AMENDMENT 1999-2 TO GROUND LEASE
This Amendment 1999-2 to Ground Lease is made and entered into as of the
3rd day of September, 1999 by and between Ameristar Casino Council Bluffs,
Inc., an Iowa corporation, with an address of 0000 Xxxxx Xxxx, Xxxxxxx Xxxxxx,
Xxxx 00000 ("Ameristar") and Council Bluffs Hotel Associates, L.C., an Iowa
limited liability company, with an address of 0 Xxxxx Xxxxx Xxxxxx, Xxxxx
Xxxxxxx, Xxxx 00000 ("Xxxxxxx").
RECITALS
A. Ameristar, as ground lessor, and Xxxxxxx Hotel Corporation, as the
original ground lessee, entered into an Amended and Restated Ground Lease
Agreement dated September 7, 1995 (the "Original Ground Lease"). Xxxxxxx Hotel
Corporation assigned its interest in the Original Ground Lease to Xxxxxxx.
Xxxxxxx constructed and continues to operate a 140 room Holiday Inn franchise
hotel on the leased land (the "Hotel").
X. Xxxxxxx desired to expand the Hotel by up to fifty (50) rooms, for a
total of up to 190 rooms, and requested Ameristar's consent for such expansion.
The expansion required an increase in the footprint of the leased land under
the Ground Lease, an increase in the amount of indebtedness that may be secured
by the leased land, and certain other changes to the Ground Lease.
C. Ameristar consented to such expansion, including an increase in the
leased land, and the parties entered into that certain Amendment to Ground
Lease dated as of May 21, 1999 (the Original Lease, as amended by all
subsequent amendments including the aforementioned Amendment to Ground Lease is
hereinafter referred to as the "Ground Lease" and all other capitalized terms
not otherwise defined herein shall have the meanings defined in the Ground
Lease).
D. In connection with obtaining the financing for the Hotel expansion,
Xxxxxxx has discovered that a provision of the Ground Lease granting to
Ameristar the exclusive option to acquire the Leased Land from the Leasehold
Lender if the Leasehold Lender acquires Xxxxxxx'x interest in the Leased Land
by foreclosure or deed in lieu of foreclosure should have been amended to
reflect the increased amount of indebtedness that may be secured by the Leased
Land but such amendment was overlooked.
NOW THEREFORE, for and in consideration of the mutual covenants,
conditions and promises contained herein, Ameristar and Xxxxxxx agree to
further amend the Ground Lease as follows:
1. AMENDMENT TO SECTION 4.2. Section 4.2 of the Ground Lease is hereby
amended by substituting $9,000,000 for $6,000,000 in the first place it appears
therein.
2. AMENDMENT TO SECTION 4.5(f)(vii)(1). Section 4.5(f)(vii)(l) of the
Ground Lease is hereby amended by eliminating the paragraph in its entirety and
substituting the following:
(1) In the event Leasehold Lender acquires the Property
Interests (such capitalized term used here, and hereafter, shall
have the same meaning as set forth in Section 11.11 of this
Lease), or any portion thereof, by foreclosure or deed in lieu
of foreclosure, Ameristar shall have the exclusive option for a
period of sixty (60) days from such notice, but not the
obligation, to acquire such interests from Leasehold Lender for
the outstanding principal amount of the Leasehold Lien on the
Property Interests which was satisfied by the foreclosure or
deed in lieu of foreclosure (not to exceed the greater of x)
$9,000,000 or y) 70% of the appraised value of such Property
Interests (or portion thereof that has been acquired by
Leasehold Lender)), plus accrued interest and costs of
collection, including foreclosure costs attributable to the
Leasehold Lien on the Property Interests (the "Option Price").
3. AMENDMENT TO SECTION 4.5(f)(vii)(2). Section 4.5(f)(vii)(2) of the
Ground Lease is hereby amended by eliminating the paragraph in its entirety and
substituting the following:
(2) In the event Leasehold Lender shall commence a foreclosure
proceeding and at any time prior to the foreclosure sale and
provided Ameristar has acquired, forfeited or terminated all of
Xxxxxxx'x right, title and interest in the Property Interests,
or any portion thereof, then at any time prior to the
foreclosure sale and upon presentation to Leasehold Lender of
reasonable evidence that it has acquired, forfeited or
terminated Xxxxxxx'x interest in such Property Interests free of
any lien, adverse interest or claim including rights available
to Xxxxxxx in bankruptcy, Ameristar shall have the right to
bring all defaults current, including cost of collection and
foreclosure costs attributable to the Leasehold Lien on such
Property Interests, and to assume the Leasehold Lien for its
then unpaid principal balance attributable to such Property
Interests, said principal balance not to exceed the Aggregate
Principal Amount, together with pro-rata interest, attorneys'
fees and costs of collection attributable to such Property
Interests. Ameristar, at its cost and expense, will execute
such "non-recourse" assumption documents as Leasehold Lender may
reasonably require to confirm the non-recourse assumption of the
Leasehold Lien and deliver to Leasehold Lender an endorsement to
Leasehold Lender's loan policy of title insurance insuring
Ameristar to be the owner of the leasehold interest in the
Ground Lease free of any lien, adverse interest or claim
including rights available to Xxxxxxx in bankruptcy and
continuing the insured priority of the Leasehold Lien on such
Property Interests (to the extent constituting real estate or
interests in real estate and covered under the Leasehold
Lender's existing loan policy) free of any exceptions to
coverage other than as set forth in Leasehold Lender's existing
loan policy. To the extent the Leasehold Lien encumbers
property other than such Property Interests, upon such
assumption, Leasehold Lender agrees to bifurcate and separate
the Leasehold Lien documents into two separate sets of
documents, one encumbering and creating a security interest upon
such Property interests and the other encumbering and creating a
security interest in the other property and provided that the
amount of the Leasehold Lien on such Property Interests will not
exceed the Aggregate
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Principal Amount in principal indebtedness,
together with pro-rata interest, attorneys' fees and costs of
collection attributable to such Property Interests. The
bifurcated loan applicable to the Property interests shall have
the same interest rate, amortization period, and remaining
installment payment periods as under the Leasehold Lien. This
right is subject to Leasehold Lender receiving an opinion
satisfactory to it from Iowa counsel acceptable to Leasehold
Lender that such bifurcation may accomplish the aforementioned
results under Iowa law without affecting the Leasehold Lien
security (other than the bifurcation) and does not create any
impediment or obstacle to exercising the remedies available to
Leasehold Lender under the Leasehold Lien documents. This right
is personal only to Ameristar under the Ground Lease (and to
Ameristar's mortgage lender) and shall not benefit any other
party, including Xxxxxxx, its successors and assigns.
4. AMENDMENT TO SECTION 8.2(g). Section 8.2(g) of the Ground Lease is
hereby amended by eliminating the paragraph in its entirety and substituting
the following:
(g) TERMINATE XXXXXXX WITH PAYOFF OR ASSUMPTION OF LEASEHOLD LIEN.
Terminate, forfeit or acquire Xxxxxxx'x interest in this Lease, the Leased
Land and those other Property Interests to which the Leasehold Lien
applies, free of any lien, adverse interest or claim including rights
available to Xxxxxxx in bankruptcy, conditioned upon Ameristar
concurrently therewith doing one of the following:
(i) pay off in full Leasehold Lender for the then outstanding
aggregate principal amount of the Leasehold Lien attributable to
such Property Interests (not to exceed the greater of x)
$9,000,000.00 or .y) 70% of the appraised value of the Property
Interests to which the Leasehold Lien applies), plus accrued
interest and costs attributable to the Leasehold Lien on such
Property Interests; or
(ii) provided that Ameristar obtains an opinion of the Iowa
legal counsel acceptable to Leasehold Lender that no "merger" of
the leasehold interest in the Leased Land and such other
Property Interests will occur, novate and substitute Ameristar
itself as lessee under this Lease, and assume the Leasehold Lien
for its then unpaid principal balance attributable to the Leased
Land and those other Property Interests to which the Leasehold
Lien applies, said principal balance not to exceed the Aggregate
Principal Amount as defined in Section 4.2 above, together with
accrued interest, attorneys' fees and costs of collection
attributable to the Leasehold Lien on the Leased Land and such
Property Interests. In such event, Ameristar, at its cost and
expense, will execute such "nonrecourse" assumption documents as
Leasehold Lender may reasonably require to confirm the
nonrecourse assumption of the Leasehold Lien and deliver to
Leasehold Lender an endorsement to Leasehold Lender's loan
policy of title insurance insuring Ameristar to be the owner of
the leasehold interest in the Ground Lease free of any lien,
adverse interest or claim including rights available to Xxxxxxx
in bankruptcy and continuing the insured priority of the
Leasehold Lien on such Property Interests (to the extent
constituting real estate or interests in real estate and covered
under the Leasehold Lender's existing loan policy) free of any
exceptions to coverage other than as set forth in Leasehold
Lender's existing loan policy. To the extent the Leasehold Lien
Encumbers property other than the Leased Land
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and such other
Property Interests, then upon such assumption, Leasehold Lender
agrees to bifurcate and separate the Leasehold Lien documents
into two separate sets of documents, one encumbering and
creating a security interest upon the Leased Land and such other
Property interests and the other encumbering and creating a
security interest in the other property, provided that the
amount of the Leasehold Lien on the Leased Land and such other
Property Interests will not exceed the Aggregate Principal
Amount in principal indebtedness, together with pro-rata
interest, attorneys' fees and costs of collection attributable
to such Property Interests. The bifurcated loan applicable to
the Property Interests shall have the same interest rate,
amortization period, and remaining installment payment periods
as under the Leasehold Lien. This right is subject to Leasehold
Lender receiving an opinion satisfactory to it from Iowa counsel
acceptable to Leasehold Lender that such bifurcation may
accomplish the aforementioned results under Iowa law without
affecting the Leasehold Lien security (other than the
bifurcation) and does not create any impediment or obstacle to
exercising the remedies available to Leasehold Lender under the
Leasehold Lien documents. This right is personal only to
Ameristar under the Ground Lease (and to Ameristar's mortgage
lender) and shall not benefit any other party, including
Xxxxxxx, its successors and assigns. This right is personal
only to Ameristar under the Ground Lease (and to Ameristar's
mortgage lender) and shall not benefit any other party,
including Xxxxxxx, its successors and assigns.
5. Continuing Effect. Except as specifically amended herein, the terms
of the Ground Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
Ameristar: Xxxxxxx:
Ameristar Casino Council Bluffs, Inc., Council Bluffs Hotel Associates, L.C.,
an Iowa corporation an Iowa limited liability company
By: /s/Xxxxxx Xxxxxxxxxx By: /s/Xxxxxx X. Xxxxxxx
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Its Vice President Its Member
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