EXHIBIT 10.1
“RCT” means the
material omitted has been filed separately with the Securities and
Exchange Commission with an application requesting confidential
treatment.
TWENTY-SECOND AMENDMENT
TO
LEASE AND SUBLEASE
AGREEMENT
THIS TWENTY-SECOND AMENDMENT TO
LEASE AND SUBLEASE AGREEMENT (“Twenty-Second Amendment”) is made
and entered effective the 30th day of June, 2009, by and between
SMITH’S FOOD & DRUG CENTERS, INC ., an Ohio
corporation qualified to do business in Nevada (hereinafter called
“ Smith’s ”) and HERBST GAMING, INC
. a Nevada corporation, and MARKET GAMING, INC. , a Nevada
corporation (hereinafter collectively called “ Herbst
”), successor to ANCHOR COIN , a licensed slot route
operator in the State of Nevada (hereinafter called “
Anchor ”).
WITNESSETH:
WHEREAS , Smith’s and Anchor entered into that
certain Lease and Sublease Agreement dated July 28, 1993,
whereby Smith’s leases or subleases space to Anchor within
those certain properties listed on
Exhibit “A” to the Agreement and identified
as either “Leased Properties” or “Owned
Properties,” for the operation of certain gaming devises,
which Agreement was amended by that certain First Amendment to
Lease and Sublease Agreement dated June 30, 1994; that certain
Second Amendment to Lease and Sublease Agreement dated
January 25, 1995; that certain Third Amendment to Lease and
Sublease Agreement dated March 28, 1995; that certain Fourth
Amendment to Lease and Sublease Agreement dated February 27,
1996; that certain Fifth Amendment to Lease and Sublease Agreement
dated April 26, 1996; that certain Sixth Amendment to Lease
and Sublease Agreement dated November 13, 1996; that certain
Seventh Amendment to Lease and Sublease Agreement dated
February 21, 1997; that certain Eighth Amendment to Lease and
Sublease Agreement dated December 19, 1997; that certain Ninth
Amendment to Lease and Sublease Agreement dated August 4,
1998; that certain Tenth Amendment to Lease and Sublease Agreement
dated September 28, 1998; that certain Eleventh Amendment to
Lease and Sublease Agreement dated May 3, 1999; that certain
Twelfth Amendment to Lease and Sublease Agreement dated
March 29, 2000: that certain Thirteenth Amendment to Lease and
Sublease Agreement dated January 12, 2001; that certain First
Affiliate Amendment to Lease and Sublease Agreement dated
August 23, 2002; that certain Fourteenth Amendment to Lease
and Sublease Agreement dated October 9, 2002; that certain
Fifteenth Amendment to Lease and Sublease Agreement dated
August 29, 2003; that certain Sixteenth Amendment to Lease and
Sublease Agreement dated December 2, 2003; that certain
Seventeenth Amendment to Lease and Sublease Agreement dated
March 12, 2004; that certain Eighteenth Amendment to Lease and
Sublease Agreement dated October 5, 2004; that certain
Nineteenth Amendment to Lease and Sublease Agreement dated
April 6, 2005; that certain Twentieth Amendment to Lease and
Sublease Agreement dated October 17, 2005; and that certain
Twenty-First Amendment to Lease and Sublease Agreement dated
July 25, 2006 (collectively, the “Agreement”);
and
WHEREAS , Anchor assigned all of its rights, title, and
interest in the Agreement to Herbst by the certain Asset Purchase
Agreement dated November 11, 2002; and
WHEREAS , Smith’s and Herbst now desire to further
amend the Agreement as more fully set forth hereinafter and for
Herbst to assume the Agreement as provided for in 11 U.S.C 365 (the
“Bankruptcy Code”);
NOW , THEREFORE , in consideration of the
mutual covenants and agreements contained herein, Smith’s and
Herbst hereby agree as follows:
1.
Term . Notwithstanding anything contained in
the Agreement, the Term of the Agreement is hereby extended to and
including RCT.
2.
Rent . Herbst agrees to pay Smith’s as
monthly rental for the use and occupancy of each of the
Supermarkets and the exclusive right to operate Gaming Devices in
each of the Supermarkets listed, for each of the Lease Months
(“Lease Months”) the rental specified opposite such
Supermarket on Exhibit “A” attached hereto and
incorporated herein by reference (the
“Rent”).
Commencing January 1, 2011, and
each calendar year thereafter, the Rent paid by Herbst to
Smith’s shall be RCT for all stores listed on Exhibit A
RCT. In no event shall Rent be decreased for any store.
Thus, for example, if RCT for all stores in 2010 is RCT, then,
beginning January 1, 2011, the Rent for each store shall be
RCT. Conversely, if RCT in 2010 is RCT, then Rent will not be
adjusted. The term “RCT” shall mean
RCT.
In order to determine RCT, Herbst
will provide to RCT approved by Smith’s a detailed listing of
RCT. Any new Supermarkets opened during a year will not be included
in this listing for purposes of determining RCT for that year, but
they shall be included for each full calendar year they are in
operation. Herbst shall also provide to RCT a detailed
listing of RCT, which shows RCT for all Supermarkets for RCT and
RCT for all Supermarkets RCT.
