether or not with Lessor's consent, shall release Lessee or the
Guarantor from any of its respective obligations under the Lease or otherwise
materially adversely affect any rights or remedies of Lessor under the Lease.
Any attempted assignment without Lessor's written consent shall be void and of
no effect. Lessee shall not assign this Lease, nor shall this Lease or any
rights under this Lease or in the Equipment inure to the benefit of any trustee
in bankruptcy, receiver, creditor, or other successor of Lessee whether by
operation of law or otherwise.
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17. LESSOR'S ASSIGNMENT.
(a) Without the consent of the Lottery Commission or the Nevada gaming
authorities, only if such consent is required under applicable law, Lessor shall
not assign, bail, sublease, hypothecate, transfer or dispose of the Equipment or
any interest in this Lease.
(b) Subject to any consents required by subparagraph (a) above, until
such time as there is no further possibility of fundings under the discretionary
leasing facility as described in the Proposal, whether because the Proposal has
expired or terminated or because the amounts have been paid in full to Lessee or
otherwise, Lessor shall not assign, bail, sublease, hypothecate, transfer or
dispose of the Equipment or any interest in this Lease without the prior written
consent of the Lessee which consent shall not be unreasonably withheld; PROVIDED
HOWEVER, that a transfer of Lessor's interest as a result of the Lessor's merger
or consolidation with or acquisition by another bank or other licensed lending
institution or of a change in the organizational structure of the Lessor shall
not require the consent of the Lessee; and provided further that on and after
such time as there is no further possibility of fundings under the discretionary
leasing facility pursuant to the Proposal, all rights of Lessor hereunder in the
Rents and in the Equipment may be assigned, pledged, mortgaged, transferred, or
otherwise disposed of, either in whole or in part, without notice to Lessee. No
such assignee shall be obligated to perform any duty, covenant, or condition
required to be performed by Lessor under the terms of this Lease unless such
assignee expressly assumes such obligations. Lessor shall remain liable to
Lessee hereunder to perform all duties, covenants, and conditions under the
Lease unless and until its proposed assignee is approved by the Lottery
Commission and consented to by the Lessee, (but only if such consent is required
under subparagraph (a) hereof) at which time such assignee can expressly assume
Lessor's obligations, and if expressly assumed, the Lessee hereby releases
Lessor from such obligations. Such assignee shall have all rights, powers and
remedies given to Lessor by this Lease, and shall be named as lender loss payee
or co-insured under all policies of insurance maintained pursuant to paragraph
18 hereof. If Lessor assigns this Lease or the monies due or to become due
hereunder or any other interest herein, Lessee agrees not to assert against
Lessor's assignee any defense, set-off, recoupment, claim or counterclaim which
Lessee may have against Lessor, whether arising under this Lease or any other
transaction between Lessor and Lessee. Subject to paragraph 16 hereof and this
paragraph 17, and subject to paragraph 9 hereof, this Lease inures to the
benefit of, and is binding upon the heirs, personal representatives, successors
and assigns of the parties hereto.
18. INSURANCE. Lessee will at its own expense insure the Equipment in compliance
with the terms and conditions of the Schedule, in form, in an amount and subject
to deductibles, satisfactory to Lessor with insurance carriers approved by
Lessor. The proceeds of any insurance claim due to the theft or loss of or
damage to the Equipment shall be applied as provided in paragraph 14 hereof. In
addition to the compliance with the terms and conditions of the Schedule and the
other terms and conditions of this paragraph 18, Lessee shall comply with the
following conditions:
(a) Lessee, prior to the inception of the term, shall deliver to Lessor
all required policies of insurance or other proper binding evidence of
insurance, which shall be sufficiently detailed to advise Lessor of all types of
coverage and inclusions;
(b) Lessee shall cause each insurer to agree by endorsement to the
policies that each insurer will give at minimum thirty (30) days' written notice
to Lessor before any policy will be altered or cancelled for any reason,
including, without limitation, failure of Lessee to pay premiums;
(c) All coverage must be in effect upon delivery, or when Lessee
assumes the risk of loss, whichever is earlier, and will provide coverage
without geographic limitation;
(d) All policies must provide that Lessor is an additional insured for
all aspects of general liability insurance, and is lender loss payee for all
aspects of insurance relating to the theft or loss of or damage to the
Equipment;
(e) Lessee will furnish renewal policies or renewal evidence of
insurance listing Lessor as an additional insured and lender loss payee, as
required by this Lease, no later than thirty (30) days prior to the expiration
of any insurance required hereby;
(f) Lessee appoints Lessor its attorney-in-fact to apply any insurance
proceeds received with respect to the Equipment.
19. ADDITIONAL DOCUMENTS.
(a) If Lessor shall so request, Lessee shall execute and deliver to
Lessor such documents, including UCC financing and continuation statements, as
Lessor shall deem necessary or desirable for purposes of continuing this Lease
or recording or filing to protect the interest of Lessor in the Equipment. Any
such filing or recording shall not be deemed evidence of any intent to create a
security interest. All filing fees and expenses shall be borne by Lessee.
(b) If Lessee shall so request, Lessor shall execute and deliver to
Lessee any and all documents, including financial statements and corporate
structure disclosure, as required by the Lottery Commission or other
governmental authority.
20. FURNISHING FINANCIAL INFORMATION. During the term of this Lease and any
extensions or renewals hereof, Lessee will furnish to Lessor:
(a) As soon as practicable following filing with the U.S. Securities
and Exchange Commission (the "SEC") of the Guarantor's required quarterly
reports (including any valid extension of the due date for such reports), the
Lessee shall provide to Lessor a balance sheet, statement of cash flows and a
statement of income of Lessee ("FINANCIAL STATEMENTS") as of the close of each
of the first three quarterly period from the beginning of the fiscal year to the
date of such statement, prepared in accordance with generally accepted
accounting principles, consistently applied, and in such reasonable detail as
Lessor may request, certified as true, complete and correct by an authorized
officer of Lessee.
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(b) As soon as practicable following filing with the SEC of the
Guarantor's required annual report, (including any valid extension of the due
date for such report) the Lessee shall provide to the Lessor a copy of its
annual audited Financial Statements certified without qualification by an
independent certified public accountant of recognized standing.
(c) In a timely manner such financial statements, reports and other
information as Lessee shall send from time to time to its stockholders and/or
file with the Securities and Exchange Commission and/or other materials which
Lessor shall reasonably request to the extent that such information is not
contained in the reports provided pursuant to subparagraphs (a) and (b) of this
paragraph 20.
21. DISCLAIMER OF INTEREST IN PROCEEDS OF EQUIPMENT. Notwithstanding any
provision to the contrary in this Lease or the Leasing Documents, the Lessor
hereby disclaims any right or interest in the earnings, revenues, cash and/or
other proceeds generated from the Equipment or other such interest derived from
or by the Equipment.
22. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. If Lessee fails to promptly
perform any of its obligations under this Lease, Lessor may perform the same for
the account of Lessee without waiving Lessee's failure as a default. All sums
paid or expense or liability incurred by Lessor in such performance (including
reasonable legal fees) together with interest thereon at the highest contract
rate enforceable against Lessee, but never at a higher rate than fifteen percent
(15%) per annum simple interest, shall be payable by Lessee upon demand as
additional rent.
23. EVENTS OF DEFAULT.
(a) LESSEE'S EVENTS OF DEFAULT. Any of the following events or
conditions shall constitute an event of default ("EVENT OF DEFAULT") hereunder
and entitle Lessor, at its option, to avail itself of the remedies more fully
set forth in paragraph 24 hereof:
(i) Non-payment by Lessee of any Rent or other amount provided
for in this Lease which continues for a period of ten (10) days following the
date when due;
(ii) Lessee shall (i) fail to perform any covenant or
requirement relating to insurance or environmental matters, (ii) fail to keep
the Equipment free and clear of any claims, levies, liens and encumbrances;
(iii) fail to prevent the Equipment from being subjected to a foreclosure or
forfeiture proceeding, execution or attachment; or (iv) terminate the Lease or
any Schedule prior to the last day of the term.
(iii) Death or judicial declaration of incompetency of Lessee,
if an individual, or death or judicial declaration of incompetency of an
individual partner or member, if Lessee is a partnership or limited liability
company;
(iv) The filing by or against Lessee of any proceeding in
bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship, or similar proceeding (and in the case of any such proceeding
instituted against Lessee, such proceeding is not dismissed or stayed within 30
days of the commencement thereof, provided that Lessor shall not be obligated to
advance additional funds during such period);
(v) Lessee shall make an assignment for the benefit of
creditors, or any levy, garnishment, attachment or similar proceeding is
instituted against any property of Lessee held by or deposited with Lessor;
(vi) A final judgment for the payment of money in excess of
$500,000 is rendered against Lessee, or any attachment proceedings are
instituted with respect to any significant portion of Lessee's assets or
property, which is not covered by applicable insurance and the same shall remain
undischarged for a period of thirty (30) days during which execution shall not
be effectively stayed;
(vii) Lessee, or any affiliate of Lessee, shall default in the
payment of principal and/or interest when due (whether by acceleration or
otherwise) or shall default in the performance of any obligation or indebtedness
owed to the Bank or to any subsidiary or affiliate of the Bank (whether directly
as a lender to Lessee or as one lender in a bank syndicate agreeing to lend to
Lessee or Lessee's affiliate, or as holder of a participation in a loan by
another lender to Lessee or Lessee's affiliate), which obligation shall remain
in default for lack of performance or which indebtedness shall remain unpaid and
unsatisfied following the conclusion of any applicable grace period in respect
to such obligation or indebtedness;
(viii) Lessee, or any affiliate of Lessee, shall default in
the payment of principal and/or interest when due (whether by acceleration or
otherwise) or shall default in the performance of any obligation or indebtedness
owed to Wells Fargo Bank, N.A., its assignees and assigns, or to any subsidiary
or affiliate of Wells Fargo Bank N.A. arising under or pursuant to the Lessee's
credit facility with Wells Fargo Bank, N.A. which obligation shall be in excess
of $500,000;
(ix) Lessee shall make or permit any material change in the
nature of its business as carried on as of the date hereof in the composition of
the majority of its officers or the majority of its Board of Directors, or in
its equity ownership;
(x) Any event described in subparagraphs (c) through (h)
hereof shall occur with respect to the Guarantor or any other party liable for
payment or performance of this Lease;
(xi) Any certificate, statement, representation, warranty or
financial statement furnished pursuant to or in connection with this Lease by or
on behalf of Lessee or the Guarantor or other party liable for payment or
performance of this Lease is false in any material respect at the time as of
which the facts therein set forth were stated or certified, or omits any
substantial contingent or unliquidated liability or claim against Lessee or any
such guarantor or other party, or, upon the date of execution of this document
or any Schedule, there shall have been any materially adverse change in any of
the facts disclosed by any such certificate, statement, representation or
warranty, which shall not have been disclosed in writing to Lessor at or prior
to the time of execution of this document or such Schedule;
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(xii) An event of default shall have occurred under any other
lease agreement wherein Lessor is, at the time of such default, the "lessor" and
Lessee is the "lessee"; and
(xiii) Lessee shall fail to perform any non-monetary covenant,
obligation, term or condition of this Lease not described in this Paragraph 23
which failure continues for a period of thirty (30) days following the earlier
of the date when Lessee becomes aware of such failure or the date of written
notice thereof to Lessee by Lessor.
(b) LESSOR'S EVENTS OF DEFAULT. Any of the following events or
conditions shall constitute an event of default ("EVENT OF DEFAULT") hereunder
and entitle Lessee, at its option, to avail itself of the remedies more fully
set forth in paragraph 24 hereof:
(i) Lessor's failure to fund pursuant to the provisions of the
Proposal;
(ii) Lessor's failure to comply with the requirements of the
Lottery Commission and Nevada gaming authorities under applicable law, including
the providing of financial information and other disclosures as set forth in
paragraph 19(b) hereof; and
(iii) Lessor's being found by any state gaming or lottery
authority acting under applicable law to be unsuitable as a lender.
24. REMEDIES. Upon the occurrence of any Event of Default hereunder, the rights
and duties of the parties shall be as set forth in this paragraph.
(a) LESSOR'S REMEDIES. Lessor may elect, in its sole discretion, to do
one or more of the following upon the occurrence of an Event of Default, and at
any time thereafter:
(i) Upon written notice to Lessee terminate this Lease as to
any or all of the Schedules then in effect;
(ii) Subject to compliance with West Virginia law applicable
to gaming equipment, demand that Lessee return the Equipment to Lessor whereupon
Lessee shall promptly deliver the Equipment to Lessor to the place or places
designated by Lessor. If Lessee does not so deliver the Equipment, Lessee shall
make the Equipment available for retaking and authorizes Lessor, its employees
and agents to enter Lessee's premises and any other premises (insofar as Lessee
can permit) for the purpose of retaking. In the event of retaking, except to the
extent that such injuries are caused by the gross negligence or willful
misconduct of the Lessor. Lessee expressly waives all rights to possession and
all claims for injuries to persons or property suffered through or loss caused
by retaking. Any repossession accomplished under this paragraph 24(a) shall not
release Lessee from liability for damages of Lessor sustained by reason of
Lessee's default hereunder.
(iii) Lessor may revoke Lessee's privilege of paying Rent in
installments causing acceleration of all remaining Rents through the remaining
term of the Lease, and, upon Lessor's demand, as liquidated damages, and not as
a penalty, Lessee shall promptly pay to Lessor the aggregate of
(1) all Rent accrued and unpaid prior to the date of
such Event of Default,
(2) all future Rent due through the end of the basic
term or through the end of the current renewal term, as the case may be,
(3) all costs and expenses incurred by Lessor in the
repossession, recovery, storage, repair, inspection, appraisal, refurbishing,
sale, release or other disposition of the Equipment,
(4) reasonable attorney's fees and costs, including
any fees or costs incurred by Lessor in defending any action relating to this
Lease or participating in any bankruptcy or insolvency proceeding to which
Lessee is a party, or otherwise incurred due to Lessee's default,
(5) the estimated residual value of the Equipment as
of the end of the current term of the Lease, and
(6) any claim for indemnity, if any, in favor of
Lessor hereunder. The calculation of damages hereunder as a result of a default
by Lessee with regard to sums payable in the future under the Lease must be
discounted to present value; the discount rate to be applied shall equal the
discount rate of the Federal Reserve Bank of Cleveland then in effect on the
earlier of the date of entry of judgment on such claim or the date of payment of
such sum by Lessee.
(iv) In its sole discretion and subject to West Virginia law
applicable to gaming equipment, Lessor may sell or release the Equipment or any
part thereof, at public auction or by private sale or lease at such time or
times and upon such terms as Lessor may determine, free and clear of any rights
of Lessee and, if notice thereof is required by law, any notice in writing of
such sale or lease by Lessor to Lessee given not less than ten (10) days prior
to the date thereof shall constitute reasonable notice thereof to Lessee. All
proceeds of the sale or releasing, or both, less
(1) all expenses incurred in retaking the Equipment,
making necessary repairs to the Equipment and enforcing this Lease,
(2) all damages that Lessor shall have sustained by
reason of Lessee's default, and
(3) reasonable attorney's fees and expenses shall be
credited against Lessee's liability hereunder as and when received by Lessor.
Sums in excess of Lessee's liability shall belong to Lessor. Lessee shall be
liable for any deficiency.
(v) The provisions of this paragraph 24 shall not prejudice
Lessor's right to recover or prove damages for unpaid Rent accrued prior to
default, or bar an action for a deficiency as herein provided, and the bringing
of an action with an entry of judgment against Lessee shall not bar Lessor's
right to repossess any or all of the Equipment.
(vi) Lessor's remedies shall be available to Lessor's
successors and assigns, shall be in addition to all other remedies provided to
it under the UCC (specifically, the remedies set forth in West Virginia Statutes
46-2A-523(a), (b) and (c) or by any other applicable law, and may be exercised
concurrently or consecutively.
(b) LESSEE'S REMEDIES. Lessee may elect, in its sole discretion, to
terminate the Lease as to all but not less than all of the Equipment and pay all
sums due and owing pursuant to the Lease and applicable law, provided that, in
no event shall Lessee be obligated
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to pay a prepayment fee or similar charge. Thereupon, Lessor shall promptly
transfer title to the Equipment to the Lessee. Lessee's remedies shall be
available to Lessee's successors and permitted assigns, including the Guarantor,
and shall be in addition to all other remedies provided to it under the UCC or
applicable law and may be exercised consecutively or concurrently. The
calculation of sums payable in the future under this subparagraph must be
discounted to present value, the discount rate to be applied shall equal the
discount rate of the Federal Reserve Bank of Cleveland then in effect on the
earlier of the date of entry of judgment on such claim or the date of payment of
such sum by Lessor.
(C) EACH OF LESSEE AND LESSOR WAIVES ANY RIGHT TO DEMAND A JURY TRIAL
WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY LESSOR OR LESSEE IN
CONNECTION WITH THIS LEASE OR ANY TRANSACTION RELATED HERETO. LESSEE AND LESSOR
ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. Each of Lessor
and Lessee acknowledges that it has read and understood all the provisions of
this Lease, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
25. LESSEE REPRESENTATIONS AND WARRANTIES. In order to induce Lessor to enter
into this Lease and to lease the Equipment to Lessee, Lessee represents and
warrants, as of the date hereof, and as of the date of execution of each
Schedule hereunder, that:
(a) Lessee is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full power and
authority to conduct its business as such business is presently being conducted,
to own or hold property under lease and to enter into and perform its
obligations under this Lease. Lessee is duly qualified to do business and is in
good standing as a foreign entity in all states where its failure to so qualify
would have a material adverse effect on its ability to perform its obligations
under this Lease.
(b) Subject to the approval of the Lottery Commission pursuant to West
Virginia Code 29-22A-7(a)(5), Lessee has full power and authority to enter into
the transactions provided for in this Lease and has been duly authorized to do
so by all necessary and appropriate action and, when executed and delivered by
Lessee, this Lease will constitute the legal, valid and binding obligations of
Lessee, enforceable in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application relating to or affecting the enforcement of creditors' rights and
the exercise of judicial discretion in accordance with general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(c) The execution, delivery, and performance by Lessee of this Lease
and all related instruments and the consummation by Lessee of the transactions
contemplated hereby: (i) do not require any stockholder approval or the consent
of any trustee or holder of any indebtedness or obligation of Lessee or any
consent, authorization, or approval of, any filing of or registration with, or
other action in respect to any federal, state, governmental authority or agency
(or, if so required, such approval or consent has been obtained), (ii) do not
and will not result in any material violation of any term of any agreement,
instrument, judgment, decree, franchise, permit, order, law, statute, rule, or
governmental regulation presently applicable to it, (iv) are not in conflict
with and do not constitute a default under any of the terms or provisions of, or
subject the leased Equipment or any part thereof to any lien of, any indenture,
mortgage, lease, contract, or other agreement or instrument (other than this
Lease) to which Lessee is a party or by which it or its property is bound or
affected, and (v) do not and will not contravene Lessee's articles of
incorporation and by-laws.
(d) There are no pending actions or proceedings to which Lessee is a
party, and there are no other pending or threatened actions or proceedings of
which Lessee has knowledge, before any court, arbitrator, or administrative
agency, which would materially adversely affect the financial condition of
Lessee or the ability of Lessee to perform its obligation hereunder. Further,
Lessee is not in default under any material obligations for the payment of
borrowed money, for the deferred purchase price of property or for the payment
of any Rent which would have the same such effect.
(e) Under the laws of West Virginia, the Equipment consists solely of
personal property.
(f) Lessee's financial statements (copies of which have been furnished
or will be furnished to Lessor pursuant to paragraph 20) have been prepared in
accordance with generally accepted accounting principles consistently applied,
and accurately and completely present Lessee's financial condition and the
results of its operations as of the date of and for the period covered by such
statements, and since the date of such statements there has been no material
adverse change in such conditions or operations.
(g) The address stated on page one of this Lease is the chief place of
business and chief executive office of Lessee; and Lessee does not conduct
business under a trade, assumed, or fictitious name.
(h) Lessee has reviewed the areas within its business and operations
which could be adversely affected by, and has developed or is developing a
program to address on a timely basis the risk that certain computer applications
used by Lessee may be unable to recognize and properly perform date-sensitive
functions involving dates prior to and after December 31, 1999 (the "YEAR 2000
PROBLEM"). The Year 2000 Problem will not result, and is not reasonably expected
to result, in any material adverse effect on the business, properties, assets,
financial condition, results of operations or prospects of Lessee, or the
ability of Lessee to duly and punctually pay or perform its obligations
hereunder and under the related documents.
26. LESSOR'S REPRESENTATIONS AND WARRANTIES. Lessor represents and warrants to
Lessee, as of the date hereof and as of the date of execution of each such
Schedule hereunder, that:
(a) The making of this Lease and any Leasing Document executed by
Lessor is duly authorized on the part of Lessor and that, upon due execution
thereof by Lessor and Lessee, they shall constitute valid obligations binding
upon and enforceable against Lessor in accordance with their terms; and
8
(b) Neither the making of this Lease or any Leasing Document, nor the
due performance by Lessor, shall result in any breach of or constitute a default
under or violation of Lessor's articles of incorporation, by-laws, or any
agreement to which Lessor is a party or by which Lessor is bound.
27. COMPLIANCE WITH GOVERNMENTAL AUTHORITIES. Notwithstanding any provision of
this Lease or the Leasing Documents to the contrary, each of Lessee and Lessor
acknowledges that the terms of this Lease and the Leasing Documents, including
all rights and obligations thereunder, become effective upon approval of the
Lottery Commission in accordance with the requirements of West Virginia Statutes
29-22A-7(a)(5) or execution of the Leasing Documents by the parties hereto,
whichever is later. If such approval is not obtained by January 31, 2000, or
upon the disapproval of the Lottery Commission prior to such date, this Lease
and the Leasing Documents and all rights and obligations thereunder shall be
null and void without penalty to either the Lessor or the Lessee. All services
furnished hereunder shall comply with the requirements of all governmental
authorities under applicable law. Each of Lessee and Lessor agrees to comply
with all requirements of governmental authorities having jurisdiction over the
Lease, the Leasing Documents, the Lessor or the Lessee.
28. FINANCE LEASE.
(a) ACKNOWLEDGMENT. The Lease is intended as a "Finance Lease" as that
term is defined in Section 2A103 of the UCC. Lessee acknowledges that Lessor has
not selected, manufactured or supplied the Equipment; that Lessor has acquired
the Equipment at the direction of Lessee and solely for the purpose of leasing
the Equipment to Lessee; and that (i) Lessee has selected the supplier or vendor
of the Equipment, (ii) as provided in paragraph 9, Lessee is entitled to
directly enforce against the supplier or vendor of the Equipment, any and all
warranties and promises made to Lessor by the supplier or vendor, and (iii)
Lessee may communicate directly with the vendor or supplier to obtain a complete
and accurate statement of all such warranties or promises, including any
disclaimers or limitations thereof.
(b) WAIVER OF CERTAIN OF LESSEE'S REMEDIES. In recognition that this is
a Finance Lease and that Lessor has not sold, selected or delivered the
Equipment to Lessee and has made no warranties or representations in respect
thereto, to the extent permitted by applicable law, Lessee, for itself and for
its successors and assigns, hereby waives any and all rights or remedies
afforded a lessee by Sections 2A508 through 2A522 inclusive, of the UCC,
including, without limitation, Lessee's right to (i) cancel, terminate or
repudiate this Lease or any Schedules hereto; (ii) reject or revoke acceptance
of the Equipment; (iii) recover damages from Lessor for any breach of warranty
or representation in respect to the Equipment; (iv) assert any security interest
in the Equipment in Lessee's possession or control; (v) deduct, recoup or offset
of any claimed damages due to Lessor's default; (vi) accept partial delivery of
the Equipment or to "cover" by purchasing or leasing replacement equipment;
(vii) recover any general, incidental or consequential damages (including
without limitation, expenses and commissions in connection with the inspection,
receipt, caring for, storing, repair or disposal of any Equipment; or (viii)
assert a claim by way of replevin, detinue, sequestration, claim, delivery, or
the like, for any Equipment.
29. GOVERNING LAW AND CONSENT OF JURISDICTION.
(a) This Lease has been delivered and accepted and will be deemed to be
made in the State of West Virginia.
(b) EACH OF THE LESSOR AND THE LESSEE HEREBY AGREES THAT THIS LEASE AND
ALL AGREEMENTS, INSTRUMENTS AND DOCUMENTS HERETOFORE, NOW OR HEREAFTER EXECUTED
AND DELIVERED TO EITHER THE LESSOR OR THE LESSEE, AS THE CASE MAY BE, RELATING
TO THIS LEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF WEST VIRGINIA, EXCLUDING ITS CONFLICT OF LAWS RULES.
(c) Lessee hereby irrevocably consents to the exclusive jurisdiction of
any state or federal court in Allegheny County, Pennsylvania; provided that
nothing contained in this Lease will prevent Lessor from bringing any action,
enforcing any award or judgment or exercising any rights against Lessee
individually, against any security or against any of Lessee's property within
any other county, state or other foreign or domestic jurisdiction.
(d) Each of the Lessor and the Lessee agrees that, in addition to any
other manner of service prescribed by law or rule of court, a summons and
complaint commencing an action or proceeding in either such Court shall be
properly served upon the Lessor or the Lessee, as the case may be, and shall
confer personal jurisdiction if served personally or by United States registered
mail, return receipt requested, to the Lessor or the Lessee, as the case may be,
at the address indicated on the first page of the Lease. Lessor and Lessee agree
that the venue provided above is the most convenient forum for both parties.
Lessee waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Lease.
30. NOTICES.
(a) Except as otherwise provided in paragraph 29 above, all notices,
demands, requests, consents, approvals and other communications required or
permitted hereunder must be in writing and will be effective upon receipt. Such
notices and other communications may be hand-delivered, sent by facsimile
transmission with confirmation of delivery and a copy sent by first-class mail,
or sent by nationally recognized overnight courier service, to a party's address
set forth above or to such other address as any party may give to the other in
writing for such purpose with a copy to their respective counsel as follows:
LESSEE'S COUNSEL: Ruben & Aronson, LLP
3299 K Street
9
Washington, D.C. 20007
ATTENTION: Robert L. Ruben
Facsimile: (202) 965-3700
LESSOR'S COUNSEL: Tucker Arensberg, P.C.
1500 One PPG Place
Pittsburgh, PA 15222
ATTENTION: Terry J. Himes
Facsimile: (412) 594-5573
(b) Notwithstanding any provision in this Lease to the contrary, and as
set forth in the Guaranty, Guarantor shall be given ten (10) days after receipt
of written notice from Lessor of a default by Lessee to cure such default.
(c) Notwithstanding any provision in this Lease to the contrary, at the
same time as the Guarantor is given notice pursuant to subparagraph (b) hereof,
Lessor shall give written notice of a default by Lessee to the Lottery
Commission at 312 MacCorkle Avenue, S.E., Charleston, West Virginia, 25314.
Lessor shall also provide prompt notice to the Lottery Commission of Guarantor's
cure of or failure to cure such default, as the case may be.
31. MISCELLANEOUS.
(a) Whenever the context of this Lease requires, the neuter gender
includes the masculine and feminine, and the singular number includes the
plural. Whenever the word Lessor is used herein, it shall include all assignees
of Lessor. If this Lease is executed by more than one party as Lessee, the
obligations of such persons or entities will be joint and several.
(b) References to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications to such
instruments, but only to the extent such amendments and other modifications are
not prohibited by the terms of this Lease. Section headings in this Lease are
included for convenience of reference only and shall not constitute a part of
this Lease for any other purpose. Unless otherwise specified in this Lease, all
accounting terms shall be interpreted and all accounting determinations shall be
made in accordance with GAAP.
(c) Time is of the essence in the performance of this Lease and each
and all of its provisions.
(d) If any provision of this Lease is held invalid or unenforceable,
the remaining provisions will not be affected thereby, and to this end, the
provisions of this Lease are declared severable.
(e) As used herein "Lessee," if there be more than one, shall mean all
Lessees, or each of them, and in such case they are jointly and severally bound.
(f) If there is any conflict between the terms of any Schedule and any
other Leasing Document, the terms of the Schedule shall control.
(g) Except as set forth in subparagraph (f) hereof, if there is any
conflict between the terms of any Supplement and any other Leasing Document, the
terms of the Supplement shall control, except as to additional fundings by
Lessor to Lessee, in which case the terms of the Proposal will control.
(h) The Leasing Documents executed by Lessor and/or Lessee constitute
the entire agreement between Lessor and Lessee with respect to the Equipment and
the subject matter of this Lease and supersede all other prior agreements and
understandings whether oral or written between the parties with respect to the
subject matter hereof. This Lease may not be changed, waived, amended or
terminated except by a written agreement signed by both Lessor and Lessee,
except that Lessor may insert on the appropriate Schedule the serial numbers of
the Equipment after delivery thereof. No express or implied waiver by Lessor of
any Event of Default hereunder shall in any way be, or be construed to be, a
waiver of any future and/or subsequent Event of Default whether similar in kind
or otherwise but shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on Lessee in any case will
entitle Lessee to any other or further notice or demand in the same, similar or
other circumstance.
32. SECURITY INTEREST. If the Lease is deemed at any time to be a lease intended
as security, Lessee hereby grants to Lessor a security interest in the Equipment
to secure all sums due hereunder, as well as any other obligations or sums due
by Lessee to Lessor, whether now existing or hereafter contracted for or
hereafter arising.
33. COUNTERPARTS. This Lease may be signed in any number of counterpart copies
and by the parties hereto on separate counterparts, but all such copies shall
constitute one and the same instrument. Delivery of an executed counterpart of a
signature page to this Lease by facsimile transmission shall be effective as
delivery of a manually executed counterpart. Any party executing this Lease by
facsimile transmission shall promptly deliver a manually executed counterpart,
provided that any failure to do so shall not affect the validity of the
counterpart executed by facsimile transmission.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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WITNESS the due execution hereof with the intent to be legally bound.
WITNESS/ATTEST: MOUNTAINEER PARK, INC., LESSEE
By: /s/ Lisa D. Swann/Robert L. Ruben By: /s/ Edson R. Arneault (SEAL)
---------------------------------- -----------------------------------
Name: Lisa D. Swann/Robert L. Ruben Name: Edson R. Arneault
-------------------------------- ---------------------------------
Title: /Assistant Secretary Title: President
------------------------------- --------------------------------
Federal Tax I.D. # 84-1103135
Accepted at Pittsburgh,
Pennsylvania by:
PNC LEASING, LLC, LESSOR
By: /s/ Michael J. Woodring SEAL)
-----------------------------------
Name: Michael J. Woodring
---------------------------------
Title: VP
-------------------------------
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