Exhibit 10.4
LEASE AND AIR RIGHTS AGREEMENT
THIS AGREEMENT (herein caned the "LEASE"), made on the 18th day of
November, 2003, by and between the CITY OF BILOXI, MISSISSIPPI, a municipal
corporation organized and existing under the laws of the State of Mississippi
(herein caned "CITY" or "LANDLORD"), PREMIER ENTERTAINMENT, LLC, a Mississippi
Limited Liability Company, and/or PREMIER ENTERTAINMENT BILOXI LLC, the survivor
company in the impending merger of PREMIER ENTERTAINMENT, LLC with PREMIER
ENTERTAINMENT BILOXI LLC, a Delaware Limited Liability Company (herein called
"PREMIER" or "TENANT"), whose permanent resident addresses are declared to be:
for LANDLORD: City of Biloxi City of Biloxi
000 Xxxxxxx Xxxxxx Xx X.X. Xxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
and for TENANT: Premier Entertainment, LLC
00000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
FOR AND IN CONSIDERATION OF the mutual covenants and promises contained
herein, PREMIER and the CITY hereby covenant and agree as follows:
SECTION 1
DEFINED TERMS
For purposes of interpretation and implementation of this agreement, the
following terms shall have the designated definitions or meanings:
"Additional Rent" -
Additional Rent shall consist of all monetary charges, assessments,
and liabilities of the TENANT which are assessed or incurred pursuant
to this agreement, whether designated as "Additional Rent" or
otherwise, including but not limited to those described in Section 7;
"Airspace" -
the column of airspace directly above the Lameuse Street Parcel
(depicted as Parcel 1 on Exhibit "H") and the Service Road Parcel
(depicted as Parcels 3 and 4 on Exhibit "H") and certain support
structure rights set out in Section 3; all subject to the restrictions
contained in Section 3;
"Basic Rent" -
Basic Rent shall be defined as that amount or those amounts identified
in Section 6;
"CITY" -
CITY shall mean the CITY of Biloxi, Mississippi, its successors or
assigns;
"Improvements" -
Improvements shall refer to the parking garage and pedestrian walkover
which are permitted to be constructed on the Lameuse Street Parcel,
Lameuse Street Parking Area, and Service Road Parcel and in the
Airspace as referenced in Section 3(B);
"Lameuse Street Parcel" -
the Lameuse Street Parcel shall mean the property described on Exhibit
"B" and depicted as Parcel on Exhibit "H";
"Lameuse Street Parking Area" -
Lameuse Street Parking Area shall mean that parcel described in
Exhibit "A", and depicted as Parcel 2 on Exhibit "H";
"LANDLORD" -
LANDLORD shall mean the CITY of Biloxi, Mississippi, it successors or
assigns;
"Leased Premises"-
the Leased Premises shall consist of that property described in
Section 2(A) and depicted in Exhibit "A";
"PREMIER" -
PREMIER shall mean PREMIER Entertainment, LLC, its successors or
assigns;
"Service Road Parcel" -
the Service Road Parcel shall consist of that property described in
Section 3(A) and depicted in Exhibit "C", Part 1 and Part 2; as
depicted as Parcels 3 and 4 on Exhibit "H";
"TENANT" -
TENANT shall mean PREMIER Entertainment, LLC, its successors or
assigns;
SECTION 2
LEASED PREMISES AND EASEMENTS
A. In consideration of the rents hereinafter set out to be paid by
TENANT, and in further consideration of the mutual covenants and promises
hereinafter set out to be observed and performed by TENANT and LANDLORD,
LANDLORD demises and leases to TENANT, and TENANT leases and rents from
LANDLORD, that certain real property and property rights which is located in the
CITY of Biloxi, Mississippi, and described more particularly as follows:
a) the Lameuse Street Parking Area described in Exhibit "A"; and,
b) the Airspace as defined herein.
B. TENANT has inspected the Leased Premises and accepts same in its
present condition. LANDLORD makes no warranty regarding the condition of the
Leased Premises and makes no covenant to alter, repair, or construct any
improvements on the Leased Premises. The
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taking of possession of the Leased Premises by TENANT shall be conclusive
evidence that the Leased Premises were in good and satisfactory condition in
accordance with the terms of this Lease at the time such possession was taken.
SECTION 3
USE OF LEASED PREMISES AND AIRSPACE ABOVE ADDITIONAL AREAS
A. For the same consideration, PREMIER's use and occupation of the Leased
Premises shall include the use of airspace, as well as the ground space
thereunder solely to the extent necessary to construct and maintain support
columns for improvements in the airspace; provided, however, location and
placement of said columns and support structures upon the ground below the
Airspace is subject to approval of the CITY in order to ensure safe and
practical configuration of the public roads and parking spaces to be created
below the Airspace:
LAMEUSE STREET PARCEL: This parcel shall include that area bounded on the
north by the south margin of U.S. Highway 90; on the east by the Leased Premises
as defined above; on the south by the westward extension of the north bulkhead
of the Commercial Fishermen's Harbor; and on the west by the west margin of Lame
use Street as extended south of U.S. Highway 90; all of which is described with
more particularity in the survey designated as Exhibit "B", which is attached
hereto and made a part hereof; and,
SERVICE ROAD PARCEL: This parcel shall include that area bounded on the
east by the west margin of Main Street as extended south from U.S. Highway 90;
on the south by the north bulkhead of the Commercial Fishermen's Harbor; on the
west by the east margin of Lameuse Street as extended south; and on the north by
the property of PREMIER, after the conveyance to the CITY of that portion of the
Service Road Parcel described in Exhibit "C", Part 2 (designated 'Parcel 4' on
Exhibit "H") as contemplated by Section 7F, all of which is described with more
particularity in the survey designated as Exhibit "C" (parts 1 and 2), which is
attached hereto and made a part hereof.
In order to ensure PREMIER's continued right to the non-exclusive use of
the roadways as set out above, for maintenance of the support columns, the CITY
hereby grants unto PREMIER and its employees, tenants, agents, successors, and
assigns, a non-exclusive easement for the term of this Lease, and any renewals
or extensions thereof, over the roadways on the Lameuse Street Parcel and the
Service Road Parcel, for the maintenance and repair of the support columns and
other support structure located thereon. In addition, PREMIER and its employees,
tenants, agents, successors, assigns, and invitees shall have the same rights of
ingress and egress over said roadways as the general public as long as those
roadways remain public streets; and in the event that the public road in the
Lameuse Street Parcel, the public in the Service Road Parcel, or the public road
in that portion of Lameuse Street or Lameuse Street projected South of the
Lameuse Street Parcel (depicted as parcel 6 on Exhibit "H", and described in
Exhibit "J") shall be vacated or cease to be designated and used as a public
road by the CITY, then PREMIER is further granted a non-exclusive easement for
the benefit of its employees, tenants, agents, successors, assigns, and
invitees, for the term of this Lease, and any renewals or extensions thereof,
for the purpose of ingress and egress across any such roadway so abandoned or
vacated.
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B. The Airspace will be used exclusively for constructing, operating,
maintaining, and repairing a parking garage and elevated bridge in conjunction
with PREMIER's gaming enterprise (hereinafter referred to as the
"Improvements"). All such Improvements shall have a minimum clearance or bottom
floor elevation of 14 feet above the improved surface below it, except for
support columns as are reasonable and necessary to support the improvements
above in accordance with engineering and construction standards. For the purpose
of this Lease, "improved surface below it" as used herein shall mean the surface
grade of the respective roadways as first constructed in conjunction with the
contemplated improvements. Any change in the authorized use of the Airspace
shall require prior written approval of the CITY. PREMIER covenants that no
flammable, explosive, or hazardous material will be manufactured or stored in
the aforesaid described areas (excluding fuel in fuel tanks of parked vehicles).
C. PREMIER will have the sole responsibility for developing,
constructing, operating, maintaining, and repairing said Improvements over the
Airspace, and shall do so at its sole cost and expense. PREMIER may construct
and maintain columns or support structures on the surface under the Airspace for
its improvements located in the Airspace; provided, however, that such support
structures shall be located in a manner that will not degrade or diminish the
structural integrity of the bulkheads surrounding Commercial Fishermen's Harbor
nor obstruct the right of way and parking spaces in the Service Road Parcel.
Should PREMIER desire to erect a support structure in a location that is
inconsistent with maintaining the existing structural integrity of said bulkhead
or which may be an obstruction to the right of way and parking spaces for the
Service Road Parcel, then PREMIER must obtain prior approval of the CITY which,
in its sole discretion, shall have the option of either requiring the relocation
of said support structure or permitting the placement of the support structure
provided remedial work, repairs, and preventive measures (to protect said
bulkhead or preserve the right of way and parking spaces) are performed to the
specifications and satisfaction of the CITY. Although support structures may
encroach on the 40 foot right of way of Lameuse Street, the road bed which is
available for use by automobiles after construction of PREMIER's parking garage
and casino resort related facilities shall continue to have the same width, or
greater, currently available for vehicular traffic. The specific location of the
placement of support structures within this right of way must be approved by the
CITY.
D. PREMIER hereby warrants and guarantees that should the process of
constructing a support structure (whether constructed according to the original
plans or according to modifications approved by the CITY) cause damage to or
weaken the tie backs or structural integrity of said bulkhead or any other
improvement in the Commercial Fishermen's Harbor, then PREMIER shall repair or
cause to be repaired at its sale cost and expense such bulkhead or improvement,
and shall indemnify, defend, and hold harmless the CITY from any claim for
monetary damages, including attorney's fees, based upon the construction of the
Improvements.
E. The design for said Improvements shall comply substantially with the
plans provided to and reviewed and approved by the CITY in conjunction with
PREMIER's Master Plan for its gaming enterprise. Any significant revision in the
design or construction of the Improvements from these plans and specifications
must be approved by the CITY.
F. Until such time as PREMIER begins construction on its parking garage
to be located on the Leased Premises, the Leased Premises may continue to be
used by the public for
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parking for the Commercial Fisherman's Harbor. After construction begins,
PREMIER shall be responsible for organizing and phasing construction in such a
way that access to and parking for the Commercial Fishermen's Harbor shall not
be interrupted and shall be maintained at the present levels to the maximum
extent possible. PREMIER may provide alternate access and parking on property
that it owns adjacent to and west of Lame use Street extended, and shall provide
such alternate parking at all times that existing parking for the Fisherman's
Harbor must be closed.
G. PREMIER shall maintain a total of 50 parking spaces for the exclusive
use of persons utilizing the Commercial Fishermen's Harbor. These parking spaces
shall be of a minimum width of nine feet and length of nineteen feet, and shall
include two parking spaces of dimensions which meet or exceed all local, state,
and federal requirements for the accommodation of parking for the handicapped.
They shall be located at ground level within the area bounded on the east by the
west margin of Main Street extended, on the west by the east margin of Lameuse
Street extended, on the south by the north bulkhead of the Commercial
Fishermen's Harbor, and on the north by the property of PREMIER. All of the
parking spaces along the north bulkhead of the Harbor shall be utilized for this
purpose, and the remaining spaces needed to satisfy this requirement shall be
located on the north margin of the Service Road Parcel. The CITY agrees to
dedicate all of the parking spaces along the North bulkhead of the Harbor for
this purpose, as well as the remaining spaces needed to satisfy this requirement
which are located on the North margin of the Service Road Parcel. The parties
agree that as many parking spaces as can be reasonably and safely configured in
those areas shall be so located, that they shall be dedicated and marked for the
exclusive use of the Commercial Fisherman's Harbor, and that they shall be
credited toward the fifty (50) parking spaces required herein. If in the
aggregate they do not total fifty (50) spaces, then PREMIER agrees to provide
the remaining parking spaces within its parking facilities in close proximity to
the Harbor.
A sidewalk, a minimum width of five (5) feet, shall be maintained along the
North side of the harbor bulkhead from the East end of the North face of said
harbor bulkhead to the West end. Should PREMIER fail to provide or maintain said
parking spaces and sidewalk in accordance with specifications approved or
directed by the CITY, then the CITY may give PREMIER thirty (30) days' written
notice of the deficiency or default. If PREMIER shall fail to cure the
deficiency or default to the satisfaction of the CITY within said thirty (30)
day period, then the CITY may provide or maintain said parking spaces and the
cost thereof shall be due and payable as Additional Rent within thirty (30) days
after receiving written notification from the CITY of the CITY's expenditure.
H. PREMIER shall erect and maintain signage which clearly delineates at
least the number of parking spaces specified herein for the exclusive use of the
public using or visiting the Commercial Fishermen's Harbor. The type, size, and
location of this signage, as well as the number of signs, must be approved by
the CITY. Should PREMIER fail to provide or maintain such signage in accordance
with specifications approved or directed by the CITY, then the CITY may give
PREMIER 30 days written notice of the deficiency or default. If PREMIER shall
fail to cure the deficiency or default to the satisfaction of the CITY within
said 30 day period, then the CITY may provide or maintain such signage and the
cost thereof shall be due and payable as Additional Rent within 30 days after
receiving written notification from the CITY of the CITY's expenditure.
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I. PREMIER shall provide continuous security for those parking spaces as
well as that part of the CITY's property which is covered by PREMIER's
structures pursuant to air rights granted by the CITY. It shall be the duty of
PREMIER to direct its security personnel to enforce the reservation of the
parking spaces for the harbor by requiring its patrons to vacate such parking
space and remove their vehicle to PREMIER's parking facility. Should PREMIER
fail to provide or maintain said security services in accordance with this
agreement, then the CITY may give PREMIER 30 days written notice of the
deficiency or default. If PREMIER shall fail to cure the deficiency or default
to the satisfaction of the CITY within said 30 day period, then the CITY may
provide or maintain such security services and the cost thereof shall be due and
payable as Additional Rent within 30 days after receiving written notification
from the CITY of the CITY's expenditure.
J. In the event PREMIER elects to exercise its option to acquire the
interest of Xxx and Xxxxxxxxx Xxxxxx under the Lease, LANDLORD consents to the
assignment of the lease for the Fishermen's Harbor Restaurant from Xxx and
Xxxxxxxxx Xxxxxx to PREMIER, and upon such assignment PREMIER shall continue
with all of the rights and obligations of the TENANT under that lease except as
hereinafter provided. The CITY agrees that PREMIER may, at its own expense,
remove the improvements at that site by paying the CITY a sum to be determined
by appraisal as required by law as compensation for the loss of the CITY's
asset, payable in five (5) equal annual installments, plus interest accruing at
the rate of 6% per annum, beginning on the first day of the month after a
demolition permit is issued. If PREMIER elects to remove the structure, the CITY
agrees to terminate said lease and dedicate the space for public parking and
turn around, and PREMIER agrees to make, at its own expense, all improvements
necessary to utilize and maintain the space in that manner.
SECTION 4
TERM AND COMMENCEMENT
A. The primary terms of this Lease shall commence on December 15, 2003
(the "Commencement Date"), and shall continue for forty (40) years. TENANT may
extend this Lease for one (1) extended term of twenty-five (25) years by giving
LANDLORD written notice of the intent to exercise such option. Such notice must
be received by LANDLORD at least six (6) months prior to the termination of each
option period thereafter for the exercise of each succeeding option period,
provided, however.
B. Upon the execution date, PREMIER shall be liable for payment of all
sums and charges which become due hereunder (including but not limited to Basic
Rent, and all other sums and charges which are required to be paid by PREMIER
hereunder) in accordance with specific provisions contained herein addressing
the timing of rental payments. All sums payable hereunder other than Basic Rent
amounts shall be due and payable within a reasonable time, not to exceed thirty
(30) days after receipt of an invoice as provided for herein or as otherwise
specified herein.
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SECTION 5
EXCUSE OF PERFORMANCE - FORCE MAJEURE
Anything elsewhere in this Lease to the contrary notwithstanding, neither
party shall be deemed in default with respect to the performance of any of the
non-monetary obligations, terms, covenants and conditions of this Lease to be
performed by it if any failure of its performance shall be due to any Force
Majeure (which is defined as any Act of God, strike, war, rebellion,
hostilities, military or usurped power, terrorism, sabotage, government
regulations or controls, inability to obtain any material through Act of God, or
any other cause whatever beyond the control of that party), and the time for
performance by that party shall be extended by the period of delay resulting
from or due to any above said causes.
SECTION 6
BASIC RENT
A. For the first year of the term of the Lease, the Basic Rent shall be
$1.00. For the next four (4) years of the Lease, Basic Rent shall be $12,500.00
per month, and the first such payment shall be due on the first day of the
twelfth month following the Commencement Date. Thereafter, rent shall be due on
the first day of each month (i.e. Commencement Date is December 15, 2003,
therefore, the first Basic Rent payment is due on December 1, 2004). Basic Rent
shall increase beginning on the fifth anniversary date of the execution of the
Lease and continuing on each fifth anniversary date that follows for the
remainder of the term of the Lease. The amount of Basic Rent after that increase
shall be the Basic Rent payable at the end of the previous five (5) year period
(being $12,500.00 per month for the first such adjustment) increased by the
increase in the Consumer Price Index, all Urban Consumers from the "South Urban"
area (base period 1982-84 = 100), as promulgated by the U.S. Department of Labor
or successor entity, for the previous five year period.
B. All rental payments provided above shall be payable to LANDLORD at
CITY Hall, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx, 00000, without any demand
therefor, and without any deduction or set-off whatsoever. LANDLORD may charge
interest of all past-due payments of base rental in accordance with the
provisions of Section 36.
SECTION 7
ADDITIONAL RENT AND OTHER OBLIGATIONS OF THE TENANT
A. Section 7 A is deleted in its entirety.
B. TENANT shall pay all other sums of money or charges required to be
paid by TENANT to LANDLORD under this Lease, whether or not the same be
designated "rent." These amounts and charges shall be due and payable within a
reasonable time, not to exceed thirty (30) days after receipt by the TENANT of
an invoice therefore (excluding "Basic Rent", which shall be due and payable in
the same time and manner provided in Section 6, above). All sums of money or
other charges payable by TENANT under this section shall be payable at such
place as is set forth in this Lease, without any set-off or deduction
whatsoever. LANDLORD may charge interest on all such past-due payments owed by
TENANT, regardless of whether they are designated as Additional Rent, in
accordance with the provisions of this Lease.
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C. As an additional obligation, TENANT, at its sole expense, shall
maintain Lameuse Street as extended south from the south margin of X.X. Xxxxxxx
00 to the bulkhead of the Commercial Fishermen's Harbor (near the harbor
master's structure).
D. As an additional obligation, TENANT, at its sole expense, shall
maintain Service Road Parcel which extends from the east margin of Lameuse
Street extended to the west margin of Main Street extended.
E. As an additional obligation, TENANT, at its sole expense, shall widen
or cause to be widened Main Street as extended south from X.X. Xxxxxxx 00 to the
north bulkhead of the Commercial Fishermen's Harbor in order to align the west
margin of Xxxx Xxxxxx xxxxx xx X.X. Xxxxxxx 00 with the existing west margin of
Xxxx Xxxxxx xxxxx xx X.X. Xxxxxxx 00. TENANT shall convey to the CITY all
necessary right, title, and interest in the real property described in the
survey designated as Exhibit "E", as depicted as Parcel 8 on Exhibit "H", which
is attached hereto and made a part hereof, to enable the widened Main Street to
be a dedicated public street.
F. As an additional obligation, TENANT, at its sole expense, shall widen
or cause to be widened the Service Road Parcel from the west margin of Main
Street extended to the east margin of Lameuse Street extended. TENANT shall
convey to the CITY, subject to a reservation of a leasehold estate in the
Airspace conveyed to TENANT in this Lease, together with easements on ground
space for structural support purposes and easements as contemplated in Section
2A and 3A, all necessary right, title, and interest in the real property
described in the survey designated as Exhibit "D" as depicted as Parcel 4 on
Exhibit "H", which is attached hereto and made a part hereof, to enable the CITY
to dedicate the Service Road Parcel as described in the survey designated as
Exhibit "C" as a public street and public parking (subject to reservations for
harbor parking as provided herein).
G. As an additional obligation, TENANT, at its sole expense shall cause
all public utilities in the Leased Premises, the expanded portion of Main
Street, Lameuse Street south of US. Highway 90 and the widened the Service Road
Parcel to be relocated in order to permit the improvements contemplated by this
Lease. The relocation of all such utilities and the construction and widening of
the above referenced streets shall be performed subject to the inspection and
approval by the CITY and in accordance with existing standards for relocation
and construction of public utilities and streets. TENANT shall convey to the
CITY all necessary right, title, and interest in the real property described in
the survey designated as Exhibit "F" as depicted as Parcel 7 on Exhibit "H",
which is attached hereto and made a part hereof, for the relocation of traffic
signalization equipment caused by the widening of Main Street. Said relocation
shall be included in the expense of the widening of Main Street to be paid by
TENANT. Said signalization equipment shall be set back from X.X. Xxxxxxx 00 as
far as is reasonably possible, and must not obstruct the sidewalks adjacent to
said Highway or Main Street.
SECTION 8
PROPERTY TAXES
PREMIER shall be responsible for and shall pay before delinquency all
taxes, including special assessments, assessed during the term of this Lease
against PREMIER's leasehold
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interest in the Leased Premises and Airspace, against all improvements on the
Leased Premises and in the Airspace, and against personal property of any kind
placed in, upon or about the Leased Premises or in the Airspace by TENANT or its
licensees, concessionaires, assigns, and subtenants.
SECTION 9
LIMITS ON LIABILITY - INSURANCE
LANDLORD shall not be liable to TENANT or to any of its employees, agents,
invitees, visitors, or any other person whomsoever, for any damage to person or
damage to property on or about the Leased Premises or Airspace caused by the
negligence or misconduct of TENANT, its employees, licensees, concessionaires,
or any other person entering the Leased Premises or Airspace, either under
express or implied invitation of TENANT, or arising out of the use of the Leased
Premises or Airspace by TENANT, or arising out of the conduct of TENANT's
business therein, or arising out of any breach or default by TENANT in the
performance of its obligations hereunder, and TENANT hereby agrees to indemnify,
defend, and hold LANDLORD harmless from any loss, expense or claim, including
attorneys' fees, arising out of any damage or injury or claim for damage or
injury.
SECTION 10
PUBLIC LIABILITY INSURANCE
TENANT shall, during the entire term of this Lease and any extension
hereof, keep in full force and effect a policy of public liability and property
damage insurance with respect to the Leased Premises, the Airspace, the property
under the Airspace, and the business operated by TENANT and any subTENANTs of
TENANT on the Leased Premises and the Airspace in which the limits of public
liability shall not be less than One Million Dollars ($1,000,000.00) per person
and Three Million Dollars ($3,000,000.00) per incident and in which the property
damage liability shall be not less than One Hundred Thousand Dollars
($100,000.00). The policy shall insure against all claims, demands or actions
arising out of or in connection with the use and occupancy of the Leased
Premises, the Airspace, and the surface area under the Airspace by TENANT or its
employees, licensees, concessionaires, subTENANTs, or any other person entering
the Leased Premises or the Airspace either under express or implied invitation
of TENANT, or arising out of the use of the Leased Premises or the Airspace by
TENANT, its employees, licensees, concessionaires, subTENANTs, or any other
person or corporation by express or implied invitation of TENANT, or by the
condition of the Leased Premises or improvements located either therein or in
the Airspace. The policy shall name LANDLORD, any person, firms or corporations
designated by LANDLORD, and TENANT as insured and shall contain a clause that
the insurer will not cancel or change the insurance without first giving
LANDLORD ten (10) days' prior written notice. A copy of the policy or a
certificate of insurance shall be delivered to LANDLORD.
SECTION 11
FIRE AND CASUALTY INSURANCE
TENANT shall keep the improvements on the Leased Premises and the Airspace
insured throughout the term(s) of this Lease against loss or damage by fire and
such other risks as may
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be included in the broadest form of extended coverage insurance from time to
time available in such amounts sufficient to prevent LANDLORD from becoming a
co-insurer within the terms of applicable policies and, in any event, in an
amount not less than eighty percent (80%) of the then insurable value of the
improvements on the Leased Premises and Airspace. LANDLORD shall be named in all
such policies of insurance as a named insured as its interest may appear.
SECTION 12
TENANT SHALL DISCHARGE ALL LIENS
TENANT shall promptly pay all its contractors and materialmen, so as to
minimize the possibility of a lien attaching to the Leased Premises and
improvements occupying the Airspace; and should any such lien be made or filed,
TENANT shall bond against or discharge the same within ten (10) days after
written request by LANDLORD.
SECTION 13
USE OF LEASED PREMISES
A. TENANT shall not use, permit or suffer the use of the Leased Premises,
Airspace, or any part thereof for any purpose other than for parking facilities
(a parking garage and surface parking and elevated walkover) to be utilized in
conjunction with the TENANT's resort hotel facilities, either casino related or
otherwise, and those activities which are ancillary to a resort hotel, provided
that such use is also in compliance with applicable zoning laws; provided
further that gaming is not authorized on the property used to define the
Airspace or in the Airspace, nor shall gaming be authorized on the Leased
Premises (except to the extent hereinafter provided), and TENANT agrees that the
Leased Premises are leased exclusively for said business and commercial
purposes. Although gaming is not authorized on or from the Leased Premises,
TENANT may operate the commercial enterprises authorized by this Lease in
physical connection with or connection to its authorized gaming activities.
B. The CITY acknowledges that Lameuse Street south of US. Xxxxxxx 00 and
the Service Road Parcel will each have to be temporarily closed at various times
in order to ensure public safety when construction activities at those sites
require it. TENANT acknowledges that those two access routes are the only means
of vehicular access to the perimeter of Commercial Fishermen's Harbor. The CITY
agrees to work with TENANT in coordinating those temporary closings in order to
ensure public safety, however, TENANT shall not be permitted to temporarily
close off either road until a minimum often (10) days notice has been provided
to the CITY; further TENANT shall not be permitted to close both roads (Lameuse
Street south of Highway 90 and the Service Road Parcel) at the same time, but
shall alternate street closings to ensure continuous access to said harbor.
Pedestrian access to the north bulkhead of the harbor must be maintained at all
times.
SECTION 14
MAINTENANCE OF STRUCTURES; LANDLORD'S RIGHT TO INTERVENE
A. TENANT shall keep all structures in the Leased Premises and in the
property under the Air Spaces in good repair so as to be safe and present no
hazard or danger to users of
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the public rights of way and harbor facilities located under or adjacent to the
TENANT's structures.
B. If TENANT refuses or neglects to repair property as required hereunder
and to the reasonable satisfaction of LANDLORD as soon as reasonably possible
after written demand, LANDLORD may make such repairs without liability to TENANT
for any loss or damage that may accrue to TENANT's merchandise, fixtures or
other property or to TENANT's business by reason thereof; and upon completion
thereof, TENANT shall pay LANDLORD's cost for making such repairs, upon
presentation of a xxxx therefor, as additional rent. This provision shall be
construed as a right of LANDLORD and not an obligation. LANDLORD shall have the
option to exercise this right in its sole discretion or may elect any other
remedy available to it, but in no event shall this be construed as an obligation
of LANDLORD to any third party or subtenant of TEN ANT.
SECTION 15
SURRENDER OF LEASED PREMISES, TRADE FIXTURES, IMPROVEMENTS
A. TENANT may remove all its detachable and movable trade fixtures
brought in by TENANT before surrendering the Leased Premises at end of the term,
and shall repair any damage to the Leased Premises and the property under the
Airspace caused thereby. Any such trade fixtures not removed by TENANT prior to
surrender of possession, at the option of LANDLORD, either shall become the
property of LANDLORD or may be removed by LANDLORD at the expense of TENANT.
TENANT agrees to pay for the removal of any such abandoned trade fixtures, and
this obligation of TENANT to remove or pay for such removal shall survive the
expiration or termination of the possessory rights of TENANT created by this
Lease and the expiration or other termination of this Lease.
B. All alterations, additions, improvements and fixtures (other than
detachable and movable trade fixtures) which may be made or installed by TENANT
upon the Leased Premises and the Airspace and the property below the Airspace
shall remain upon and be surrendered with the Leased Premises and the Airspace
and become the property of LANDLORD at the termination or cancellation of this
Lease, unless LANDLORD requests their removal by TENANT prior to the termination
of this Lease, in which event TENANT shall remove the same at TENANT's expense.
All such alterations, additions, improvements and fixtures not requested by
LANDLORD to be removed prior to surrender of possession shall become the
property of LANDLORD without credit or compensation to TENANT; all such
alterations, additions, improvements and fixtures which LANDLORD has requested
TENANT to remove but which have not been removed prior to surrender of
possession may be removed by LANDLORD at the expense of TENANT. LANDLORD agrees
to give TENANT written notice under within thirty (30) days after the
termination of this Lease of its intent to remove any such alterations,
additions, improvements and fixtures at the expense of TENANT and to remove such
items in a reasonable amount of time thereafter commensurate with the difficulty
and expense of such removal. TENANT agrees to pay for the removal of any such
alterations, additions, improvements and fixtures, and this obligation of TENANT
to remove or pay for such removal shall survive the expiration or termination of
the possessory rights of TENANT created by this Lease and the expiration or
other termination of this Lease.
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SECTION 16
LANDLORD'S DISCLAIMER
LANDLORD shall be under no liability to replace, repair, maintain, alter or
take any other action with reference to the Leased Premises, the Airspace, or
the property under the Airspace, or any part thereof, or any plumbing, heating,
cooling, gas, electrical or other mechanical installation therein.
SECTION 17
INDEMNIFICATION OF LANDLORD
TENANT will indemnify, defend, and hold LAND LORD harmless from and against
any and all claims, actions, damages, liability and expense in connection with
loss of life, personal injury, and/or damage to property arising from or out of
any occurrence in, upon or at the Leased Premises, the Airspace, and the
property under the Airspace, or the occupancy or use by TENANT of the Leased
Premises, the Airspace, or the property under the Airspace, or any part thereof,
occasioned wholly or in part by any act or omission of TENANT, its agents,
contractors, employees, servants, lessees or concessionaires. In case LANDLORD
shall, without having committed any willful act or act of gross negligence on
its part, be made a party to any litigation commenced by or against TENANT, then
TENANT shall defend, protect, and hold LANDLORD harmless and shall pay all
costs, expenses and reasonable attorney's fees incurred or paid by LANDLORD in
connection with such litigation.
SECTION 18
CONNECTION AND USE OF UTILITIES
TENANT shall, at its sole expense, arrange for the entry and connection of
all necessary utility services to the Leased Premises and Airspace. TENANT shall
pay all charges for water, sewage service, fuels, electricity, steam, gas,
telephone service and other utilities used in or at the Leased Premises and
Airspace for any purpose.
SECTION 19
OFFSET STATEMENT/ESTOPPEL CERTIFICATE
Within ten (10) days after request therefor by LANDLORD (or in the event
that upon any sale, assignment, or hypothecation of the Leased Premises or the
property under the Airspace by LANDLORD, an offset statement or estoppel
certificate shall be required from TENANT), TENANT agrees to deliver in
recordable form a certificate to any proposed mortgagee or purchaser, or to
LANDLORD, certifying (if such be the case) that this Lease is in full force and
effect and that there are no defenses or offsets thereto, or stating those
claimed by TENANT.
SECTION 20
ATTORNMENT
TENANT shall, in the event any proceedings are brought for the foreclosure
of, or in the event of exercise of the power of sale under, any mortgage or deed
of trust made by LANDLORD covering the Leased Premises or the property under the
Airspace, attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as LANDLORD under
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this Lease, provided TENANT either receives a non-disturbance agreement from the
purchaser reasonably satisfactory to TENANT or such a provision is included in
any applicable deed of trust and is in effect upon such attornment.
SECTION 21
SUBORDINATION
LANDLORD reserves the right to subject and/or subordinate its interest in
this Lease at all times to the lien of any mortgage or deed of trust now or
hereafter placed upon LANDLORD's interest in the Leased Premises or property
under the Airspace, or upon the land or premises of which the Leased Premises
and property under the Airspace are a part, or upon any building now or
hereafter placed by LANDLORD upon the land of which the Leased Premises forms a
part, and to all advances made or hereafter to be made upon the security
thereof, all without the necessity of TENANT joining in any such subordination;
however, upon request of LANDLORD, TENANT shall execute and deliver such further
instrument evidencing TENANT's consent to the subordination by LANDLORD of its
interest in this Lease as LANDLORD may reasonably request, provided LANDLORD's
proposed lender executes a non-disturbance agreement reasonably satisfactory to
TENANT. It is further understood and agreed, however, that neither such
subordination of LANDLORD' s interest, nor any foreclosure of any such mortgage
or deed of trust, shall affect TENANT's right to continue in possession of the
Leased Premises or use of the Airspace under the terms of this Lease so long as
TENANT shall not default in the performance of TENANT's obligations hereunder.
SECTION 22
CONSENT REQUIRED FOR ASSIGNMENT
TENANT may not assign this Lease in whole or in part, or sublet all or any
part of the Leased Premises or Airspace, without the prior written consent of
LANDLORD, which consent shall not be unreasonably withheld. The consent by
LANDLORD to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. This
prohibition against assigning or subletting shall be construed to include a
prohibition against any assignment or subletting by operation of law or
otherwise. If this Lease is assigned or if the Leased Premises or any part
thereof be underlet or occupied by anybody other than TENANT pursuant to said
written consent of LANDLORD, LANDLORD may collect rent from the assignee, under
TENANT or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a release of TENANT from the further performance by TENANT of covenants
on the part of TENANT herein contained. After any approved assignment or
sublease, TENANT shall remain fully liable on this Lease and shall not be
released from liability for performing any of the terms, covenants and
conditions of this Lease and such release unless specifically released in
writing therefrom by LANDLORD. Provided the successor to the TENANT continues to
satisfy or perform all obligations of the TENANT under the Lease (subject to all
applicable cure periods set forth herein and in Exhibit "I"), and continues to
utilize the Lease Premises in conjunction with a gaming enterprise and/or resort
hotel, the foregoing restriction shall not apply to (i) any future assignment by
TENANT to a successor organization in a merger, consolidation or similar
reorganization, (ii) an assignment or other transfer to an entity that controls,
is controlled by, or is under common control with TENANT; or (iii) an
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assignment or other transfer of TENANT's interest in the Lease, the Leased
Premises and easements conveyed by this Lease (including a transfer by mortgage
or deed of trust) by TENANT to an institutional lender, or to an institutional
trustee on behalf of one or more lenders or note holders (such lender of
trustee, "Lender"), in connection with financing for the improvements to be
constructed on the Leased Premises and the hotel and casino to be located on
certain other premises owned or leased by TENANT. TENANT agrees to notify
LANDLORD of any such future assignment or transfer within thirty (30) days of
same. The provisions set forth in Exhibit "I" attached hereto relating to the
rights and protections of Lender are incorporated herein and made a part of the
lease. The CITY agrees that a Leasehold Mortgagee as defined in Exhibit "I" and
having a mortgage or other security interest in the Leased Premises shall have
all of the rights and protections set out in Exhibit "I".
SECTION 23
BENEFITS AND BURDENS ON ASSIGNMENT
This Lease and agreement and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon LANDLORD, its successors and
assigns, and shall be binding upon TENANT, its heirs, successors and assigns,
and shall inure to the benefit of TENANT and only such assigns of TENANT to whom
the assignment by TENANT has been consented to in writing by LANDLORD which
consent shall not be unreasonably withheld. Nothing contained in this Lease
shall in any manner restrict LANDLORD's right to assign or encumber this Lease
in its sale discretion.
SECTION 24
GOVERNMENTAL REGULATIONS
TENANT shall, at TENANT's sole cost and expense, comply with all of the
requirements of all county, municipal, state, federal and other applicable
governmental authorities, now in force, or which may hereafter be in force,
pertaining to said Leased Premises, the Airspace, and the property under the
Airspace, and shall faithfully observe in the use thereof all municipal and
county ordinances and state and federal statutes now in force or which may
hereafter be in force.
SECTION 25
TENANT'S COVENANTS
TENANT agrees that in all hiring or employment made possible by or as a
result of this Lease contract, (a) there will not be any discrimination against
any employee or applicant for employment because of race, color, religion, age,
sex or national origin; and (b) affirmative action will be taken to ensure that
applicants are employed and that employees are treated during employment without
regard to their race, color, religion, sex or national origin. This
non-discrimination requirement shall apply to employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rates
of payor other forms of compensation, and selection of training, including
apprenticeships, and also to any and all other areas of employment in which
discrimination could be prevalent. All solicitations or advertisements for
employees shall state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, age, sex or national
origin.
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SECTION 26
NON-DISCRIMINATION
TENANT agrees that no person in the United States shall, on the ground of
race, color, religion, sex or national origin, be excluded from participation
in, be denied the benefits of or be subject to discrimination under any program
or activity made possible by or resulting from this Lease contract. TENANT shall
comply with all requirements imposed by or pursuant to Title VI of the Civil
Rights Act of 1964.
SECTION 27
FLOOD INSURANCE
TENANT shall, if the Leased Premises or the area under the Airspace are
located in an area identified by the HUD Secretary as a special flood hazard
area and in which the sale of flood insurance has been made available under the
National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001, et. seq.,
carry flood insurance insuring the Leased Premises. Said insurance shall name
LANDLORD as an additional insured.
SECTION 28
DESTRUCTION OF LEASED PREMISES
A. In the event that the improvements to the Leased Premises or in the
Airspace necessary for the operation of TENANT's business shall be damaged or
destroyed by fire or other casualty insurable under standard fire and extended
coverage insurance, TENANT shall proceed with reasonable diligence and at its
sole cost and expense to rebuild and repair those improvements on the Leased
Premises, and the Airspace as hereinafter provided.
B. TENANT's obligation to rebuild and repair under this article shall in
any event be limited to restoring the improvements to the Leased Premises and
Airspace to substantially the condition in which the same existed prior to the
casualty, and TENANT agrees that, promptly after completion of such work, it
will proceed with reasonable diligence and at its sole cost and expense to
rebuild, repair and restore its sign, fixtures, equipment and other ancillary
improvements necessary to conduct the business or businesses contemplated by
this Lease.
C. TENANT shall be excused from the requirement to rebuild the
improvements to the Leased Premises as provided in this section if such
destruction takes place within the last three (3) years of the primary term of
this Lease, or within the last two (2) years of any option period; provided,
that TENANT's choice not to reconstruct said improvements shall not excuse
TENANT from its obligations to pay rent under this Lease; and, provided further,
that should TENANT elect not to rebuild the improvements under the circumstances
provided herein, TENANT shall remove all improvements, or the remains thereof,
within four (4) months of the casualty.
D. TENANT shall be excused from. the requirement to rebuild the
improvements in the event that a Lender or noteholder or lenders on whose behalf
of Lender hold a mortgage or lien in the Leased Premises accelerates TENANT's
obligations and succeeds in the interest of the TENANT in this Lease; provided,
however, that if such successor TENANT elects not to rebuild
15
the Improvements, it must remove all improvements, or the remnants thereof,
within twelve (12) months of the casualty.
SECTION 29
EMINENT DOMAIN; TOTAL CONDEMNATION
If the whole of the Leased Premises and the TENANT's air rights under this
Lease shall be acquired or condemned by any qualified condemning authority other
than LANDLORD or its successors or assigns through eminent domain proceedings
for any public or quasi-public use or purpose, then the term of this Lease shall
cease and terminate as of the date of title vesting in such proceeding, and all
rentals shall be paid up to that date, and TENANT shall have no claim against
LANDLORD for the value of any unexpired term of this Lease. TENANT shall have
the right to assert a claim in any such condemnation proceeding for all
compensation it is entitled to under the laws of the State of Mississippi and
the Constitution and laws of the United States of America.
The term "acquired or condemned through eminent domain proceedings for any
public or quasi-public use" as used throughout this Lease shall include a sale
or transfer to such body under threat of eminent domain or condemnation.
SECTION 30
EMINENT DOMAIN; PARTIAL CONDEMNATION
A. If any part of the Leased Premises or the TENANT's air rights under
this Lease shall be acquired or condemned by any qualified condemning authority
other than LANDLORD or its successors or assigns, through eminent domain
proceedings for any public or quasi-public use or purpose, and in the event such
partial taking or condemnation shall render the Leased Premises and the TENANT's
air rights under this Lease unsuitable for the business of TENANT, then the term
of this Lease shall cease and terminate as of the date of title vesting in such
proceeding, and all rental shall be paid up to that date, and TENANT shall have
no claim against LANDLORD for the value of any unexpired term of this Lease.
TENANT shall have the right to assert a claim in any such condemnation
proceeding for all compensation it is entitled to under the laws of the State of
Mississippi and the Constitution and laws of the United States of America.
B. In the event of a partial taking or condemnation which is not
extensive enough to render the Leased Premises or the TENANT's air rights under
this Lease unsuitable for the business of TENANT, then TENANT shall give written
notice to LANDLORD within fourteen (14) days of such acquisition that it will
restore the Leased Premises or the property subject to the TENANT's air rights
to a condition comparable to that existing at the time of such acquisition or
condemnation less the portion lost in the taking and shall within ninety (90)
days from the date of title vesting restore the Leased Premises or the property
subject to the TENANT's air rights to a condition comparable to that existing at
the time of such acquisition or condemnation less the portion lost in the
taking. In that event, this Lease shall continue in full force and effect and
the Basic Rent, but not any other charge payable by TENANT hereunder as rent or
additional rent, shall be reduced proportionately.
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SECTION 31
CONDEMNATION AWARD
Subject to the paramount and prior rights to the condemnation award, if
any, of the holder of any mortgage, such condemnation award (whether in respect
to total or partial taking of the Leased Premises, as improved) shall be divided
between LANDLORD and TENANT in proportion to the fair market value of their
respective interests in the Leased Premises, as improved, as provided by law;
accordingly, the portion of the award attributable to TENANT's leasehold
interest as lessee shall be received by TENANT, and the portion of the award
attributable to LANDLORD's interest as lessor, if applicable, shall be received
by LANDLORD.
SECTION 32
LOSS AND DAMAGE
A. LANDLORD shall not be liable for any damage to property of TENANT or
subtenant or the property of others entrusted to TENANT or to employees of
TENANT nor for the loss of or damage to any property of TENANT by theft or
otherwise.
B. LANDLORD shall not be liable for any injury or damage to persons or
property resulting from: fire, explosion, steam, gas, electricity, water, wind,
rain, or snow; or leaks from any part of the Leased Premises or from the pipes
or plumbing works, or from the street or subsurface or from any other place, or
by dampness or by any other cause of whatsoever nature.
C. LANDLORD shall not be liable for any such damage caused by other
tenants or persons in the Leased Premises or the Airspace, occupants of adjacent
property, or the public, or caused by operations in construction of any private,
public or quasi-public work.
D. LANDLORD shall not be liable for any latent defect in the Leased
Premises. All property of TENANT kept or stored on the Leased Premises or in the
Airspace shall be so kept or stored at the risk of TENANT only, and TENANT shall
indemnify, defend, and hold LANDLORD harmless from any claims arising out of
damage to the same, including subrogation claims by TENANT's insurance carriers,
unless such damage shall be caused by the willful act or gross neglect of
LANDLORD.
E. In case LANDLORD shall, without having committed any willful act or
gross negligence on its part, be made a party to any litigation regarding losses
or damages described in this section, then TENANT shall indemnify, defend, and
hold LANDLORD harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by LANDLORD in connection with such litigation,
and TENANT shall also pay all costs, expenses and reasonable attorneys' fees
that may be incurred or paid by LANDLORD pursuant to the enforcement of any of
the covenants and agreements in this Lease.
SECTION 33
DEFAULT
A. In the event of any failure of TENANT to pay (i) any Base Rent or
additional rental due hereunder within ten (10) days after the same shall become
due; (ii) any ad valorem tax to be paid by TENANT or its subtenant pursuant to
this Lease within thirty (30) days after it
17
becomes due; (iii) any additional rental due hereunder within ten (10) days;
(iv) any other amount or sum due hereunder, regardless of whether it is
designated as additional rent, within ten (10) days; all after receipt by TENANT
of written notice that same shall become due; then TENANT shall be deemed to be
in default hereunder and to have committed a breach hereof.
B. In the event TENANT fails to perform any other of the terms,
conditions or covenants of this Lease (other than the payment of money or rent
as specified in subparagraph (A) above) and such failure is not remedied within
thirty (30) days after written notice of such default shall have been given to
TENANT, then TENANT shall be deemed to be in default hereunder and to have
committed a breach hereof. The thirty (30) day period shall be suspended if
TENANT has begun to cure or remedy such failure and cannot with due diligence
cure said default within the thirty (30) day period; provided, however, TENANT
must continue to exercise due diligence in completing the cure or remedy of any
such non-monetary default or failure, and the thirty (30) day period shall be
suspended only so long as TENANT continues to diligently complete said cure or
remedy.
C. The foregoing notwithstanding, if: TENANT or an agent of TENANT shall
falsify any report required to be furnished to LANDLORD pursuant to the terms of
this Lease; or TENANT or any guarantor of this Lease makes an assignment for the
benefit of creditors, or petitions for or enters into an arrangement; or TENANT
shall abandon said Leased Premises, or suffer this Lease to be taken under any
writ of execution; then TENANT shall be deemed to be in default hereunder and to
have committed a breach hereof.
D. LANDLORD may cancel and terminate this Lease if at any time during the
term or any extension thereof a petition in bankruptcy or insolvency, for
reorganization or for the appointment of a receiver or trustee of all or a
portion of TENANT's property is filed by or against TENANT or any guarantor of
this Lease in any court under any federal or state statute, and within ninety
(90) days thereafter TENANT or any guarantor of this Lease fails to secure a
discharge thereof or provide LANDLORD adequate assurance, satisfactory to
LANDLORD, that all of TENANT's obligations under this Lease will be met, or if
TENANT or any guarantor of this Lease makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement for discharge of debt.
LANDLORD shall exercise its right to cancel and terminate within a reasonable
time after it receives notice that any of the above events have occurred. If
LANDLORD exercises such right, neither TENANT nor any person claiming through or
under TENANT by virtue of any statute, court order or agreement shall be
entitled to possession or to remain in possession of the Leased Premises and the
TENANT's air rights but shall forthwith quit and surrender the premises; and
LANDLORD, in addition to the other rights and remedies it has by virtue of any
other provision contained in this Lease or any statute or rule of law, may
retain as liquidated damages any rent, security, deposit or monies received by
it from TENANT or others on TENANT's behalf.
E. In the event LANDLORD fails to perform any of the terms, conditions or
covenants of this Lease to be observed or performed by LANDLORD for more than
thirty (30) days after written notice of such default shall have been given to
LANDLORD, TENANT shall be entitled to pursue any and all remedies at law or in
equity to which it may be entitled to enforce such obligation of LANDLORD. The
thirty (30) day period shall be suspended if LANDLORD has begun to cure or
remedy such failure and cannot with due diligence cure said
18
default within the thirty (30) day period; provided, however, LANDLORD must
continue to exercise due diligence in completing the cure or remedy of any such
non-monetary default or failure, and the thirty (30) day period shall be
suspended only so long as LANDLORD continues to diligently complete said cure or
remedy.
F. PREMIER shall not be deemed to be in default under any provision of
the Lease, and LANDLORD shall not be entitled to exercise any remedies under
Section 34, unless a default is deemed to have occurred and is continuing under
sub-sections 33A and 33B.
SECTION 34
REMEDIES
A. In the event of any default hereof by TENANT, LANDLORD, besides other
rights or remedies it may have, shall, subject to the process of law, have the
immediate right of re-entry and may remove all persons and property from the
Leased Premises and the Airspace, and such property may be removed and stored in
a public warehouse or elsewhere at the cost of and for the account of TENANT,
all without service of notice and without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby.
B. Should LANDLORD elect to re-enter, as herein provided, or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law, it may either terminate this Lease or it may from time to time
without terminating this Lease make such alterations and repairs as may be
necessary in order to relet the Leased Premises and/or Airspace, and relet said
Leased Premises and/or Airspace or any part thereof for such term or terms
(which may be for a term extending beyond the term of this Lease) and at such
rental or rentals and upon such other terms and conditions as LANDLORD in its
sole discretion may deem advisable; upon each such reletting all rentals
received by LANDLORD from such reletting shall be applied, first, to the payment
of any indebtedness other than rent due hereunder from TENANT to LANDLORD;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees and attorneys' fees and of costs of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder; and the residue, if any,
shall be held by LANDLORD and applied in payment of future rent as the same may
become due and payable hereunder. If such rentals received from such reletting
during any month be less than that to be paid during that month by TENANT
hereunder, TENANT shall pay any such deficiency to LANDLORD. Such deficiency
shall be calculated and paid monthly. No such re-entry or taking possession of
said Leased Premises or the Airspace by LANDLORD shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to TENANT or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such reletting without
termination, LANDLORD may at any time thereafter elect to terminate this Lease
for such previous breach.
C. Should LANDLORD at any time terminate this Lease for any breach, in
addition to any other remedies it may have, it may recover from TENANT all
damages it may incur by reason of such breach, including the cost of recovering
the Leased Premises and the Airspace, reasonable attorneys' fees, and including
the worth at the time of such termination of the excess, if any, of the amount
of rent and charges equivalent to rent reserved in this Lease for the remainder
of the stated term over the then reasonable rental value of the Leased Premises
and the
19
TENANT's rights to the Airspace for the remainder of the stated term, all of
which amounts shall be immediately due and payable from TENANT to LANDLORD.
D. Subject only to the perfected liens, security interest, or encumbrance
of any lender, to the fullest extent allowable by law, LANDLORD shall have a
lien on the goods, furniture and effects located on the Leased Premises,
belonging to TENANT for all rents and sums payable hereunder and all other
charges due LANDLORD hereunder, which lien shall be superior to all other liens
of any kind or character whatsoever, located on the Leased Premises or in the
Airspace. No goods, furniture and effects shall be removed from the Leased
Premises without the written consent of LANDLORD, except in the ordinary course
of business, until all rents and other applicable charges have been paid. Any
perfected lien, security interests, or encumbrance of any purchase money lender
or construction money lender, shall be senior in all respects to any lien,
security interest, or encumbrance of LANDLORD.
SECTION 35
LEGAL EXPENSES
In the event of any default hereof by LANDLORD or TENANT, the parties agree
to pay, in addition to any amounts which may be due under this Lease, the
prevailing party's reasonable attorneys' fees, whether incurred prior to filing
of suit or afterwards, necessary to enforce the other party's obligations under
this Lease.
SECTION 36
INTEREST
Without waiving, or in any manner affecting, any of the other rights or
remedies which LANDLORD has under this Lease or by reason of applicable law,
LANDLORD may charge, after the expiration of any specified period for
performance, interest on all past-due payments of rent and any other payments
and sums due by TENANT and collectible hereunder, at the lesser of one and
one-half percent (1 1/2%) per month, or any part thereof, or the maximum lawful
rate of interest which may be charged; provided that no such interest may be
charged if it is not lawful to do so.
SECTION 37
HOLDING OVER
Any holding over after the expiration of the term hereof, without the
written consent of LANDLORD, shall be construed to be a tenancy from month to
month at the rents herein specified (prorated on a monthly basis) and shall
otherwise be on the terms and conditions herein specified, so far as applicable.
However, no holding over shall result in the waiver, loss or diminution of any
of LANDLORD's rights, either under the terms of this Lease or under applicable
law.
SECTION 38
ACCESS
LANDLORD shall have the right to enter upon the Leased Premises and the
Airspace at any reasonable time upon reasonable notice to TENANT for the purpose
of determining
20
compliance with the terms, conditions and obligations of TENANT under this
Lease, or of making repairs, alterations or additions to adjacent premises.
SECTION 39
NON-EXCLUSIVE REMEDIES
The mention in this Lease of any specific right or remedy shall not
preclude LANDLORD from exercising any other right or from having any other
remedy or from maintaining any action to which it may be otherwise, entitled
either at law or in equity.
SECTION 40
LANDLORD'S COVENANT
Upon payment by TENANT of the rents provided, and upon the observance and
performance of all the covenants, terms and conditions on TENANT's part to be
observed and performed, TENANT shall peaceably and quietly hold and enjoy the
Leased Premises and the Airspace for the term hereby demised without hindrance
or interruption by LANDLORD or any other person or persons lawfully or equitably
claiming by, through or under LANDLORD, subject, nevertheless, to the terms and
conditions of this Lease.
SECTION 41
WAIVER
The waiver by LANDLORD of any breach of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by
LANDLORD shall not be deemed to be a waiver of any preceding breach by TENANT of
any term, covenant or condition of this Lease, other than the failure of TENANT
to pay the particular rental so accepted, regardless of LANDLORD's knowledge of
such preceding breach at the time of acceptance of such rent. No covenant, term
or condition of this Lease shall be deemed to have been waived by LANDLORD,
unless such a waiver be in writing by LANDLORD.
SECTION 42
ACCORD AND SATISFACTION
No payment by TENANT or receipt by LANDLORD of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and LANDLORD may accept such check or payment without
prejudice to LANDLORD's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
SECTION 43
ENTIRE AGREEMENT
This Lease, and the exhibits attached hereto and forming a part hereof, set
forth all the covenants, promises, agreements, conditions and understandings
between LANDLORD and
21
TENANT concerning the Leased Premises, the Airspace, the property under the
Airspace, and other property described herein; and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them other than as herein and therein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon LANDLORD or TENANT unless reduced to writing
and signed by them.
SECTION 44
NO PARTNERSHIP
LANDLORD does not, in any way or for any purpose, become a partner of
TENANT in the conduct of its business, or otherwise, or joint venturer or a
member of adjoining enterprises with TENANT. The provisions of this Lease
relating to the percentage rent payable hereunder are included solely for the
purpose of providing a method whereby the rent is to be measured and
ascertained.
SECTION 45
NOTICES
All notices required or options granted under this Lease shall be given or
exercised in writing and shall be deemed to be properly served if delivered in
writing personally, or sent by certified mail with return receipt requested, to
TENANT at its office as set out in the preamble of this Lease, or at such other
address as may be specified by TENANT in written notice to LANDLORD, and to
LANDLORD at both the office of the Municipal Clerk of the CITY of Biloxi, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000, or such other addresses as may be
provided by LANDLORD in written notice to TENANT.
SECTION 46
RECORDING
TENANT shall not record this Lease without the written consent of LANDLORD;
however, upon the request of either party hereto, the other party shall join in
the execution of the memorandum or so-called "short form" of this Lease for the
purposes of recordation. Said memorandum or short form of this Lease shall
describe the parties, the Leased Premises and Airspace, and the term of this
Lease and shall incorporate this Lease by reference. TENANT shall record this
Lease or said short form at the request of LANDLORD and shall pay the cost of
recording same.
SECTION 47
LAW TO APPLY
The laws of the State of Mississippi shall govern the interpretation,
validity, performance and enforcement of this Lease. If any provision of this
Lease should be held to be invalid or unenforceable, the validity and
enforceability of the remaining provisions of this Lease shall not be affected
thereby.
22
SECTION 48
AUTHORITY OF SIGNATORIES AND PARTIES
The signatories hereto and the parties they represent each represent and
warrant that to the best of their knowledge, information, and belief they are
fully and completely authorized to execute, deliver and perform this Lease as
well as any amendments, modifications, supplements, restatements, consents, and
waivers hereto or hereof.
SECTION 49
COVENANT REGARDING NO PARENT CORPORATION
PREMIER covenants that it is sole owner and operator of the gaming
enterprise which it intends to operate utilizing the Leased Premises and
Airspace, and that it is not owned wholly or partially by any person or
corporation other than those executing this Agreement, except (a) that there is
outstanding a certain right of conversion under the terms of funding the land
acquisition which may require transfer of a fractional ownership interest in
PREMIER Entertainment, LLC to AA Capital Partners, Inc., or an affiliate
controlled by AA Capital Partners, Inc.; and, (b) PREMIER ENTERTAINMENT, LLC, a
Mississippi Limited Liability Company, wholly owned by GAR, LLC, a Mississippi
Limited Liability Company, will merge with PREMIERE ENTERTAINMENT BILOXI LLC, a
Delaware Limited Liability Company, wholly owned by GAR, LLC, and PREMIER
ENTERTAINMENT BILOXI LLC will be the surviving company. PREMIER, and the
individuals executing this agreement, acknowledge that the CITY has relied in
good faith on this representation and has been induced to enter this agreement
by its reliance upon this representation.
LANDLORD: CITY OF BILOXI, MISSISSIPPI
BY: /s/ X.X. Xxxxxxxx
----------------------------------------------
X. X. Xxxxxxxx, Mayor
Executed this 18th day of November, 2003.
ATTEST: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxxxx, Municipal Clerk
Executed this 18th day of November, 2003.
TENANT PREMIER ENTERTAINMENT LLC,
A DELAWARE LIMITED LIABILITY COMPANY
BY: GAR, LLC, its Managing Member
By: /s/ Xxxxx Xxxx,
-------------------------------------------
Xxxxx Xxxx, Managing Member
Executed this 20th day of November, 2003.
By: /s/ Xxxxx Guiffria
-------------------------------------------
23
Xxxxx Guiffria, Managing Member
Executed this 21st day of November, 2003.
By: /s/ Xxx Xxxxxxxx, III
-------------------------------------------
Xxx Xxxxxxxx, III, Managing Member
Executed this 18th day of November, 2003.
PROSPECTIVE TENANT BY PREMIER ENTERTAINMENT BILOXI LLC,
MERGER: A DELAWARE LIMITED LIABILITY COMPANY
BY: GAR, LLC, its Managing Member
By: /s/ Xxxxx Xxxx
-------------------------------------------
Xxxxx Xxxx, Managing Member
Executed this 20th day of November, 2003.
By: /s/ Xxxxx Guiffria
-------------------------------------------
Xxxxx Guiffria, Managing Member
Executed this 21st day of November, 2003.
By: /s/ Xxx Xxxxxxxx, III
-------------------------------------------
Xxx Xxxxxxxx, III, Managing Member
Executed this 18th day of November, 2003.
24
STATE OF MISSISSIPPI
COUNTY OF XXXXXXXX
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named X. X. XXXXXXXX and XXXXXX XXXXXXXX,
who acknowledged that they are the Mayor and Municipal Clerk, respectively, of
the CITY OF BILOXI, MISSISSIPPI, and that in said representative capacity, they
executed the above and foregoing instrument, after having first been duly
authorized to so do, this the 18th day of November , 2003.
/s/ Xxxxxxxx X. Wesien
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: Nov. 26, 2006
------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXXXX XXXX, who acknowledged that he
is a Managing Member of GAR, LLC, a Mississippi Limited Liability Company; which
is the Managing Member of Premier Entertainment, LLC, a Mississippi Limited
Liability Company, and that for and on behalf of the said companies, and as
their act and deed, he executed the above and foregoing instrument after having
first been duly authorized by said companies to so do, this the 20th day of
November, 2003.
/s/ Xxxxxxxxx X. Xxxx
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: Mar. 26, 2005
------------------
STATE OF NEVADA
COUNTY OF XXXXX
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXXXX GUIFFRIA, who acknowledged
that he is a Managing Member of GAR, LLC, a Mississippi Limited Liability
Company; which is the Managing Member of Premier Entertainment, LLC, a
Mississippi Limited Liability Company, and that for and on behalf of the said
companies, and as their act and deed, he executed the above and foregoing
instrument after having first been duly authorized by said companies to so do,
this the 21st day of November, 2003.
/s/ Xxxxx X. Xxxxx
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: 5/1/07
---------
25
STATE OF MISSISSIPPI
COUNTY OF XXXXXXXX
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXX XXXXXXXX, III, who acknowledged
that he is a Managing Member of GAR, LLC, a Mississippi Limited Liability
Company; which is the Managing Member of Premier Entertainment, LLC, a
Mississippi Limited Liability Company, and that for and on behalf of the said
companies, and as their act and deed, he executed the above and foregoing
instrument after having first been duly authorized by said companies to so do,
this the 18th day of October, 2003.
/s/ Xxxxx X. Xxxxxx
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: Jan. 10, 2006
------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXXXX XXXX, who acknowledged that he
is a Managing Member of GAR, LLC, a Mississippi Limited Liability Company; which
is the Managing Member of Premier Entertainment, LLC, a Mississippi Limited
Liability Company, and that for and on behalf of the said companies, and as
their act and deed, he executed the above and foregoing instrument after having
first been duly authorized by said companies to so do, this the 20th day of
November, 2003.
/s/ Xxxxxxxxx X. Xxxx
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: Mar. 26, 2005
------------------
STATE OF NEVADA
COUNTY OF XXXXX
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXXXX GUIFFRIA, who acknowledged
that he is a Managing Member of GAR, LLC, a Mississippi Limited Liability
Company; which is the Managing Member of Premier Entertainment, LLC, a
Mississippi Limited Liability Company, and that for and on behalf of the said
companies, and as their act and deed, he executed the above and foregoing
instrument after having first been duly authorized by said companies to so do,
this the ___ day of November, 2003.
/s/ Xxxxx X. Xxxxx
----------------------------
26
NOTARY PUBLIC
MY COMMISSION EXPIRES: 5/1/07
-------------
STATE OF MISSISSIPPI
COUNTY OF XXXXXXXX
PERSONALLY came and appeared before me, the undersigned authority, in and
for said County and State, the within named XXX XXXXXXXX, III, who acknowledged
that he is a Managing Member of GAR, LLC, a Mississippi Limited Liability
Company; which is the Managing Member of Premier Entertainment, LLC, a
Mississippi Limited Liability Company, and that for and on behalf of the said
companies, and as their act and deed, he executed the above and foregoing
instrument after having first been duly authorized by said companies to so do,
this the 18th day of November, 2003.
/s/ Xxxxx X. Xxxxxx
----------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES: Jan 10, 2006
------------------
27
LIST OF EXHIBITS
To: Lease and Air Rights Agreement as Amended by Technical Amendment
Addendum
Exhibit "A" Legal Description of Lameuse Street Parking Area.
(Parcel 2 on Exhibit "H" Plat)
Exhibit "B" Legal Description of Lameuse Street Parcel.
(Parcel 1 on Exhibit "H" Plat)
Exhibit "C" Legal Description of Service Road Parcel.
Part 1: Legal Description of South portion of Service Road Parcel.
(Parcel 3 on Exhibit "H" Plat)
Part 2: Legal Description of North portion of Service Road Parcel.
(Parcel 4 on Exhibit "H" Plat)
Exhibit "D" Legal Description of North portion of Service Road Parcel,
conveyed to City by Premier.
(Parcel 4 on Exhibit "H" Plat)
Exhibit "E" Legal Description of parcel conveyed by Premier to City for
Main Street widening. (Parcel 8 on Exhibit "H" Plat)
Exhibit "F" Legal Description of Traffic Signal Parcel conveyed to City
by Premier. (Parcel 7 on Exhibit "H" Plat)
Exhibit "G" This is no Exhibit "G"
Exhibit "H" Plat showing Parcels 1 through 8 referred to in Lease and Air
Rights Agreement and Technical Amendment Addendum.
Exhibit "I" Lender Protection Provisions from Tidelands Lease between
Secretary of State and Premier, which are incorporated by
reference into Lease and Air Rights Agreement via the
Technical Amendment Addendum.
Exhibit "J" Legal Description of Lameuse Street extended South of the
Leased Premises upon which the City grants and easement to
Premier.
(Parcel 6 on Exhibit "H" Plat)
28
PARCEL 0
XXXXXXX XXXXXX XXXXXXX XXXX
LEASE TO PREMIER
BEGIN at the northwest corner of Mariner's Harbor Condominiums, Biloxi, Xxxxxxxx
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, Xxxxxxxx
County 2nd Judicial District, Mississippi and run South 00 degrees 31 minutes 32
seconds East along the west line of said Mariner's Harbor Condominiums for
176.25 feet; thence run West for 21.29 feet to the east right of way line of
Lamuese Street; thence run North 00 degrees 22 minutes 56 seconds West along
said east right of way line for 178.49 to the south right of way line of Beach
Boulevard (U.S. Highway 90); thence run Easterly along said south right of way
line and along a non-tangential curve, to the left (having a radius of 2323.00
feet, an internal angle of 00 degrees 31 minutes 03 seconds and being subtended
by a chord distance of 20.98 feet along a bearing of South 83 degrees 50 minutes
55 seconds East) for 20.98 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Xxxxxxx Xxxxx 000, Xxxxxx, Xxxxxxxx Xxxxxx
Second Judicial District, Mississippi and contains 3736.24 square feet or 0.086
acres.
29
PARCEL 1
EXISTING LAMUESE STREET
BEGIN at an iron rod at the northeast corner of Harbor View Condominiums as per
the map or plat thereof on file in Plat Book 9 at Page 9 on file in the office
of the Chancery Clerk at the Court House in Biloxi, Xxxxxxxx County Second
Judicial District, Mississippi and run South 00 degrees 31 minutes 32 seconds
East along the east line of said Harbor View Condominiums for 239.05 feet;
thence run North 89 degrees 28 minutes 33 seconds East for 3.66 feet; thence run
South 89 degrees 51 minutes 31 seconds East for 35.92 feet; thence run North 00
degrees 22 minutes 56 seconds West for 234.78 feet to a point on the south right
or way line of Beach Boulevard (U.S. Highway 90); thence run North 83 degrees 51
minutes 05 seconds West along said south right of way for 40.44 feet back to the
POINT OF BEGINNING.
Said parcel of land is part of Biloxi Section Blocks 100 and 130, Biloxi,
Xxxxxxxx County Second Judicial District;, Mississippi and contains 9445.05
square feet or 0.217 acres.
30
PARCEL 3
EXISTING
EAST - WEST SERVICE ROAD
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING run West for 21.29 feet; thence run South 00
degrees 22 minutes 56 seconds East for 56.28 feet; thence run South 89 degrees
56 minutes 41 seconds East for 420.11 feet; thence run South 49 degrees 00
minutes 58 seconds East for 15.62 feet; thence run North 88 degrees 36 minutes
21 seconds East for 14.73 feet; thence run North 00 degrees 33 minutes 17
seconds West for 55.93 feet; thence run South 89 degrees 46 minutes 41 seconds
West for 68.44 feet; thence run South 00 degrees 36 minutes 03 seconds East for
20.05 feet; thence run North 89 degrees 45 minutes 09 seconds West for 108.51
feet; thence run North 00 degrees 50 minutes 05 seconds West for 20.00 feet;
thence run South 89 degrees 37 minutes 04 seconds West for 140.06 feet; thence
run South 00 degrees 22 minutes 56 seconds East for 18.33 feet; thence run South
88 degrees 59 minutes 05 seconds West for 107.95 feet; thence run North 00
degrees 31 minutes 32 seconds West for 31.66 feet back to the POINT OF
BEGINNING.
Said parcel of land is part of Biloxi Xxxxxxx Xxxxx x00, Xxxxxx, Xxxxxxxx Xxxxxx
Second Judicial District, Mississippi and contains 16507.34 square feet or 0.379
acres.
31
PARCEL 4
PREMIER TO CITY
EAST - WEST SERVICE ROAD
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING run East for 394.64 feet; thence run South 00
degrees 42 minutes 33 seconds East for 10.75 feet; thence run South 89 degrees
46 minutes 41 seconds West for 38.03 feet; thence run South 00 degrees 36
minutes 03 seconds East for 20.05 feet; thence run North 89 degrees 45 minutes
09 seconds West for 108.51 feet; thence run North 00 degrees 50 minutes 05
seconds West for 20.00 feet; thence run South 89 degrees 37 minutes 04 seconds
West for 140.06 feet; thence run South 00 degrees 22 minutes 56 seconds East for
18.33 feet; thence run South 88 degrees 59 minutes 05 seconds West for 107.95
feet; thence run North 00 degrees 31 minutes 32 seconds West for 31.66 feet back
to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi section Block 100, Biloxi, Xxxxxxxx County
Second Judicial District, Mississippi and contains 8594.88 square feet or 0.197
acres.
32
PARCEL 4
PREMIER TO CITY
EAST - WEST SERVICE ROAD
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING run East for 394.64 feet; thence run South 00
degrees 42 minutes 33 seconds East for 10.75 feet; thence run South 89 degrees
46 minutes 41 seconds West for 38.03 feet; thence run South 00 degrees 36
minutes 03 seconds East for 20.05 feet; thence run North 89 degrees 45 minutes
09 seconds West for 108.51 feet; thence run North 00 degrees 50 minutes 05
seconds West for 20.00 feet; thence run South 89 degrees 37 minutes 04 seconds
West for 140.06 feet; thence run south 00 degrees 22 minutes 56 seconds East for
18.33 feet; thence run South 88 degrees 59 minutes 05 seconds West for 107.95
feet; thence run North 00 degrees 31 minutes 32 seconds West for 31.66 feet back
to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Xxxxxxx Xxxxx 000, Xxxxxx, Xxxxxxxx Xxxxxx
Second Judicial District, Mississippi and contains 8594.88 square feet or 0.197
acres.
33
PARCEL 0
XXXX XXXXXX WIDENING
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet; thence run East for 394.64 feet to and for the
POINT OF BEGINNING.
From said POINT OF BEGINNING run North 00 degrees 42 minutes 33 seconds West for
170.02 feet to a point on the south right of way line of Beach Boulevard (U.S.
Highway 90); thence run Easterly along said south right of way line and along a
non-tangential curve to the left (having a radius of 2323.00 feet, an internal
angle of 00 degrees 05 minutes 14 seconds and being subtended by a chord
distance of 3.54 feet along a bearing of North 85 degrees 59 minutes 45 seconds
East) for 3.54 feet; thence run North 85 degrees 57 minutes 08 seconds East
along said south right of way line for 5.51 feet; thence run South 00 degrees 34
minutes 42 seconds East for 25.83 feet; thence run North 89 degrees 25 minutes
18 seconds East for 16.00 feet; thence run South 00 degrees 34 minutes 42
seconds East for 74.00 feet; thence run North 87 degrees 17 minutes 02 seconds
West for 15.60 feet; thence run South 00 degrees 31 minutes 45 seconds East for
82.44 feet; thence run South 89 degrees 46 minutes 41 seconds West for 8.98
feet; thence run North 00 degrees 42 minutes 33 seconds West for 10.75 feet back
to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Xxxxxxx Xxxxx 000, Xxxxxx, Xxxxxxxx Xxxxxx
Second Judicial District, Mississippi and contains 2807.04 square feet or 0.064
acres.
34
.PARCEL 7
TRAFFIC SIGNAL EASEMENT
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet; thence run East for 394.64 feet; thence run North
00 degrees 42 minutes 33 seconds West for 143.27 feet to and for the POINT or
BEGINNING.
From said POINT OF BEGINNING run South 89 degrees 25 minutes 18 seconds West for
16.00 feet; thence run North 00 degrees 34 minutes 42 seconds West for 25.84
feet to a point on the south right of way line of Beach Boulevard (U.S. Highway
90); thence run Easterly along said south right of way line and along a non
-tangential curve to the left (having a radius of 2323.00 feet, an internal
angle of 00 degrees 23 minutes 38 seconds and being subtended by a chord
distance of 15.96 feet along a bearing of North 86 degrees 08 minutes 56 seconds
East) for 15.97 feet; thence run South 00 degrees 42 minutes 33 seconds East for
26.75 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Xxxxxxx Xxxxx 000, Xxxxxx, Xxxxxxxx Xxxxxx
Second Judicial District, Mississippi and contains 419.89 square feet or 0.010
acres.
35
31. LEASEHOLD MORTGAGEE(S) PROTECTIONS.
This Section 31 is included to give additional rights to any Leasehold
Mortgagee(s), as defined herein. Unless specifically so stated, the additional
rights herein shall not amend the remaining provisions of the Lease with regard
to the Lessee, and may not be exercised, claimed or used in any manner by the
Lessee. For purposes of this Lease, "Leasehold Mortgage(s)" means any and all
deeds of trust, mortgages or security interests, including without limitation
any and all assignments, renewals, extensions or modifications thereof affecting
the Lease Premises and/or the Lessee's leasehold interest under this Lease,
which shall include facilities constructed on or placed on the Lease Premises
including any vessels, and "Leasehold Mortgagee(s)" shall mean the beneficiary
or beneficiaries under any Leasehold Mortgage(s). Any Leasehold Mortgagee(s) may
exercise any of its rights hereunder through a designee, nominee, or wholly
owned subsidiary.
(a) Lessor does hereby consent to one Leasehold Mortgage, however,
Lessor covenants that its consent to subsequent mortgages shall not be
unreasonably withheld. Any Leasehold Mortgage(s) shall be a lien on the Lease
Premises to the extent of the interest of the Lessee [The Leasehold Mortgage(s)
will not be an encumbrance on the fee interest in the public trust tidelands
real property leased from the State of Mississippi, or the reversionary fee
interest of the CITY in the Leased Premises, but is limited strictly to a
leasehold interest only]. Furthermore, it is understood and agreed that in the
event a Leasehold Mortgage(s) holder should foreclose, it shall have the right
to make a one time assignment of the Lease Premises to any financially
responsible person licensed by the Mississippi Gaming Commission.
(b) If a Leasehold Mortgagee(s) shall forward to Lessor a copy of the
Leasehold Mortgage(s) together with a written notice setting forth its name and
address, then any such copy of said mortgage and any such notice shall be deemed
also to have been forwarded to any successor to Lessor's interest in the Lease
Premises and until the time, if any, that said mortgage shall be .satisfied of
record or said Leasehold Mortgagee(s) shall give Lessor written notice that said
mortgage has been satisfied, and further, Lessor agrees and acknowledges as
follows for the benefit of any Leasehold Mortgagee(s) (all of which agreements
and covenants shall be cumulative, so that if a Leasehold Mortgagee(s) exercises
rights or remedies under any one of the following Sections the same shall not be
deemed an election of remedies and any Leasehold Mortgagee(s) shall continue to
have all other rights and remedies provided for below):
(1) Lessor shall not accept any voluntary cancellation,
surrender, termination or abandonment of this Lease by Lessee and no
modification or amendment of this Lease shall be binding upon a
Leasehold Mortgagee(s) or affect the lien of a Leasehold Mortgage(s)
if done without the written consent of any such Leasehold
Mortgagee(s).
(2) If Lessor shall give any notice, demand or election,
including any notice of default or termination (hereinafter in this
paragraph collectively referred to as "Notices"), to Lessee hereunder,
Lessor shall give such Notice to the Leasehold Mortgagee(s) (or to its
successor(s) by assignment), provided Lessor has been given written
notice of the existence of the Leasehold Mortgagee or its successor by
assignment and written directions for providing notice to said
36
Leasehold Mortgagee or successor assignee. No Notice given by Lessor
to Lessee shall be binding upon or affect any Leasehold Mortgagee(s)
unless a copy of said Notice shall be delivered as provided herein to
said Leasehold Mortgagee(s).
(3) Notwithstanding anything to the contrary herein, any
Leasehold Mortgagee(s) (and/or their representatives or assignees)
shall have the right to perform any term, covenant, condition or
agreement of this Lease to be performed by Lessee (excluding any
covenant condition or term in which the performance thereof would
require a gaming license) and to remedy any Default by Lessee
hereunder, and Lessor shall accept such performance by such Leasehold
Mortgagee(s) with the same force and effect as if furnished by Lessee.
[However, should a Leasehold Mortgagee(s) exercise its rights under
this provision, it will indemnify and hold Lessor harmless from and
against any and all loss, costs, liability and expense (including
reasonable attorneys' fees) resulting from such action to the extent
and so long as Lessor's actions are pursuant to and in compliance with
instructions from the Leasehold Mortgagee(s).]
(4) Provided lessor has been given written notice of the
existence of the Leasehold Mortgagee or its successor by assignment
and written direction for providing notice to said Leasehold Mortgagee
or successor assignee. If Lessor shall give a notice of a Default by
Lessee under this Lease and if such Default shall not be remedied
within any applicable grace period and Lessor shall become entitled to
re-enter Lease Premises or terminate this Lease, then, before
re-entering Lease Premises or terminating this Lease, Lessor shall
give the Leasehold Mortgagee(s) not less than sixty (60) days
additional written notice of the Default and shall allow such
Leasehold Mortgagee(s) such additional sixty (60) days within which to
cure the Default, or, in the case of a Default (other than a Default
in the payment of any rent or other sum of money under this Lease)
which cannot in the exercise of diligence be cured within said sixty
(60) day period, shall allow the Leasehold Mortgagee(s) such
additional sixty (60) days to commence the curing of the Default, in
which event Lessor shall not re-enter Lease Premises or terminate this
Lease, so long as the Leasehold Mortgagee(s), or Lessee, is diligently
and in good faith engaged in curing Default, so long as all payments
under this Lease remain current as described in this Lease during the
additional time to cure.
(5) Lessee may delegate irrevocably to the Leasehold
Mortgagee(s) the authority to exercise any or all of Lessee's rights
hereunder (including without limitation the authority to exercise any
option to extend or renew the term hereof), [but no such delegation
shall be binding upon Lessor unless and until either Lessee or the
Leasehold Mortgagee(s) shall give to Lessor a true copy by United
States Mail, postage prepaid, certified mail, of a written instrument
effecting such delegation and indemnifying Lessor for any dispute
between Lessor and Leasehold Mortgagee(s) relating to such delegation
or any conflicting claims as between Lessee and Leasehold Mortgagee(s)
so long as Lessor's actions are in compliance with and pursuant to
instructions from the Leasehold Mortgagee(s).]
37
For the purpose of exercising such rights, Leasehold Mortgagee(s)
shall, for the purposes of this Lease, be deemed to be the Lessee.
However, Lessee shall remain entitled to receive the notices provided
for under this Lease.
(c) Provided lessor has been given written notice of the existence of
the Leasehold Mortgagee or its successor by assignment and written direction for
providing notice to said Leasehold Mortgagee or successor assignee, if Lessor
terminates this Lease, then Lessor will notify the Leasehold Mortgagee(s) of
such termination ("Termination Notice"), which notice shall set forth all sums
due to Lessor under this Lease, and upon the written request of the Leasehold
Mortgagee(s), and provided all monetary events of default are cured and all
non-monetary events of default are in the process of being cured, or will begin
to be cured upon execution of a new lease, Lessor will enter into a new lease of
Lease Premises with the Leasehold Mortgagee(s) for the remainder of this Lease
term, effective as of the date of such termination, at the rent and additional
rent and upon the terms, provisions, covenants and agreements herein contained
(including, without limitation, all rights, options, or privileges to extend or
renew the term hereof) [provided:
(1) the Leasehold Mortgagee(s) shall each request Lessor for
such a new lease within sixty (60) days after the date of the
Termination Notice and such written request by United States Mail,
postage prepaid, certified mail, is accompanied by payment to Lessor
of all sums then due to Lessor under this Lease as described in the
Termination Notice;
(2) the Leasehold Mortgagee(s) shall pay to Lessor, at the time
of the execution and delivery of said new lease, any and all
reasonable expenses, including legal and attorneys' fees, to which the
Lessor shall have been subjected by reason of such termination; and
(3) the Leasehold Mortgagee(s) shall, on or before execution and
delivery of said new lease, perform and observe all the other
covenants and conditions on Lessee's part to be performed and observed
to the extent that Lessee shall have failed to perform and observe the
same, except that (a) with respect to any Default which cannot be
cured by the Leasehold Mortgagee(s) until it obtains possession of the
Lease Premises, the Leasehold Mortgagee(s) shall have a reasonable
time after the Leasehold Mortgagee(s) obtains possession, to cure such
Default, provided the Leasehold Mortgagee(s) shall first agree in
writing to proceed diligently to remedy said Default after it obtains
possession of the Lease Premises and shall in fact proceed diligently
and in good faith to do so and shall in fact so do, and (b) in no
event shall a Leasehold Mortgagee(s) be required to cure a Default
related to bankruptcy, insolvency, a prohibited transfer, failure to
deliver financial information relating to Lessee (to the extent, if
any, that any of the foregoing actually constitute(s) a non-monetary
Default under this Lease), and any other non-monetary Default that by
its nature relates only to Lessee or its affiliates or can reasonably
be performed only by Lessee or its affiliates. Upon execution and
delivery of such new lease, any subleases which may have theretofore
been assigned, and transferred to Lessor shall thereupon be assigned
and transferred by Lessor to the new lessee.] During the period from
the
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date of the termination of this Lease until the earlier of one hundred
eighty (180) days, or until the date the term of the new lease
commences, Lessor shall not terminate any sublease or seek to recover
possession of any sublet space without permission of the Leasehold
Mortgagee(s), except that Lessor may elect to do so by reason of a
Default (beyond any applicable notice or grace periods) by any
subtenant under the terms, covenants or conditions on such subtenant's
part to be performed or complied with pursuant to such sublease.
(d) Any new lease entered into pursuant to this Lease shall be in
recordable form. Notice is hereby given to any intervening claimants that to the
extent provided by law, such new lease shall be superior to all rights, liens
and interests intervening between the date of this Lease and the date of such
new lease period. To the extent provided by law, such new lease shall be free of
all rights of the originally named Lessee hereunder. The provisions of the
immediately preceding sentence shall be self-executing. Lessor, however, does
not in any way assure, guarantee or warrant that said new lease shall be
superior under applicable law and therein granted a priority status.
(e) Upon written request of Lessee or of a Leasehold Mortgagee(s),
Lessor will acknowledge to them or any of them in writing the receipt by Lessor
of any notice or instrument received by the Lessor pursuant to the provisions of
this Lease.
(f) The parties intend that, when a new lease is entered into with
the Leasehold Mortgagee(s) or its designee (such holder or designee being herein
called the "Acquiring Holder" and the leasehold mortgage of such Acquiring
Holder being herein called the "Acquiring Holder's Leasehold Mortgage(s)"), the
liens on and estates and other interests in Lease Premises or this Lease of all
persons holding directly or indirectly under or through Lessee (including the
Acquiring Holder's Leasehold Mortgage(s)); other than liens, estates and
interests which are subordinate to the Acquiring Holders Leasehold Mortgage(s),
shall, to the extent provided by law, immediately and without documentation
continue in effect, attach to the new lease and be reinstated as to each other
to the same extent, and in the same manner, order and priority, as if: (1) the
new lease were this Lease; (2) this Lease had not been terminated; and (3) the
Acquiring Holder had acquired the leasehold interest under this Lease by
assignment on the date the term of the new lease commences. For the purposes of
the preceding sentences, each lien, estate or interest which could have been
extinguished by the foreclosure of the Acquiring Holder's Leasehold Mortgage(s)
shall be deemed to be subordinate to the Acquiring Holder's Leasehold
Mortgage(s).
(g) Notwithstanding anything in this Lease to the contrary, the
Leasehold Mortgagee(s) shall be entitled to participate in any proceedings
relating to any condemnation of all or part of this Lease or the leasehold
interest created by this Lease. In both a partial and total taking, any award
paid with respect to this Lease or the leasehold interest created by this Lease
shall first be applied to payoff in full, the indebtedness secured by the
Leasehold Mortgage(s), from most senior lien to least senior lien in order of
priority. Notwithstanding the foregoing, in the event of a partial condemnation,
and with the consent of the Leasehold Mortgagee(s), any condemnation proceeds
may be applied instead to restore the portion of the Lease Premises not
condemned pursuant to disbursement procedures deemed appropriate by the
Leasehold Mortgagee(s).
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(h) Notwithstanding anything in this Lease to the contrary, all
proceeds of fire and other hazard insurance policies shall be delivered to the
Leasehold Mortgagee(s), if any. Such insurance proceeds shall be applied flat to
pay off in full, in order of priority, the indebtedness secured by the Leasehold
Mortgage(s), or as otherwise provided in the senior Leasehold Mortgage(s). The
Leasehold Mortgagee(s) are hereby empowered to participate in any settlement,
arbitration or proceeding involving such a casualty.
(i) The Leasehold Mortgagee(s) shall have the right, by giving notice
in writing to Lessor, to irrevocably and exclusively delegate any rights and
remedies granted by this Lease to the Leasehold Mortgage(s) to any collateral
assignee of the Leasehold Mortgagee(s) Leasehold Mortgage(s). Such collateral
assignee shall be entitled to all the same rights, benefits, privileges,
protections and notices as would apply to the Leasehold Mortgagee(s). In the
event of any conflicting claims between the Leasehold Mortgagee(s) and a
collateral assignee of such Leasehold Mortgagee(s)' Leasehold Mortgage(s),
Lessor shall honor the claims of the collateral assignee (to the exclusion of
the claims of the Leasehold Mortgagee(s)), provided that such collateral
assignee agrees to indemnify Lessor and hold Lessor harmless from and against
any and all loss, cost, liability and expense (including reasonable attorneys'
fees) arising from any litigation or other dispute between such collateral
assignee and the Leasehold Mortgagee(s) from which its rights derive.
(j) Within thirty (30) days after written request therefor from the
Leasehold Mortgagee(s), Lessor shall deliver to the Leasehold Mortgagee(s) a
certificate signed by Lessor in form reasonably designated by the Leasehold
Mortgagee(s), certifying as to: (1) the rent payable under this Lease; (2) the
term of this Lease and the status of Lessee's extension rights, if any, (3) the
nature of any known Defaults by Lessee alleged by Lessor; and (4) any other
matters reasonably requested by the Leasehold Mortgagee(s),
(k) Should Leasehold Mortgagee(s) for any reason take possession of
the Lease Premises, it shall be subject to and comply fully with all of the
provisions and conditions of this Lease which would bind the Lessee, but only
for so long as the Leasehold Mortgagee(s) has not assigned its interest under
this Lease or abandoned the Lease Premises.
(l) The Lessor agrees that the rights hereunder of Leasehold
Mortgagee(s) shall be exercisable by such Leasehold Mortgagee(s) in the order of
the priority of lien or other security interest of their respective Leasehold
Mortgage(s) as provided by law, but it shall not be the duty or obligation of
the Lessor to assure compliance with this provision.
(m) Lessor consents to any exercise of remedies by any Leasehold
Mortgagee(s) including acceptance of an assignment, deed or other conveyance in
lieu of foreclosure.
(n) Any notice which Lessor is required to give to any Leasehold
Mortgagee(s) hereunder shall be deemed to have been given when the United States
Postal Service certifies that such notice was delivered to the Leasehold
Mortgagee(s) at the address specified in this Lease or at such other address as
may be specified from time to time by the Leasehold Mortgagee(s).
40
(o) [In the event any party disputes the application of the proceeds
or any dispute develops between the parties over any portion of this Lease,
Lessor is hereby authorized to interplead the proceeds into the registry of the
Chancery Court of the Second Judicial District of Xxxxxxxx County, Mississippi,
and to seek a judicial determination of the rights of the parties. Lessor shall
not be liable to either party in connection with the performance of its duties
hereunder, and the parties do hereby waive any claims they may have against the
Lessor for performance of its duties in good faith, except in the event of gross
negligence or willful misconduct.]
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PARCEL X0
XXXXXXX XXXXXX EXTENSION
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
Xxxxxxxx County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, Xxxxxxxx County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet; thence run West for 21.29 feet; thence run South
00 degrees 22 minutes 56 seconds East for 56.28 feet to and for the POINT OF
BEGINNING.
From said POINT OF BEGINNING run South 89 degrees 56 minutes 41 seconds East for
16.57 feet; thence run South 00 degrees 28 minutes 40 seconds East for 165.94
feet; thence run South 43 degrees 48 minutes 30 seconds East for 45.54 feet;
thence run South 00 degrees 22 minutes 16 seconds East for 80.74 feet; thence
run North 89 degrees 52 minutes 45 seconds West for 70.46 feet; thence run South
00 degrees 42 minutes 50 seconds East for 111.52 feet; thence run South 89
degrees 07 minutes 28 seconds West for 12.17 feet; thence run North 00 degrees
29 minutes 01 second West for 250.29 feet; thence run North 01 degree 44 minutes
55 seconds West for 16.59 feet; thence run North 83 degrees 11 minutes 02
seconds West for 1.20 feet; thence run North 00 degrees 23 minutes 59 seconds
West for 124.18 feet; thence run South 89 degrees 51 minutes 31 seconds East for
35.92 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Section Blocks 100 and 130, Biloxi,
Xxxxxxxx County Second Judicial District, Mississippi and contains 18,828.39
square feet or 0.432 acres.
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LANDLORD'S ADDRESS: TENANT'S ADDRESS:
000 Xxxxxxx Xxxxxx Attn: Xxxxxx Xxxxxxxxx, Xx.
Xxxxxx, XX 00000 00000 Xxxxxxxx Xxxx
228-435-6254 Xxxxxxxx, XX 00000
000-000-0000
INDEXING INSTRUCTIONS: Biloxi Xxxxxxx Xxxxxx 000 xxx 000, 0xx X.X., Xxxxxxxx
Xxxxxx, XX
INSTRUMENT PREPARED BY: City of Biloxi, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
000-000-0000
43
