U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly period ended March 31, 2000
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________________ to ______________
Commission file number: 000-29443
VIVA GAMING & RESORTS INC.
(Exact name of small business issuer as specified in its charter)
FLORIDA 65-0873132
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3753 Howard Hughes Parkway, Suite 200, Las Vegas Nevada 89109
(Address of principal executive offices) (Zip Code)
Issuer's Telephone Number (702) 262-6477
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES [ ] NO [ X ]
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date: 7,157,400 as of April 19,
2000.
<PAGE>
VIVA GAMING & RESORTS INC.
Form 10-QSB for the quarter ended March 31, 1999
TABLE OF CONTENTS AND INFORMATION REQUIRED IN REPORT
<TABLE>
Page
<S> <C>
PART I Financial Information
Item 1. Financial Statements (unaudited):
Condensed and Consolidated:
Balance Sheet as of March 31, 2000 3
Statements of Operations for the three months ended March 31,
2000 and March 31, 1999 and for the period
from December 9, 1997 (inception) to March 31, 2000 4
Statements of Stockholders' Equity for the period
from December 9, 1997 (inception) to March 31, 2000 5
Statements of Cash Flows for the three months ended March 31,
2000 and March 31, 1999 and for the period
from December 9, 1997 (inception) to March 31, 2000 6
Notes to Condensed and Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis or Plan of
Operation 9
PART II Other Information
Item 1. Legal Proceedings 11
Item 2 Changes in Securities and Use of Proceeds 11
Item 3 Defaults Upon Senior Securities 12
Item 4 Submission of Matters to a Vote of Security Holders 12
Item 5 Other Information 12
Item 6 Exhibits and Reports on Form 8-K 12
SIGNATURES 13
</TABLE>
2
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Condensed and Consolidated Balance Sheet
(Unaudited)
March 31, 2000
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
Assets
Current assets
Cash $ 837,736
Prepaid expenses 175,000
Other current assets 13,661
- --------------------------------------------------------------------------------
Total current assets 1,026,397
Property and equipment, net 14,499
- --------------------------------------------------------------------------------
$ 1,040,896
- --------------------------------------------------------------------------------
Liabilities and Stockholders' Equity
Current liabilities
Accounts payable and accrued liabilities $ 69,467
Advances from stockholders and officers 145,969
- --------------------------------------------------------------------------------
Total current liabilities 215,436
Stockholders' equity
Share capital
Authorized
10,000,000 preferred shares with $0.10 par value
100,000,000 common shares with $0.001 par value
Issued
6,934,400 common shares 6,934
Common stock to be issued 825,000
Additional paid-in capital 1,621,016
Deficit accumulated during the development stage (1,627,490)
- --------------------------------------------------------------------------------
825,460
- --------------------------------------------------------------------------------
$ 1,040,896
- --------------------------------------------------------------------------------
</TABLE>
The Accompanying Notes are an Integral
Part of These Financial Statements
3
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Condensed and Consolidated Statements of Operations
(Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Period from
December
Three Months Ended 9, 1997
March 31, (inception)
--------------------------- to March
2000 1999 31, 2000
<S> <C> <C> <C>
Revenue $ -- $ -- $ --
Operating Expenses
Consultants 110,826 -- 288,169
Depreciation 568 -- 1,126
Interest -- -- 1,153
Legal and accounting 48,584 2,652 74,273
Office and administration 59,519 119 205,881
Payroll and related costs 50,557 -- 198,375
Regulatory, transfer and fees 4,468 1,267 22,784
Stock based compensation -- -- 675,450
Travel, entertainment and promotion 64,216 1,232 169,025
- ------------------------------------------------------------------------------------------------------------------------------------
338,738 5,270 1,636,236
- ------------------------------------------------------------------------------------------------------------------------------------
(Loss) from operations (338,738) (5,270) (1,636,236)
Other income (expenses)
Foreign exchange 4,356 962 3,014
Interest -- 1,664 5,732
- ------------------------------------------------------------------------------------------------------------------------------------
4,356 2,626 8,746
- ------------------------------------------------------------------------------------------------------------------------------------
Net (loss) $ (334,382) $ (2,644) $(1,627,490)
- ------------------------------------------------------------------------------------------------------------------------------------
Net (loss) per share - Basic and Diluted $ (0.05) $ -- $ (0.29)
- ------------------------------------------------------------------------------------------------------------------------------------
Weighted average shares
of common stock outstanding 6,856,800 5,216,667 5,611,951
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Accompanying Notes are an Integral
Part of These Financial Statements
4
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Condensed and Consolidated Statements of Stockholders' Equity
(Unaudited)
<TABLE>
<CAPTION>
Deficit
Common Unearned Additional Accumulated During
Common Stock Stock to be Consulting Paid-in the Development
Shares Amount Issued Fees Capital Stage
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Initial capitalization
June 30, 1998 for cash 3,750,000 $ 3,750 $ $ $ 108,750 $
Net (loss) (189,710)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance as of
December 31, 1998 3,750,000 3,750 108,750 (189,710)
Shares issued for:
Settlement of
accounts payable 2,750,000 2,750 107,250
Consulting services 200,000 200 199,800
Consulting services 40,000 40 60,000 (60,000) 39,960
Stock options granted to
Non-employees for services 675,450
Net (loss) (1,103,398)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance as of
December 31, 1999 6,740,000 6,740 60,000 (60,000) 1,131,210 (1,293,108)
Shares issued for:
Private placement 120,000 120 499,880
Private placement fee 14,400 14 59,986
Consulting services 60,000 60 (60,000) 60,000 59,940
Private placement shares
to be issued 825,000
Private placement commissions (130,000)
Net (loss) (334,382)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance as of
March 31, 2000 6,934,400 $6,934 $ 825,000 $ $ 1,621,016 $ (1,627,490)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Accompanying Notes are an Integral
Part of These Financial Statements
5
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Condensed and Consolidated Statements of Cash Flows
(Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Period from
December
Three Months Ended 9, 1997
March 31, (inception)
-------------------- to March
2000 1999 31, 2000
<S> <C> <C> <C>
Cash provided by (used in) operating activities $ (269,284) $ 26 $ (659,882)
Cash flows from financing activities
Proceeds from the issuance of common stock 430,000 -- 542,500
Advances to stockholder -- -- (115,366)
Repayment from stockholder advance -- -- 115,366
Proceeds from note payable -- -- 112,500
Repayment of note payable -- -- (112,500)
Advances from stockholders and officers 70,228 -- 363,362
Repayment of stockholders and officers advances (217,620) -- (217,620)
Proceeds from common stock to be issued 825,000 -- 825,000
- ------------------------------------------------------------------------------------------------------------------------------------
Cash provided by financing activities 1,107,608 -- 1,513,242
- ------------------------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities
Acquisition of property and equipment (3,878) -- (15,624)
- ------------------------------------------------------------------------------------------------------------------------------------
Cash (used in) investing activities (3,878) -- (15,624)
- ------------------------------------------------------------------------------------------------------------------------------------
Increase in cash 834,446 26 837,736
Cash, beginning of period 3,290 -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Cash, end of period $ 837,736 $ 26 $ 837,736
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Accompanying Notes are an Integral
Part of These Financial Statements
6
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Notes to Condensed and Consolidated Financial Statements
(Unaudited)
- --------------------------------------------------------------------------------
NOTE 1: BASIS OF CONSOLIDATION
These financial statements include the accounts of Viva Gaming & Resorts
Inc. (the "Company") and its wholly owned limited liability company Corpus
Christi Day Cruises, LLC. All material intercompany transactions and
balances have been eliminated upon consolidation
NOTE 2: INTERIM FINANCIAL DATA
The accompanying unaudited condensed and consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and the instructions to form
10-QSB. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. All adjustments that, in the opinion of management,
are necessary for the fair presentation of the results of operations for
the interim periods have been made and are of a recurring nature unless
otherwise disclosed herein. The results of operations for the three month
period ended March 31, 2000 is not necessarily indicative of the results
that will be realized for a full year. For further information, refer to
the financial statements and notes thereto contained in the Company's
Registration Statement on Form 10-SB.
NOTE 3: LIMITED LIABILITY COMPANY FORMATION
Nature of Company
In March 2000, the Company formed Corpus Christi Day Cruises, LLC ("LLC")
in the state of Nevada. The LLC was formed to operate a day cruise that is
intended to entertain a minimum of 1,500 adult passengers daily. The
Company is currently the sole member of the LLC, however the Company
intends to obtain the financing the LLC requires to carry out its business
through the sale of an equity interest in the LLC. After such financing,
the Company may be a minority equity holder in the LLC.
Lease Agreement
In March 2000, the LLC entered into a five year lease agreement with the
Port of Corpus Christi that covers a six acre parcel of land located at
Harbor Island which is to be utilized in the business noted above.
NOTE 4: PRIVATE PLACEMENTS
During the period January to March 2000, the Company raised gross proceeds
of $500,000 from a private placement to offshore non-U.S. investors. In
connection with this private placement, the Company issued 120,000 shares
of common stock and 80,000 warrants to purchase additional shares of common
stock at $6.25 per share for a period of one year. The Company also issued
14,400 shares and 9,600 warrants as a fee for assistance in this private
placement. The private placement raised net proceeds of $430,000.
During the same period the Company raised additional gross proceeds of
$800,000 from the sale of a second private placement of units of the
Company to offshore non-U.S. investors and $25,000 from the exercise of
warrants issued under the first private placement.
7
<PAGE>
VIVA GAMING & RESORTS INC.
(A Development Stage Company)
Notes to Condensed and Consolidated Financial Statements
(Unaudited )
- --------------------------------------------------------------------------------
NOTE 5: SUBSEQUENT EVENTS
In April 2000, the Company received the balance of gross proceeds of
$50,000 from the second, private placement to offshore non-U.S. investors
and thereafter issued 204,000 shares of common stock and 136,000 warrants.
This private placement raised net proceeds of $748,000. The warrants issued
entitle the holder to purchase one share of common stock at $6.25 per share
for a period of one year. The Company also issued 15,000 shares of common
stock and 10,000 warrants for fees related to the private placement.
8
<PAGE>
The information contained in this quarterly report about us and our
business and operations contains "forward-looking statements." Such statements
consist of any statement other than a recitation of historical fact and can be
identified by the use of forward-looking terminology such as "may," "expect,"
"anticipate," "estimate" or "continue" or the negative thereof or other
variations thereon or comparable terminology. You are cautioned that all
forward-looking statements are necessarily speculative, and there are certain
risks and uncertainties that could cause actual events or results to differ
materially from those referred to in such forward looking statements. We do not
have a policy of updating or revising forward-looking statements and thus it
should not be assumed that silence by our management over time means that actual
events are bearing out as estimated in such forward looking statements.
ITEM 2 Management's Discussion and Analysis or Plan of Operations
The Company is in the business of acquiring or developing and managing
casino gaming operations that are either undervalued or evidence a high rate of
profitability, and providing consulting and managerial services relating to the
management and operation of such facilities.
Since our last year end we have undertaken the following to further the
successful implementation of our business model:
In February 2000 we engaged a consultant to represent us in gaining
access to Indian gaming operations in California. Since the recent approval of
Proposition 1A in California in March 2000, it is anticipated that approximately
50 Class III gaming facilities will be operational within the next several
years. We are seeking consulting or managerial agreements from operators of
these facilities, and we recently submitted multiple proposals, through our
consultant, for engagement for consulting services by established casinos in
Southern and Northern California. These proposals are currently under
consideration for approval by the tribal operators.
In March 2000, we organized a Nevada limited liability company to operate
a full-service Day Cruise to Nowhere gaming facility. We are currently the sole
member of the LLC. The LLC proposes to sell membership interests in the LLC to
fund the LLC's plans to operate the Cruise to Nowhere. While sale of membership
interests will likely reduce our equity ownership of the LLC to less than 50%,
we also expect to generate revenue from managerial services to be rendered. The
LLC has entered into a five-year lease with the Port of Corpus Christi, Texas,
to lease a six-acre parcel of property in Port Aransas that will serve to allow
passengers access to the Cruise to Nowhere. All gaming will take place at sea,
at least nine miles into international waters. The LLC is obligated to make
monthly lease payments commencing July 1, 2000, at an initial rent of $3,200 per
month. Until such time as the LLC obtains equity or debt financing, the Company
may, but is not obligated to, advance funds to the LLC to enable it to meet its
current obligations.
We have not yet engaged in any revenue-producing activities, nor are we a
party to any binding agreements that will generate revenues. However, we
continue to seek and evaluate various opportunities consistent with our business
model that we believe will, over time, allow us to become profitable and enhance
shareholder values. Due to our lack of revenue-production to date, and our lack
of contractual commitments to generate revenue, there is no basis at this time
for investors to make an informed determination as to the prospects for our
future success. For similar reasons, our auditors have included in their report
covering our financial statements for the years ended December 31, 1999 and
1998, that there is substantial doubt about our ability to continue as a going
concern.
9
<PAGE>
To date, we have funded our operations through a combination of borrowings
and the sale of our equity securities. In early 2000, we completed the sale of
units consisting of a total of 120,000 shares of stock and 80,000 warrants,
resulting in net proceeds to us of approximately $430,000. Thereafter, we
completed the further sale of units consisting of a total of 204,000 shares of
stock and 136,000 warrants, resulting in net proceeds to us of approximately
$748,000. We also received $25,000 in March 2000 for the exercise of warrants to
purchase 4,000 shares of common stock at $6.25 per share. The sale of these
shares was effected off-shore, pursuant to SEC rules, regulations and
interpretations, including Regulation S.
We are seeking to raise approximately $4.3 million through the sale of
membership interest(s) in the LLC to fund the LLC's plan of operations for the
Day Cruise to Nowhere. With funding, the LLC plans to complete its acquisition
of a vessel to house the operations and complete terminal development and
ancillary work. The budget for the project is $5.8 million. We have commenced
the LLC's plan of operation and are incurring expenses related thereto. The
LLC's business operations are expected to employ over 200 staff in Corpus
Christi when operational.
To implement our business plan, we will be required to seek additional
funding in the form of equity investments or shareholder loans to meet the
expected shortfall between expenses and expected revenue over the next 12 month
period. There is no assurance additional financing, as required, will be
available to us upon acceptable terms.
10
<PAGE>
PART II OTHER INFORMATION
ITEM 1. Legal Proceedings
None
ITEM 2. Changes in Securities and Use of Proceeds
Sales of Equity Securities Pursuant to Regulation S
In January 2000, we issued 20 units, each unit consisting of 6,000 shares
and warrants to purchase 4,000 shares, for an aggregate purchase price of
$500,000 or $25,000 per unit. Each warrant, which is not freely transferable,
entitles the owner to purchase one share, for a period of one year, at an
exercise price of $6.25. The units were sold to 16 non-U.S. persons. In
connection with this transaction, we also paid $70,000 and issued 14,400 shares
and 9,600 warrants to non-U.S. finders who assisted us in identifying the
purchasers of units. This was an "offshore" transaction, effected outside the
United States, to non-U.S. persons, and was either (a) not subject to the
registration provisions of Federal securities laws or (b) was exempt from the
registration requirements thereof pursuant to the provisions of Regulation S.
The purchasers had access to financial and other information about us and was
afforded the opportunity to ask questions of us concerning our operations and
the terms of the share issuance. Each purchaser represented that he was
acquiring the shares for investment purposes and the documentation evidencing
the transaction contained the disclosure required by Regulation S. The
certificates evidencing the shares that were issued in January, 2000 contained a
legend restricting their transferability absent registration under the
Securities Act or the availability of an applicable exemption from registration.
During February and March 2000, we sold 17 units, each of these unit
consisting of 12,000 shares and warrants to purchase 8,000 shares, for an
aggregate purchase price of $850,000 or $50,000 per unit. The units were sold to
14 non-U.S. persons. Each warrant, which is not freely transferable, entitles
the owner to purchase one share, for a period of one year, at an exercise price
of $6.25. In connection with this transaction, we also paid $102,000 and issued
15,000 shares and 10,000 warrants to a non-U.S. finder who assisted us in
identifying the purchasers of units. These sales of units were "offshore"
transactions, effected outside the United States, to non-U.S. persons, and was
not subject to the registration requirements thereof pursuant to the provisions
of Regulation S. The purchasers had access to financial and other information
about us and were afforded the opportunity to ask questions of us concerning our
operations and the terms of the investment. Each purchaser represented that he
was acquiring the shares for investment purposes and the documentation
evidencing the transaction contained the disclosure required by Regulation S.
The certificates evidencing these shares were issued in April, 2000 and
contained a legend restricting their transferability absent registration under
the Securities Act of 1933, as amended, or the availability of an applicable
exemption from registration.
During March 2000, we also received $25,000 in connection with the
exercise of 4,000 warrants. The certificates evidencing these shares were issued
in April, 2000 and contained a legend restricting their transferability absent
registration under the Securities Act of 1933, as amended, or the availability
of an applicable exemption from registration.
11
<PAGE>
ITEM 3. Defaults Upon Senior Securities
None
ITEM 4. Submissions of Matters to a Vote of Security Holders
None
ITEM 5. Other Information
None
ITEM 6. Exhibits and Reports on Form 8-K
(a) Index to Exhibits
Exhibits Description of Document
3.1 Articles of Organization for Corpus Christi Day Cruises, LLC.
10.1 Consulting Agreement with Chuck Campbell
10.2 Lease Agreement between Corpus Christi Day Cruises, LLC and the
Port of Corpus Christi Authority of Nueces County, Texas.
27 Financial Data Schedule
(b) Reports on 8-K.
No reports on form 8-K were filed during the quarter.
12
<PAGE>
SIGNATURES
In accordance with the Requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Viva Gaming & Resorts Inc.
(Registrant)
Date May 15, 00
-------------------------------------------------------------------
By /s/ Robert Sim
---------------------------------------------------------------------
(Robert Sim, Chairman of the Board)
Date May 15, 00
-------------------------------------------------------------------
By /s/ Martin Gross
--------------------------------------------------------------------
(Martin Gross, President and Chief Executive Officer)
ARTICLES OF ORGANIZATION
OF
CORPUS CHRISTI DAY CRUISES, LLC
These Articles of Organization are made for the purpose of organizing a
Nevada Limited Liability Company pursuant to Chapter 86 of the Nevada Revised
Statutes.
ARTICLE I
NAME
The name of this Limited Liability Company is CORPUS CHRISTI DAY
CRUISES, LLC (the "Company").
ARTICLE II
ADDRESS
The Company's mailing address and street address of the principal
office of the Company is 3753 Howard Hughes Parkway, Suite 200, Las Vegas, NV
89109.
ARTICLE III
DURATION
The period of duration for the Company shall be perpetual.
ARTICLE IV
REGISTERED AGENT AND OFFICE
The name of the initial Registered Agent of the Company is The
Corporation Trust Company of Nevada. The street address of the initial
Registered Agent of the Company is 6100 Neil Road, Suite 500, Reno, Nevada
89511.
ARTICLE V
MANAGEMENT
The Company shall be managed by Viva Gaming and Resorts, Inc. The
address of the Manager is 3753 Howard Hughes Parkway, Suite 200, Las Vegas, NV
89109. Thereafter, the Company shall be managed by at least one Manager who
shall be elected as provided in the Operating Agreement of the Company.
1
<PAGE>
ARTICLE VI
ADMISSION OF ADDITIONAL MEMBERS
Additional Members of the Company may be admitted by unanimous written
consent of the Members or in the manner provided in the Operating Agreement of
the Company.
ARTICLE VII
MEMBERS RIGHTS TO CONTINUE BUSINESS
If a Member of the Company dies, retires, resigns, is expelled, is
dissolved, experiences bankruptcy, or upon the occurrence of any other event
which terminates the continued Membership of a Member in the Company, the
remaining Members may continue the business of the Company in the manner
provided in the Operating Agreement of the Company.
ARTICLE VIII
OPERATING AGREEMENT
The Members may adopt, alter, amend, or repeal Operating Agreement of
the Company containing provisions for the regulation and management of the
affairs of the Company.
ARTICLE IX
DATE OF EXISTENCE OF THE COMPANY
The existence of the Company shall commence on the date of filing the
Articles of Organization by the Nevada Department of State.
ARTICLE X
ORGANIZER
These Articles of Organization are hereby executed by the undersigned
this 20th day of March, 2000. The street address of the Organizer is 6100 Neil
Road, Suite 500, Reno, Nevada 89511.
The Corporation Trust Company of Nevada
BY: /s/ V. Miller
-----------------
V. Miller (Plantation)
Assistant Secretary
2
<PAGE>
CERTIFICATE OF DESIGNATION OF
REGISTERED AGENT/REGISTERED OFFICE
PURSUANT TO THE PROVISIONS OF SECTIONS 86.121 AND 86.125 OF THE NEVADA REVISED
STATUTES, THE UNDERSIGNED LIMITED LIABILITY COMPANY SUBMITS THE FOLLOWING
STATEMENT TO DESIGNATE A REGISTERED OFFICE AND REGISTERED AGENT IN THE STATE OF
NEVADA.
1. The name of the Limited Liability Company is:
CORPUS CHRISTI DAY CRUISES, LLC
2. The name and the Nevada address of the Registered Agent are:
The Corporation Trust Company of Nevada
6100 Neil Road, Suite 500, Reno, Nevada 89511
Having been named as Registered Agent and to accept service of process for the
above stated Limited Liability Company at the place designated in this
certificate, I hereby accept the appointment as Registered Agent and agree to
act in this capacity. I further agree to comply with the provisions of all
statutes relating to the proper and complete performance of my duties, and I am
familiar with and accept the obligations of my position as Registered Agent.
The Corporation Trust Company of Nevada
By /s/ V. Miller
----------------
Agent for Service of Process V. Miller
(Plantation)
3
<PAGE>
SECRETARY OF STATE
STATE OF NEVADA
LIMITED-LIABILITY COMPANY CHARTER
I, DEAN HELLER, the Nevada Secretary of State, do hereby certify that
CORPUS CHRISTI DAY CRUISES, LCC did on March 20, 2000, file in this office the
Articles of Organization for a Limited-Liability Company, that said Articles are
now on file and of record in the office of the Nevada Secretary of State, and
further, that said Articles contain the provisions required by the laws
governing Limited-Liability Companies in the State of Nevada.
IN WITNESS WHEREOF, I
have hereunto set my
hand and affixed the
Great Seal of State,
at my office in
Carson City, Nevada,
on March 20, 2000.
/s/ Dean Heller
[SEAL]
Secretary of State
By /s/
Certification Clerk
4
Consulting Agreement
This agreement made this 11th day of February, 2000, by and between VIVA
GAMING & RESORTS, INC. a Florida Corporation, (hereinafter referred to as
Company) and Mr. Chuck Campbell (hereinafter referred to as Consultant) in
connection with Company's desire to retain the consulting services of Consultant
as follows to wit:.
1. Compensation:
-------------
Company will pay an initial monthly fee of FIVE THOUSAND DOLLARS
($5,000.00) upon execution of this agreement and;
FIVE THOUSAND DOLLARS ($5,000.00) per month payable on the 11th of each
month beginning on 2/11/00 and hereafter for the term of this agreement.
2. Term:
-----
(a) The term of this agreement shall be for a period of 6 months commencing
on the date of execution, and shall terminate as set forth herein or
automatically terminate at the end of this term, unless otherwise extended as
hereinafter set forth herein.
3. Termination:
------------
By Company:
This agreement may be terminated by Company for "cause" anytime without
prior notice to Consultant. A list of for "cause". Should Company be desirous of
termination this agreement for any reason other than for cause", than Company
shall give Consultant thirty (30) days written
1
<PAGE>
notice of early termination, wherein this agreement shall become terminated.
By Consultant:
Should consultant wish to terminate this agreement for any reason, than in
this event, Consultant shall provide Company with thirty days written notice of
it's intention to do so and shall provide it's best efforts to assist Company in
obtaining a replacement consultant, should Company request the assistance of
Consultant in this connection.
4. Responsibilities of Consultant:
-------------------------------
Acting in the capacity of Consultant on behalf of Company, Consultant
shall be responsible for all the duties set forth in the attached exhibit A.
5. Applicable law and Jurisdiction:
--------------------------------
This agreement shall be governed and construed in accordance with the laws
of the state of Florida.
6. Independent agent clause:
-------------------------
It is understood that Consultant is an independent agent and shall not be
considered an employee of Company. All compensation paid by Company to
Consultant shall be considered fees and not salary or wages. Consultant shall be
responsible for all employment, taxes and insurance. 7. Arbitration clause:
In the event of a disagreements to the facts and/or the terms set forth
herein, both parties agree to submit said dispute to arbitration in the state of
Florida, which decision shall be binding upon both parties.
8. Notices:
--------
All correspondence or notices required to be given in this agreement shall
be sent via
2
<PAGE>
"certified" mail to each party to the following addresses:
To Company: Viva Gaming & Resorts, Inc.
3753 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89109
To Consultant: Add Job Responsibilities
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
In Witness whereof the parties have executed this agreement this 11th day of
February, 2000.
VIVA GAMING & RESORTS, INC.
/s/ Marty Gross /s/ Chuck Campbell
- ------------------------------- -----------------------------
By Marty Gross, its President Mr. Chuck Campbell
3
LEASE AGREEMENT
---------------
STATE OF TEXAS ss.
ss.
COUNTY OF NUECES ss.
This LEASE AGREEMENT is made and entered in duplicate this 27th day of
March, 2000, by and between PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY,
TEXAS, acting by and through its Port Commissioners (hereinafter called
"Authority"), and Corpus Christi Day Cruise, L.L.C., a Nevada corporation
authorized to do business in the state of Texas whose principal address is 3753
Howard Hughes Parkway, Ste. 200, Las Vegas, Nevada 89109 (hereinafter called
"Lessee").
ARTICLE I
LEASE OF PREMISES
Section 1.01 Description of Premises and Term
--------------------------------
Authority, in consideration of the rents to be paid and the terms,
covenants and conditions hereinafter set forth, hereby leases to Lessee real
property situated in Nueces County, Texas, which is described as follows:
A tract of 6.0 acres of land, more or less, an easement for an access
road, and Harbor Island Dock 2, which tract, easement and dock are
particularly depicted and/or described by plat shown on Exhibit A
attached hereto, which exhibit is incorporated herein by reference, and
all improvements constructed or to be constructed thereon under the
terms of this agreement (hereinafter called "Leased Premises")
TO HAVE AND TO HOLD the Leased Premises for a primary term of five (5)
years, beginning on the date of execution of this lease agreement and (subject
to earlier termination as herein provided) ending at Midnight, Central Time,
five (5) years thereafter.
Section 1.02 Holding Over
------------
In the event of any holding over by Lessee beyond the term of this
lease set forth in Section 1.01 and any renewal hereof without the written
consent of Authority, Lessee shall be deemed to be occupying the Leased Premises
as a tenant at sufferance, subject to all the terms of this Lease insofar as the
same are applicable to a tenant at sufferance.
1
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ARTICLE II
INSPECTION OF LEASED PREMISES
-----------------------------
PRIOR TO OCCUPANCY UNDER THIS LEASE, LESSEE WILL INSPECT THE LEASED
PREMISES AND ACCEPT THE CONDITION OF THE LEASED PREMISES "AS IS". LESSEE HAS
AGREED AND DOES AGREE THAT THE LEASED PREMISES IS REASONABLY SUITED AND FIT FOR
ALL OF THE INTENDED USES OF THE LEASED PREMISES AFTER LESSEE'S IMPROVEMENTS TO
THE LEASED PREMISES.
ARTICLE III
RENT
----
Section 3.01 Basic Annual Land Rental
------------------------
Subject to adjustments provided for herein, Lessee agrees to pay to
Authority at its offices in Corpus Christi, Texas, an annual rental for the
Leased Premises payable in equal monthly installments in advance on or before
the first day of each and every month during the term of this lease, to be
calculated so as to bring to Authority an annual rental equal to eight per cent
(8%) of the value of the Leased Premises. "Value" is that value per acre (or in
some instances, per square foot) placed on the Leased Premises by Authority. For
the purpose of fixing annual rental for the first five (5) years of this lease,
the value of the Leased Premises is placed at Eighty Thousand and NO/100 Dollars
($80,000.00) per acre and the annual rental based thereon is the sum of
Thirty-Eight Thousand Four Hundred and N0/100 Dollars ($38,400.00), payable in
monthly installments of Three Thousand Two Hundred and N0/100 Dollars
($3,200.00).
The first monthly installment payment of rental hereunder shall be due
and payable on the 15th day of July, 2000. Each monthly installment of rental
shall be due and payable on the 15th day of each succeeding month thereafter, at
the offices of Authority in Corpus Christi, Nueces County, Texas.
Rent shall be paid to Authority at its address for notice hereunder or
to such other person or at such other address in Nueces County, Texas, as
Authority may from time to time designate in writing. Rent shall be paid in
legal tender of the United States of America (or in legal tender of any other
nationality acceptable to Authority) without notice, demand, abatement,
deduction or offset.
To secure the payment of Basic Annual Land Rental and Additional Rent
Lessee will within thirty (30) days after the effective date of this Lease,
cause a letter of credit to be issued by a bank or other financial institution
acceptable to Authority for a period of one (1) year from July 15, 2000, for the
sum of $500,000.00 and providing in terms acceptable to Authority that if Lessee
does not pay the Basic Annual Land Rent and Additional Rent in accordance with
the lease, the entity issuing the letter of credit will pay the sum due
Authority upon the written certification by Authority's Director of Finance of
the amount of such sum and that it is unpaid.
2
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Section 3.02 Additional Rent
---------------
In addition to the Basic Annual Land Rental to be paid, Lessee will pay
the following additional rentals (Additional Rent):
(1) An annual dockage fee of Zero and NO/100 Dollars ($0.00) per year
during the term of this lease in consideration for Lessee's improvement,
maintenance and repair of all improvements, including the dock, located on the
Leased Premises, and dredging and maintenance dredging of the slip for the dock
located on the Leased Premises; and
(2) A wharfage fee of One and NO/100 Dollars ($1.00) per passenger per
trip of Vessel(s) from the Leased Premises during the first two years of the
term of this lease, and a wharfage fee of One and 50/100 Dollars ($1.50) during
the last three years of the term of this Lease.
(3) On all trips of twenty-four hours or more duration from the
Authority's Inner Harbor, the Authority's published tariff rate shall be
charged.
The above Additional Rent shall be paid in monthly installments on the
same dates as the annual rent referred to hereinabove.
Section 3.03 Interest on Lessee Obligations
------------------------------
In the event any monthly rental, or any other sum due Authority
hereunder, is not received within five (5) days after its due date for any
reason whatsoever, the total amount due may bear interest at Authority's sole
option at the highest lawful agreed contractual rate per annum in the State of
Texas, or if there is no maximum rate, at the rate of one and one-half per cent
(1-1/2%) per month, from the due date of such rent until Lessee's payment of
same. Interest shall be payable as additional rent hereunder and shall be
payable immediately on demand. In no event shall the interest provided for in
this section exceed the maximum rate of interest allowable under applicable law.
Section 3.04 Utilities
---------
In addition to the annual rent described hereinabove, Lessee agrees to
pay when due all charges for water, gas, electricity, and other utilities used
by it on the Leased Premises.
Section 3.05 Abatement of Rental
-------------------
Authority hereby agrees to abate the Basic Annual Land Rental until
such time as Lessee's initial cost of the construction of (a) the parking lot on
the Leased Premises and (b) the roadway access to the Leased Premises is equal
to the amount of Basic Annual Land Rental abated, or this lease is either
terminated, or the Leased Premises is relocated pursuant to Section 5.12 of this
lease. Lessee will provide Authority documentation acceptable to Authority
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verifying the cost of construction of the said parking lot and access road
within thirty (30) days of the commencement date of this agreement
Section 3.06 Improvements and Dredging
-------------------------
Lessee will perform by July 15, 2000, and pay all costs for, the
construction of the Improvements described in Exhibit B attached hereto and
incorporated herein by reference, (the "Improvements") and the initial dredging
of the slip for the dock located on the Leased Premises (and all subsequent
maintenance dredging) required to accommodate Lessee's vessels. Lessee
acknowledges it is aware of the high shoaling rate that occurs in the slip at
the dock located on the Leased Premises. To secure its performance and payment
for the cost of construction the Improvements and dredging Lessee will provide
before it commences any of its construction, a performance bond and a payment
bond, for the benefit of Authority each bond in the form usually required by
Authority and in an amount and written by a surety acceptable to Authority, or
provide some other form of such surety contracts acceptable to Authority.
ARTICLE IV
USE OF LEASED PREMISES
----------------------
Section 4.01 Use
---
The Leased Premises shall be used for the following purposes, and no
other, unless written permission for other use is obtained from Authority:
For passenger cruise service for voyages into the Gulf of Mexico by
vessels substantially crewed by United States citizens which carry
gaming equipment aboard them of not more than twenty-four (24) hours
duration.
Lessee will not (A) use, occupy or permit the use or occupancy of the
Leased Premises for any purpose or in any manner which is nor may be, directly
or indirectly, (i) inconsistent with the requirements of Section 4.01 hereof,
(ii) violative of (a) judicial decisions, orders, injunctions, writs, statutes,
rulings, rules, regulations, promulgations, directives, permits, certificates or
ordinances of any governmental authority in any way applicable to Lessee or the
Leased Premises, including zoning, environmental and utility conservation
matters, (b) Authority's Tariffs or Rules and Regulations, (c) insurance
requirements, and (d) other documents, instruments or agreements (written or
oral) relating to the Leased Premises or to which the Leased Premises may be
bound or encumbered, (iii) dangerous to life or property or a public or private
nuisance, or (iv) disruptive to the activities any other tenant or occupant of
property adjacent to the Leased Premises; (B) commit or permit to remain any
waste to the Leased Premises, or (C) commit, or permit to be committed, any
action or circumstance in or about the Leased Premises which, directly or
indirectly, would or might justify any insurance carrier in canceling the
insurance policies maintained by Lessee or Authority on the Leased Premises and
improvements thereon.
4
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Section 4.02 Environmental Representations and Restrictions
----------------------------------------------
Lessee hereby represents and warrants to Authority:
(a) that Lessee's construction, occupancy, operation and/or use of the
Leased Premises shall not violate any applicable law, statute, ordinance, rule,
regulation, order or determination of any governmental authority or any board of
fire underwriters (or other body exercising similar functions), or any
restrictive covenant or deed restriction (recorded or otherwise) affecting the
Leased Premises, including, but not limited to, all applicable zoning ordinances
and building codes, flood disaster laws and health and environmental laws and
regulations (hereinafter sometimes collectively called "Applicable Laws");
(b) that, without limitation of (a) above, in its use of the Leased
Premises, Lessee shall not violate any Applicable Laws pertaining to health or
the environment (hereinafter sometimes collectively called "Applicable
Environmental Laws"), including, but not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42
U.S.C. Section 9601 et seq; the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq; the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq; the Resources Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq; Authority's Tariffs, Rules and Regulations; the
Texas Water Code, and the Texas Solid Waste Disposal Act, article 4477-7,
V.A.T.S.;
(c) that Lessee has not obtained and is not required to obtain any
permits, licenses, or similar authorizations to construct, occupy, operate, or
use any buildings, improvements, fixtures, and equipment forming a part of the
Leased Premises by reason of any Applicable Environmental Law, except as
follows:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
(d) that the use which Lessee intends to make of the Leased Premises
will not result in the disposal or other release of any hazardous substance or
solid waste on or to the Leased Premises; the terms "hazardous substance" and
"release" shall have the meanings specified in CERCLA, and the terms "solid
waste" and "disposal" (or "disposed") shall have the meanings specified in the
RCRA; provided, in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply
subsequent to the effective date of such amendment and provided further, to the
extent that the laws of the State of Texas establish a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply, and in
either of said instances Lessee shall immediately cease activities prohibited or
regulated by applicable laws or applicable environmental laws upon the Leased
Premises and notify Authority in writing of same within five (5) days.
5
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All of the foregoing representations and warranties made by Lessee
shall be continuing and shall be true and correct for the entire term of this
lease, including any extensions hereof, and all of such representations and
warranties shall survive expiration or termination of this lease.
This section shall not be construed to prohibit the off loading at the
premises of refuse created on Lessee's ship, so long as no contamination of the
premises occurs and so long as Lessee complies with the other requirements of
this Section 4.02.
Section 4.03 Environmental Audit
-------------------
In the event that Lessee desires to make an investigation into the
present condition of the surface and subsurface of the Leased Premises, Lessor
agrees to enter into an Environmental Audit Agreement with Lessee, allowing an
investigation to be made by Lessee prior to the commencement of construction of
the Improvements. If such Audit is not done nor objection raised by Lessee prior
to the commencement of construction, Lessee will have been conclusively presumed
to have waived its right to object to environmental issues that the audit should
have revealed.
Lessor represents that it has no knowledge of any pollution or
contamination of the Leased Premises that violate standards of the State of
Texas or the United States of America for the intended use of the Leased
Premises by Lessee.
Section 4.04 Permitted Use; Continuous Operation
-----------------------------------
Lessee shall (i) continuously maintain the Leased Premises open for
business and available for the purposes permitted hereunder at least during
business hours on all days including Saturdays, Sundays and legal holidays, and
(ii) use the property and conduct its day cruise operation at the Leased
Premises, and will make a minimum of one (1) trip per 24-hour day with the day
cruise vessel operating from the dock at the Leased Premises for 300 days during
each year of the term of this Lease. Any prevention, delay, or nonperformance of
the requirement of daily cruise vessel trips contained in this Section 4.04 (ii)
is excused for each day the same does not occur due to acts of God, acts of
public enemies of the State of Texas or United States of America, riots,
insurrections, civil commotion, inability to obtain labor or materials or
reasonable substitutes for either, governmental restrictions or regulations or
controls, manufacturer's defects in the vessel, drydocking, availability of
bunkers, class inspections or safety factors reasonably preventing safe
operation of gaming vessel(s) from the Leased Premises, including but not
limited to weather conditions, provided the Master of the vessel in question
makes a written notation in the vessel log, or otherwise, for each scheduled day
cruise trip not taken due to such circumstance which states the nature of the
safety factors preventing safe operation of the vessel and his opinion that
under the circumstances the vessel cannot be operated safely under such
circumstances.
The covenants of this Section 4.05 are material to this Lease, and
should Lessee fail to satisfy such covenants, Authority shall have all of the
rights set forth in Article IX herein.
6
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Section 4.05 Mooring of Vessels
------------------
Only boats, barges, or other equipment (not to exceed 425 feet in
length) being loaded or unloaded by Lessee may, be moored along the water
frontage of the Leased Premises. Mooring boats and barges of others, including
pleasure craft and houseboats, is specifically prohibited unless special
arrangements are made with Authority regarding additional payments or rental for
berthing.
Lessee agrees to remove, or cause to be removed, within twenty-four
(24) hours any vessel owned or controlled by Lessee berthed at, the Leased
Premises which in the opinion of the Authority is a hazard to navigation. As
used herein, hazard to navigation shall mean any vessel that in the opinion of
the Authority is likely to sink or block the ship channel.
ARTICLE V
IMPROVEMENTS OR ALTERATIONS
---------------------------
Section 5.01 Permanent Improvements
----------------------
All existing improvements and Improvements made, placed, or constructed
on the Leased Premises shall be maintained at the sole cost and expense of
Lessee. Lessee shall construct and install its Improvements in a good and
workmanlike manner. No improvements by Lessee are permitted outside the Leased
Premises unless Authority consents to same in writing. Any improvements
permitted by Authority to be located outside the Leased Premises shall be
subject to immediate removal by Lessee at its sole cost upon written
notification by Authority that the land is needed for other purposes.
Section 5.02 Appearance of Premises
----------------------
Lessee shall, at its expense, keep the Leased Premises clean and free
from all rubbish, trash and weeds. Lessee shall comply with all rules and
regulations, as amended, of Authority applicable to the Leased Premises.
Section 5.03 Alterations and Improvements
----------------------------
All plans for proposed additional buildings, drainage and improvements
of any kind, or any alterations or additions thereto to be constructed by
Lessee, shall be submitted to and approved in writing by the Director of
Engineering Services of Authority prior to the commencement of work. No approval
of designs, site plans, plans, specifications or other matters shall ever be
construed as representing or implying that such designs, site plans, plans,
specifications or other matters will, if followed, result in a properly designed
building or other improvements constructed in addition to or as substitute or
replacement for a building or other improvements. Such approvals shall in no
event be construed as-representing or guaranteeing that any improvements will be
built in a workmanlike manner, nor shall such approvals relieve Lessee of its
7
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obligation to construct the building in a workmanlike manner. Lessee will
defend, indemnify, hold Authority and indemnify Authority from and against any
suits, actions or causes of action arising out of Authority's approval of any
designs, site plans, plans, specifications or other matters.
Section 5.04 Building Code
-------------
Lessee shall perform any construction undertaken by it in conformity
with all applicable building code standards and requirements for the area in
which the construction is located and shall conform with the Code of the
National Board of Fire Underwriters covering the location and type of structure
proposed to be constructed by Lessee on the Leased Premises. All buildings shall
be steel frame, iron clad or better construction. Temporary buildings of a
modular or mobile type shall be permitted during the term of this Lease provided
they are constructed and secured in accordance with local building codes.
Section 5.05 Permits
-------
Lessee shall obtain and maintain in effect at all times during the term
of this Lease all permits, licenses and consents required or necessary for the
construction, installation, maintenance, use and operation of the improvements
constructed by Lessor and of Lessee's improvements and Lessee's use and
occupancy of and operations at the Leased Premises.
Section 5.06 Ownership of Improvements
-------------------------
Subject to the provisions of this lease, all buildings and improvements
placed or constructed upon the Leased Premises shall be and remain the property
of the Authority, provided, however, Lessee, at the end of the term of this
lease shall have the right to remove personal property and trade fixtures,
provided same can be removed without damage to the remainder of the improvements
on the Leased Premises.
Section 5.07 Signs
-----
Lessee shall not place any signs at or on the Leased Premises, which do
not comply with standards contained in the sign ordinances of the cities of Port
Aransas, Texas or Aransas Pass, Texas. The Director of Engineering Services of
Authority will be provided in advance in writing a description of any sign(s) to
be placed at or on the Leased Premises. No signs shall be painted on any
building which constitutes a part of the Leased Premises.
Section 5.08 Repair and Maintenance
----------------------
Lessee shall maintain the Leased Premises at all times during the term
of this lease in a good, clean, safe, operable and well-kept condition, and will
not commit nor allow to remain on the Leased Premises any waste or damage to any
portion of the Leased Premises.
8
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Section 5.09 Laborers and Mechanics
----------------------
Lessee shall pay for all labor and services performed for materials
used by or furnished to any contractor employed by Lessee with respect to the
Leased Premises and hold Authority and the Leased Premises harmless and free
from any liens, claims, encumbrances or judgments created or suffered by Lessee.
If Lessee elects to post a payment or performance bond or is required to post an
improvement bond with a public agency in connection with the above, Lessee
agrees to include Authority as an additional obligee thereunder.
Section 5.11 Flood Plain
-----------
Lessee acknowledges that it has been advised by Authority that the land
is in the FEMA flood plain and that all construction of improvements must
conform to the requirements for construction of improvements in a flood plain.
Section 5.12 Relocation
----------
Authority has the right after the expiration of the first two (2) years
of the term of this Lease and upon three hundred sixty-five (365) days written
notice by Authority to Lessee of Authority's exercise of Authority's right, to
relocate the Leased Premises to the end of the term of this lease by providing
an alternative Leased Premises on Harbor Island, Texas. The cost of any
improvements required at the alternative Leased Premises and who will construct
same will be negotiated between Authority and Lessee in good faith.
ARTICLE VI
SECURITY AND TAXES
------------------
Lessee shall, at its sole cost and expense, provide for security for
the Leased Premises and for the servicing of the Leased Premises with water,
gas, electricity, telephone, sewage treatment and drainage, and any other
utilities or similar services used in or on the Leased Premises. To the extent
Authority provides any such services to the Leased Premises or pays the cost for
any such services, Lessee shall pay to Authority the cost of such services as
rent hereunder upon receiving an invoice therefor, payment to be made pursuant
to the terms of said invoice.
During the term of the lease, Lessee shall pay or cause to be paid as
and when the same shall become due, all taxes, fees or charges imposed on its
property on, or used in connection with, the Leased Premises. Any of said taxes,
fees or charges imposed on its property on, or used in connection with, the
Leased Premises that are payable by Lessee for the tax year in which this lease
commences, as well as during the year in which this lease terminates, shall be
apportioned so that Lessee shall pay its proportionate share of the taxes, fees
or charges imposed on its, property on, or used in connection with, the Leased
Premises payable for such periods of time. Lessee may pay such taxes, fees or
charges imposed on its property on, or used in connection with, the Leased
Premises in installments as and when such installments become due. Lessee shall
9
<PAGE>
deliver to Authority evidence of payment of all taxes, fees or charges imposed
on its property on, or used in connection with, the Leased Premises, which
Lessee is obligated to pay hereunder, concurrently with the making of such
payment. Lessee shall, within sixty (60) days after payment of any taxes, fees
or charges imposed on its property on, or used in connection with, the Leased
Premises, deliver to Authority copies of the receipted bills or other evidence
reasonably satisfactory to Authority showing such payment.
ARTICLE VII
USE BY AUTHORITY
----------------
Authority reserves to itself and the public the right to use any
streets or roadways constructed by Lessee on the Leased Premises. Authority
further reserves the right to use as much of the Leased Premises as is necessary
to lay mains for gas, water or sewers on the Leased Premises; to place poles and
necessary wires and attachments for electricity or for telephone and telegraph
lines over and across any part of the Leased Premises; and to lay, or grant
easements for the laying of, pipelines for oil, petroleum, petroleum products
and any other products over, under and upon same said land; provided, however,
that the same shall not interfere with Lessee's buildings, improvements or
Lessee's use of the Leased Premises. Authority shall have the right to use third
parties for the performance of the rights in this paragraph reserved to
Authority.
ARTICLE VIII
SUBLETTING
----------
Section 8.01 Sublease or Transfer
--------------------
Lessee shall not assign this lease in whole or in part nor any interest
therein, nor sublet the Leased Premises or any part thereof or grant any
license, concession or other right of occupancy of any portion for the Leased
Premises without the prior written consent of Authority, except for those
licenses or concessions necessary for Lessee to operate its cruise ship service
on the Leased Premises. Lessee will at all times keep Authority informed in
writing of the licenses or concessions it grants relative to operation of its
cruise ship service and will provide Authority all information relative to such
licenses or concessions including but not limited to the names of licensees and
concessionaires and the term of such licenses and concessions. Consent of
Authority to one or more assignments and subletting shall not operate as a
waiver of Authority's rights as to any subsequent assignments and sublettings.
If this Lease is assigned, or if any of the Leased Premises, or any part
thereof, is sublet, or occupied by anyone other than the Lessee, the Authority
may, after default by the Lessee, collect rent from the assignee, subtenant, or
occupant and apply the net amount collected, exclusive of costs of collection,
attorneys' fees or other costs incurred by Authority, to the rent herein
reserved. No such assignment, subletting, occupancy, or collection shall be
deemed a waiver of this covenant or shall the acceptance by Authority of such
assignee, subtenant or occupant, as tenant, release Lessee from the further
performance of the covenants of this Lease.
10
<PAGE>
Lessee shall not assign this lease in whole or in part nor any interest
therein, nor sublet the Leased Premises or any part thereof nor grant any
license, concession or other right of occupancy of any portion of the Leased
Premises nor permit the transfer of this lease by operation of law or otherwise
without the prior written consent of Authority except as provided for in the
preceding paragraph of this Section 8.01. Consent of Authority to one or more
assignments and subletting shall not operate as a waiver of Authority's rights
as to any subsequent assignments and sublettings. If this lease is assigned, or
if any of the Leased Premises, or any part thereof, is sublet or occupied by
anyone other than the Lessee, the Authority may, after default by the Lessee,
collect rent from the assignee, subtenant or occupant and apply the net amount
collected, exclusive of costs of collection, attorneys' fees or other costs
incurred by Authority, to the rent herein reserved. No such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant
nor shall the acceptance by Authority of such assignee, subtenant or occupant,
as tenant release Lessee from the further performance of the covenants in this
lease.
Section 8.02 Conditions
----------
The following conditions shall automatically apply to each sublease,
assignment or transfer, without the necessity of same being stated in or
referred to in Authority's written consent:
(a) Lessee shall execute, have acknowledged and deliver to Authority
and cause the sublessee, assignee or other transferee ("Transferee") of any
portion of Lessee's interest in this lease, the leasehold estate created hereby
or the Leased Premises to execute, have acknowledged and deliver to Authority,
an instrument in form and substance acceptable to Authority in which (i) the
Transferee adopts this lease and assumes and agrees to perform, jointly and
severally with Lessee, all of the obligations of Lessee hereunder, as to the
space transferred to it, (ii) the Transferee grants Authority an express first
and prior contract lien and security interest in its improvements located upon
and property brought into the transferred premises to secure its obligations to
Authority hereunder, (iii) Lessee subordinates to Authority's statutory lien,
contract lien and security interest any liens, security interests or other
rights which Lessee may claim with respect to any property of the Transferee,
(iv) Lessee and any guarantor of this lease agrees with Authority that, except
as to licenses granted under 8.02 above, if the rent or other consideration due
by the Transferee exceeds the rent for the transferred space, then Lessee shall
(and any guarantor guarantees that Lessee shall) pay Authority as additional
rent hereunder all such excess rent and other consideration immediately upon
Lessee's receipt thereof, (v) the Transferee agrees to use and occupy the
transferred space solely for the purposes permitted under Article IV and
otherwise in strict accordance with this lease, and (vi) Lessee and any
guarantor acknowledges and agrees in writing that, not-, withstanding the
transfer, Lessee and any guarantor' remains directly and primarily liable for
the performance of all the obligations of Lessee hereunder (including, without
limitation, the obligation to pay all rent), and Authority shall be permitted to
enforce this lease against Lessee, any guarantor or the Transferee, or all of
them, without prior demand upon or proceeding in any way against any other
persons; and
11
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(b) Lessee shall deliver to Authority a counterpart of all instruments
relative to the sublease, assignment or other transfer executed by all parties
to such transaction (except Authority).
Section 8.03 Liens
-----
Lessee shall not, except as provided for in Article X hereof, grant,
place or suffer, or permit to be granted, placed or suffered, against all or any
part of the Leased Premises or Lessee's leasehold estate created hereby, any
lien, security interest, pledge, conditional sale contract, claim, charge or
encumbrance (whether constitutional, contractual or otherwise) and if any of the
aforesaid does arise or is asserted, Lessee will, promptly upon demand by
Authority and at Lessee's expense, cause same to be released.
ARTICLE IX
DEFAULT
-------
Section 9.01 Rights and Remedies of Authority
--------------------------------
If for thirty (30) days after service by mail or otherwise to Lessee by
Authority of written notice of a breach by Lessee of any of the covenants
contained in this instrument which are to be performed on its part, the Lessee
does not or shall neglect or fail to perform any of such covenants, or if any
proceedings concerning Lessee or the Leased Premises be had in bankruptcy,
reorganization, arrangement or receivership, or if any assignment shall be
attempted to be made of this lease for the benefit of creditors, then in any of
said cases Authority shall have the rights and remedies that may be provided in
law or in equity and the following:
(a) Without terminating this lease, Authority may terminate Lessee's
right of possession of the Leased Premises under this lease by giving Lessee ten
(10) days notice by any of the methods herein provided, and the right of
possession shall thereupon immediately cease and come to an end; provided,
however, Authority shall not be required to give any such notice prior to the
filing of an action of forcible detainer or at common law upon default by Lessor
in the payment of rent.
(b) Additionally, Authority will have the option, but not the
obligation, to relet the Leased Premises or any part thereof, without
terminating this lease or working a forfeiture of the rent to be paid, and after
receiving the rent therefrom apply the same, first to the payment of such
expense the Authority may be put to in entering, letting and collecting,
including but not limited to the costs of renovating, altering and repairing for
a new occupant, and attorneys' and brokers' fees, and then to the payment of the
rent payable under this lease and to the fulfillment of Lessee's covenants
hereunder. Lessee shall be entitled to any balance remaining after subtracting
such costs and debts. Authority may at any time after reletting terminate the
lease for the default on account of which it reentered and relet.
12
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(c) Authority may terminate this lease upon thirty- (30) days written
notice to Lessee. In such event, Authority may recover from Lessee on
terminating the lease for Lessee's default all damages proximately resulting
from the default including accrued rent and including the cost of recovering the
Leased Premises and attorneys' fees which sums shall be immediately due and
payable to Authority from Lessee, plus an amount equal to the rent and all other
indebtedness as would otherwise have been required to be paid by Lessee to
Authority or others during the period following the termination of the lease
measured from the date of such, termination to the date of expiration of the
lease term' discounted to present value, less the then reasonable fair market
value of the Lease for such unexpired term.
Past due rent, or other charges payable hereunder, shall bear interest
at the rate set forth in Section 3.04 of Article III above.
Section 9.02 No Waiver
---------
Any assent, expressed or implied, by the Authority to any breach of any
agreement, covenant or obligation herein contained shall operate as such only in
the specific instance and shall not be construed as an assent or a wavier to any
such agreement, covenant or obligation generally, or of any subsequent breach
thereof. The various rights, powers, elections and remedies of the Authority
contained in this lease shall be construed as cumulative, and no one of them as
exclusive of the other, or exclusive of any rights or priorities allowed by law,
and no rights shall be exhausted by being exercised on one or more occasions.
The remedies provided herein or at law or equity shall not be mutually
exclusive.
ARTICLE X
LIEN AND SECURITY INTEREST
--------------------------
In consideration for the mutual benefits arising under this lease, and
as security for Lessee's performance of all its obligations under this lease,
Lessee hereby grants to Authority a lien and security interest in and on all
property of Lessee now or hereafter placed in or upon the Leased Premises, and
such property shall be and remain subject to such lien and security interest of
Authority for payment of all rent and other sums agreed to be paid by Lessee
herein. The provisions of this section shall constitute a security agreement
under the Texas Uniform Commercial Code so that Authority shall have and may
enforce a security interest on all property of Lessee now or hereafter placed in
or on the Leased Premises, including but not limited to all fixtures, machinery,
equipment, furnishings and other articles of personal property now or hereafter
placed in or upon the Leased Premises by Lessee. An event of default under this
lease shall be default under the security agreement. Authority may at its
election at any time file a copy of this lease as a financing statement.
Authority, as secured party, shall be entitled to all of the rights and remedies
afforded to a secured party under the Texas Uniform Commercial Code, which
rights and remedies shall be in addition to and cumulative to the Authority's
liens and rights provided by law or by the other terms and provisions of this
lease. Promptly upon request, and without further consideration, Lessee agrees
to execute as debtor such additional financing statement or statements as
Authority may now or hereafter reasonably request in order that Authority's
13
<PAGE>
security interests may be protected pursuant to the Texas Uniform Commercial
Code, which Authority may at its election file in the appropriate records.
Anything contained herein to the contrary not withstanding, it is agreed that
the -lien and security interest granted herein shall not attach to any
documented ship of Lessee.
Authority-agrees to enter into subordination agreements with Lessee's
lenders as to specific debts incurred for the purchase of specific personal
property assets of Lessee placed on the Leased Premises.
ARTICLE XI
EXCLUSIVITY
-----------
Authority agrees that during the primary term of this lease Lessee
shall be the only person or entity permitted by Authority to conduct a day
cruise operation from any property of the Authority. A day cruise operation is
hereby defined as one in which passengers for hire are carried aboard a vessel,
which carries gaming equipment on board on a voyage of less than twenty-four
(24) hours duration into the Gulf of Mexico.
Notwithstanding any of the foregoing to the contrary, this article
relative to exclusivity and first refusal shall not in any way have any
application to Authority's leasing its property to, or otherwise permitting,
persons or entities to conduct cruise ship operations docking at the Inner
Harbor of Lessor which do not come within the definition herein of a day cruise
operation.
ARTICLE XII
INDEMNITY AND INSURANCE
-----------------------
Section 12.01 Indemnity
---------
Lessee hereby releases and discharges Authority from liability for, and
assumes the risk of loss or damage to the property of Lessee, and the personal
injury or death of any person employed by Lessee, and Lessee expressly agrees to
defend, indemnify, reimburse and hold Authority, its agents, servants, employees
and Commissioners, harmless from all claims, causes of action, demands, damages,
and liabilities of any kind or character, including but not limited to claims,
causes of action, demands, damages and liabilities in any matter resulting from,
arising out of or caused, in whole or in part, by Lessee's willful misconduct,
negligence, gross negligence, deliberate acts, strict liability in tort, breach
of warranty, express or implied, or breach of any term or condition of this
lease, including that caused by any of the Lessee's agents, contractors,
employees, invitees or licensees, activities directly or indirectly related to
this lease occurring in, during or after the term of this lease, save and except
such damages as may be caused by the sole negligence of the Authority, its
agents, contractors, employees, invitees or licensees.
14
<PAGE>
Except as otherwise expressly limited herein, it is the intent of the
parties hereto that all indemnity obligations and liabilities assumed under the
terms of this lease be without monetary limit and without regard to the cause or
causes thereof (including pre-existing conditions). The indemnity contained in
this article applies, without limitation, to any violation of any Applicable
Environmental Law in effect during the term of this Lease, including any
extensions, and any and all matters arising out of any act, omission, event or
circumstance existing or occurring during the term of this lease, including any
extensions (including without limitation the presence on the Leased Premises or
release from the Leased Premises of hazardous substances or solid waste disposed
of or otherwise released prior to the Release Date), regardless of whether the
act, omission, event or circumstance constituted a violation of any Applicable
Environmental Law at the time of its existence or occurrence. The terms
"hazardous substance" and "release" shall have the meanings specified in CERCLA,
and the terms "solid waste" and "disposed" shall have the meanings specified in
RCRA; provided, in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply
subsequent to the effective date of such amendment and provided further, to the
extent that the laws of the State of Texas establish a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply.
Section 12.02 Insurance
---------
Without limiting the indemnity obligations or liabilities of Lessee or
its Insurers, provided herein Lessee agrees to carry and maintain at its sole
expense insurance of the types and in the minimum amounts as follows:
1. "All Risks" of direct physical loss including (Flood and Earthquake)
insurance on the improvements on the Leased Premises in an amount sufficient to
cover 100% of the insurable value of the said improvements, effective as of the
commencement of this lease. "Insurable value" shall mean actual replacement
value and such value shall be confirmed from time to time (but not more
frequently than the dates of renewal of such policy) at the request of
Authority, one of the insurers or at the option of Authority by an insurance
appraiser.
2. For all its employees engaged in performing work, U.S. Longshore and
Texas workers' compensation, and employer's liability insurance with limits of
at least $500,000 per accident, or similar social insurance in accordance with
law which may be applicable to said employees.
3. Commercial General Liability insurance including contractual and
liquor liability insurance with policy limits of at least $1,000,000 for injury,
death or property damage resulting from each occurrence.
4. Business Auto Liability insurance coverage covering all owned,
non-owned and hired vehicles with policy limits of at least $1,000,000 for
injury, death or property damage resulting from each accident.
15
<PAGE>
5. Charter's Liability insurance including crew and collision coverage
with limits of at least $10,000,000, and liability coverage with limits of at
least $10,000,000, and pollution liability coverage with limits of at least
$5,000,000.
6. Umbrella liability insurance having limits of not less than
$10,000,000 policy limits with respect to injury, death or property damage
resulting from each accident or occurrence including liquor liability.
The minimum insurance protection amounts set forth in clauses, 1, 3, 4,
5 and 6 above shall be increased from time to time upon request by Authority to
an amount which is reasonable at the time. Lessee shall deliver to Authority,
prior to the commencement date of this lease, certificates of the insurance
described in this Article XII, or such other proof of insurance as shall be
deemed acceptable by the Authority and shall, at all times during the term of
this lease, deliver to Authority upon request true and correct copies of said
insurance policies. The policies of such insurance shall (i) (except for
workers' compensation insurance) name Authority as an additional insured, (ii)
provide that it will not be cancelled or reduced in coverage without thirty (30)
days' prior written notice to Authority, (iii) be primary coverage, so that any
insurance coverage obtained by Authority shall be in excess thereto. Lessee
shall deliver to Authority certificates of renewal at least thirty (30) days
prior to the expiration date of each such policy and copies of new policies at
least thirty (30) days prior to terminating any such policies. All policies of
insurance required to be obtained and maintained by Lessee shall be subject to
the approval of Authority as to terms, coverage, deductibles and issuer (with a
Best Rating of A IX or greater), which approval shall not be unreasonably
withheld. If Lessee neglects or refuses to provide any insurance required
herein, or if any insurance is cancelled, Authority may procure such insurance
at Lessee's expense.
Section 12.04 Waiver of Subrogation
---------------------
Authority and Lessee each waive any and every claim which arises or may
arise in its favor and against the other party hereto during the term of this
Lease or any renewal or extension thereof for any and all loss of, or damage to,
any of its property located within or upon, or constituting a part of, the
Leased Premises, which loss or damage is covered by valid and collectible
property insurance policies, to the extent that such loss or damage is
recoverable under said insurance policies. Said mutual waivers shall be in
addition to, and not in limitation or derogation of, any other waiver or release
contained in this lease with respect to any loss of or damage to property of the
parties hereto. Each party agrees to immediately give to each insurance company,
which has issued to it policies of fire and extended coverage insurance, written
notice of the terms of said mutual waivers, and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of said insurance
coverage by reason of said waivers.
Section 12.05 Shipping Act Limitation
-----------------------
The provisions of this Article XII are subject to applicable
limitations imposed by the United States Shipping Act of 1916 and/or the
Shipping Act of 1984, as amended.
16
<PAGE>
ARTICLE XIII
CASUALTY LOSS
-------------
Section 13.01 Obligation to Restore
---------------------
If all or any part of the improvements located on (or constituting a
part of) the Leased Premises are destroyed or damaged by any casualty during the
term of this lease, Lessee shall promptly commence and thereafter prosecute
diligently to completion the restoration of the same to the condition in which
the destroyed or damaged portion existed prior to the casualty. Lessee will
perform such restoration with at least as good workmanship and quality as the
improvements being restored and in compliance with the provisions of Article V
hereof. Notwithstanding the foregoing provisions of this paragraph to the
contrary, if all of such improvements are wholly destroyed by any casualty or
are so damaged or destroyed that, in Authority's good faith judgement reasonably
exercised that it would be uneconomic to cause the same to be restored (and
Authority shall given written notice of such determination to Lessee within
ninety (90) days after the date the casualty occurred), then Lessee shall not be
obligated to restore such improvements and this lease shall terminate as of the
date of the casualty.
If a casualty loss affecting the Leased Premises occurs, all insurance
proceeds arising from policies maintained by Lessee for the damages arising from
such casualty shall be distributed and paid directly to Authority, and Authority
shall distribute such insurance proceeds to Lessee to the extent necessary to
reimburse Lessee for costs incurred by Lessee in restoring the damaged Leased
Premises in satisfaction of this Section 13.01, and any balance of such proceeds
remaining after such restoration is complete shall be retained by (and shall be
the property of) Authority.
Section 13.02 Notice of Damage
----------------
Lessee shall immediately notify Authority of any destruction of or
damage to the Leased Premises.
ARTICLE XIV
CONDEMNATION
------------
Section 14.01 Total Taking
------------
If a total taking of the Leased Premises by condemnation occurs, then
this lease shall terminate as of the date the condemning authority takes lawful
possession of the Leased Premises and Authority shall be entitled to receive and
retain the award for the taking of the Leased Premises.
Section 14.02 Partial Taking
--------------
17
<PAGE>
If a partial taking of the Leased Premises by condemnation occurs, (a) this
lease shall continue in effect as to the portion of the Leased Premises not
taken, and (b) Lessee shall promptly commence and thereafter prosecute
diligently to completion the restoration of the remainder of Lessee's
improvements located on (or constituting a part of) the Leased Premises to an
economically viable unit with at least as good workmanship and quality as
existed prior to the taking. In the event of a partial taking of the Leased
Premises, Authority shall be entitled to receive and retain the award for the
portion of the Leased Premises taken. In addition, upon a partial taking, the
annual rental payable during the remainder of the term of this lease (after the
condemning authority takes lawful possession of the portion taken) shall be
reduced proportionally, giving due regard to the relative value of the portion
of the Leased Premises taken as compared to the remainder thereof.
Section 14.03 Notice of Proposed Taking
-------------------------
Lessee and Authority shall immediately notify the other of any proposed
taking by condemnation of the Leased Premises.
ARTICLE XV
QUIET ENJOYMENT
---------------
Lessee, on paying the rent and all other sums called for herein and
performing all of Lessee's other obligations contained herein, shall and may
peaceably and quietly have, hold, occupy, use and enjoy the Leased Premises
during the term of this lease, subject to the provisions of this lease.
Authority agrees to warrant and forever defend Lessee's right to occupancy of
the Leased Premises against the claims of any and all persons whomsoever
lawfully claiming the same or any part thereof, by, through or under Authority
(but not otherwise) subject to the provisions of this lease, all matters of
record in Nueces County, Texas, and any unrecorded easements or licenses
executed by Authority to the extent the foregoing are validly existing and
applicable to the Leased Premises.
ARTICLE XVI
ILLEGALITY OF PURPOSE
---------------------
If at any time during the term of this lease or if during any extension
hereof, the purpose described in Section 4. 01 of this lease is declared to be
illegal either by an act of the State of Texas or the Congress of the United
States, this lease shall terminate and neither party shall have any future
obligation under this lease.
ARTICLE XVII
COMMENCEMENT DATE OF LEASE
--------------------------
The term of this lease shall commence ten days after the completion of
improvements, herein defined as "completion date", which event shall be
conclusively determined to have occurred as "completion of improvements".
18
<PAGE>
ARTICLE XVIII
GENERAL PROVISIONS
------------------
Section 18.01 Inspection
----------
Lessee shall permit Authority and Authority's agents, representatives
or employees to enter on the Leased Premises or any vessel operated by Lessee at
the Leased Premises for the purpose of inspection, to determine whether Lessee
is in compliance with the terms of this lease, for purposes of maintaining,
repairing or altering the premises, or for the purposes of showing the Leased
Premises to prospective lessees, purchasers, mortgagees or beneficiaries under
deeds of trust.
In an emergency, Authority, its agents, servants and employees may use
any means to open any gate or door into or in the Leased Premises without any
liability therefor. Entry into the Leased Premises by Authority for any purpose
permitted herein shall not constitute a trespass or an eviction (constructive or
otherwise), or entitle Lessee to any abatement or reduction of rent, or
constitute grounds for any claim (and Lessee hereby waives any claim) for
damages for any injury to or interference with Lessee's business, for loss of
occupancy or quiet enjoyment or for consequential damages.
Section 18.02 No Partnership
--------------
The relationship between Authority and Lessee at all times shall remain
solely that of landlord and tenant and not be deemed a partnership or joint
venture.
Section 18.03 No Waiver
---------
No waiver by Authority of any default or breach of any covenant,
condition or stipulation herein contained shall be treated as a waiver of any
subsequent default or breach of the same or any other covenant, condition or
stipulation hereof.
ARTICLE XVIV
MISCELLANEOUS
-------------
Section 19.01 Payents and Notices
-------------------
All payments, notices, demands or request from Lessee to Authority
shall be given to Authority, Attention: Executive Director, P.O. Box 1541,
Corpus Christi, Texas, 78403, or at such other address as Authority shall
request in writing. All payments, notices, demands or requests from Authority to
Lessee shall be given to Lessee, at 3753 Howard Hughes Parkway, Ste. 200, Las
Vegas, Nevada 89109 or at such other address as Lessee shall request in writing.
Section 19.02 Parties Bound
-------------
19
<PAGE>
This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns where assignment is permitted by this
agreement.
Section 19.03 Applicable Law
--------------
This agreement shall be construed under and in accordance with the laws
of the State of Texas and when applicable the Shipping Act of 1916 and the
Shipping Act of 1984, and all obligations of the parties created hereunder are
performable in Nueces County, Texas.
Section 19.04 Legal Construction
------------------
In case any one or more of the provisions contained in this agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision thereof and this agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been contained herein.
Section 19.05 Time of Essence
---------------
Time is of the essence with respect to each date or time specified in
this Lease by which an event is to occur.
Section 19.06 Amendment
---------
No amendment, modification or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and
duly executed by the parties hereto.
Section 19.07 Rights and Remedies Cumulative
------------------------------
The rights and remedies provided by this lease agreement are
cumulative, and the use of any one right or remedy by either party shall not
preclude or waive its right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the parties may have by law,
statute, ordinance or otherwise.
Section 19.08 Attorneys' Fees
---------------
In the event Authority or Lessee breaches any of the terms of this
agreement and the party not in default employs attorneys to protect or enforce
its rights hereunder and prevails, then the defaulting party agrees to, pay the
reasonable attorneys' fees incurred by the prevailing party.
Section 19.09 Captions
--------
All captions in this lease are for reference and convenience only and
shall not modify or affect the provisions of this lease in any manner.
20
<PAGE>
Section 19.10 Public Disclosure
-----------------
Authority is a governmental authority subject to the requirements of
the Texas Open Meetings Act and the Texas Open Records Act (Tex. Rev. Civ. Stat.
Ann. arts. 6252-17 and 17a, Vernon 1987), and as such Authority is required to
disclose to the public (upon request) this lease and certain other information
and documents relating to the consummation of the transactions contemplated
hereby. In this regard, Lessee agrees that the disclosure of this lease or any
other information or materials related to the consummation of the transactions
contemplated hereby to the public by Authority as required by the Texas Open
Meetings Act, Texas Open Records Act or any other law will not expose Authority
(or any party acting by, through or under Authority) to any claim, liability or
action by Lessee.
Section 19.11 Severability
------------
This lease is intended to be performed in accordance with and only to
the extent permitted by all statutes and laws. If any provision of this lease or
the application thereof to any person or circumstance shall, for any reason and
to any extent be invalid or unenforceable, but the extent of the invalidity or
unenforceability does not destroy the basis of the bargain between the parties
as contained herein, the remainder of this lease and the application of such
provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Section 19.12 Brokers
-------
Lessee hereby warrants and represents unto Authority that it has not
incurred or authorized any brokerage commission, finder's fees or similar
payments in connection with this lease, and agrees to defend, indemnify and hold
Authority harmless from and against any claim for brokerage commission, finder's
fees or similar payment arising by virtue of authorization by, through or under
Lessee in connection with this lease.
Section 19.13 Authority
---------
The person executing this lease on behalf of the Lessee personally
warrants and represents unto Authority that (a) (if applicable) Lessee is a duly
organized and existing legal entity, in good standing in the State of Texas, (b)
Lessee has full right and authority to execute, deliver and perform this lease,
(c) the person executing this lease on behalf of Lessee was authorized to do so,
and (d) upon request of Authority, such person will deliver to Authority
satisfactory evidence of his or her authority to execute this lease on behalf of
Lessee.
Section 19.14 Recording
---------
Neither this lease (including any exhibit hereto) nor any memorandum
shall be recorded without the prior written consent of Authority.
Section 19.15 Interpretation
--------------
21
<PAGE>
Both Authority and Lessee and their respective legal counsel have
reviewed and have participated in the preparation of this lease. Accordingly, no
presumption will apply in favor of either Authority or Lessee in
the-interpretation of this lease or in the resolution of the ambiguity of any
provision hereof.
Section 19.16 Entire Agreement
----------------
This agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings or written or oral agreements
between the parties respecting the within subject matter.
22
<PAGE>
IN TESTIMONY WHEREOF, this lease is executed in two duplicate
originals, either of which shall be deemed to be an original, at Corpus Christi,
Texas, on the date first above mentioned.
PORT OF CORPUS CHRISTI AUTHORITY
OF NUECES COUNTY, TEXAS
By: /s/ John P. LaRue
---------------------------------
John P. LaRue
Executive Director
"Authority"
CORPUS CHRISTI DAY CRUISE, L.L.C.
By: /s/ Martin R. Gross
--------------------------------
Martin R. Gross, President
of Viva Gaming & Resorts,
Inc., as Manager
"Lessee"
23
<PAGE>
STATE OF TEXAS ss.
ss.
COUNTY OF NUECES ss.
This instrument was acknowledged before me on the 3rd day of
April, 2000, by John P. LaRue, as Executive Director of the Port of Corpus
Christi Authority of Nueces County, Texas.
/s/ Sherry L. Tower
--------------------------------
Notary Public, State of Texas
SEAL
Typed or Printed Name: Sherry L. Tower
------------------------------
My commission expires: 6/23/03
------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF NUECES ss.
This instrument was acknowledged before me on the 28th day of
March, 2000, by Martin R. Gross, President of Corpus Christi Day Cruise,
L.L.C.
/s/ Patricia A. Quinn
---------------------------------------------------------
Notary Public, State of
SEAL
Typed or Printed Name: Patricia A. Quinn
----------------------------------
My commission expires: July 17, 2000
----------------------------------
24
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE INTERIM
FINANCIAL STATEMENTS OF VIVA GAMING & RESORTS INC. FOR THE THREE MONTH PERIOD
ENDED MARCH 31, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 837736
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1026397
<PP&E> 15625
<DEPRECIATION> (1126)
<TOTAL-ASSETS> 1040896
<CURRENT-LIABILITIES> 215436
<BONDS> 0
0
0
<COMMON> 6934
<OTHER-SE> 818526
<TOTAL-LIABILITY-AND-EQUITY> 1040896
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 338738
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (334382)
<INCOME-TAX> 0
<INCOME-CONTINUING> (334382)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (334382)
<EPS-BASIC> (0.05)
<EPS-DILUTED> (0.05)
</TABLE>
