EXHIBIT 10.24
AGREEMENT AMENDING AND RESTATING THE
TRI-PARTY AGREEMENT DATED AS OF MAY 26, 1994, AMONG
HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE
CITY OF ATLANTIC CITY, FOREST CITY XXXXXX COMPANIES,
AND ATLANTIC CITY SHOWBOAT, INC., REGARDING DEVELOPMENT
OF A PORTION OF THE UPTOWN URBAN RENEWAL TRACT
DECEMBER 14, 1995
TABLE OF CONTENTS
Paragraph Pages
1. SCOPE, INTENT AND BINDING NATURE 6
OF THIS AGREEMENT
2. LANDS AFFECTED 8
3. TRACT 1 DEVELOPMENT 9
(A) Tract 1/Phase I Tower 9
(B) 80' FT. EASEMENT 11
4. TRACT 2 11
5. TRACT 3 14
6. PARCEL 11 16
7. PARCEL 15 17
8. TIMING OF CONVEYANCES/TAXES 19
9. PRIOR AGREEMENTS 21
10. ENTRANCE DRIVE ISSUES 25
(A) Transfer of Land 27
(B) Use 27
(C) Cost of Combined Service Drive 29
and Interim Service Drive
i
Paragraph Pages
(D) Loading Dock 31
(E) Configuration & Construction of 32
the Combined Service Xxxxx
00. XXXXX XX XXXXX XXXXX 00
00. VACATION OF RECONVEYED TRACTS 35
BY SHOWBOAT
13. DISPUTE RESOLUTION 37
14. ASSIGNMENT 40
(A) Assignment By FCRC and Showboat 40
(B) Assignment By ACHA 40
(C) Binding Effect 41
15. MISCELLANEOUS 42
(A) Building Height Restriction 42
(B) Pedestrian Bridges 42
(C) Relocation of Utilities 42
(D) (Intentionally Deleted and Omitted)
(E) Recording 43
(F) Notices 43
(G) Governing Law 44
(H) Entire Agreement 44
(I) Execution of Agreement 44
(J) CRDA Funding 44
(K) Settlement/Dismissal of Suit 45
(L) Covenants Implicitly Surviving
Closing 46
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EXHIBITS
(A) Plan to accompany Re-stated Tri-Party Agreement dated
12/1/95. Block 13, Lots 144.03, 144.04, 144.05 and 144.06 Dated
9/15/95, revised to 11/7/95.
(B) Legal Description - "Portion of Tract 1 to be conveyed to ACHA
7,333.57 SF"
(C) Legal Description - "Portion of Tract 1 to be Retained by Showboat
55,288.43 SF"
(D) Legal Description - "Portion of Tract 2 to be Conveyed to ACHA
57,435.09 SF"
(E) Legal Description - "Portion of Tract 2 to be Retained by Showboat
11,874.91 SF"
(F) Legal Description - "Portion of Tract 3 to be Conveyed to Showboat
1,200 SF"
(G) Legal Description - "Portion of Tract 3 to be Retained by ACHA
117,440 SF"
(H) Proposed Subdivision Plan Dated September 25, 1995, Revised to
November 7, 1995.
(I) Legal Description - "Portion of Service Road owned or to be owned
by ACHA 11,077.22 SF"
(J) Legal Description - "3243.52 SF P/O Service Road to be Retained
by Showboat"
(K) Legal Description - "Portion of Service Road owned or to be owned
by ACHA 8,654.45 SF"
(L) Legal Description - Block 15
(M) Legal Description - 80' Easement to be conveyed to ACHA
(N) Plan depicting FCRC Building set back restriction.
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EXHIBITS (CONT'D)
(O) Pages 10, 11 and 12 of Parcel
15 lease
(P) Surrender of Certificate of Deposit Assignment
(Q) Plan Showing improvements to landscape for property of Atlantic
City Showboat, Inc. dated 11/6/95 and 11/29/95
(R) Inter Party Releases
(S) Legal Description - "Fire Access Way, Service Road and Utility
Easement - 22,975.19 SF".
(T) Form of Deed - Parcel 15
(U) Form of Deed - "Portion of Tract 3 to be conveyed to Showboat -
1,200 SF"
(V) Form of Deed - "Portion of Tract 1 to be conveyed to ACHA -
7,333.57 SF" and Combined Service Drive
Easement;
"Portion of Tract 2 to be conveyed to ACHA -
57,435.09 SF" and Combined Service Drive
Easement;
80' Easement
Declaration of restriction as to portion of
Tract 2 to be retained by Showboat.
(W) Paragraphs 8(h), 8(i) 8(k) and 8(q) of Part I of the Showboat
Development Agreement and Paragraph 801 of Part II of the
Showboat Development Agreement
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AGREEMENT AMENDING AND RESTATING
TRI-PARTY AGREEMENT AMONG
HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE
CITY OF ATLANTIC CITY, FOREST CITY XXXXXX COMPANIES,
AND ATLANTIC CITY SHOWBOAT, INC., REGARDING DEVELOPMENT
OF A PORTION OF THE UPTOWN URBAN RENEWAL TRACT
THIS AGREEMENT by and among Housing Authority and Urban
Redevelopment Agency of the City of Atlantic City (hereinafter
"ACHA"), Forest City Xxxxxx Companies (hereinafter "FCRC") and
Atlantic City Showboat, Inc. (hereinafter "Showboat") dated
December 14, 1995, sets forth the amended and restated agreement
among those parties with respect to a portion of the Uptown Urban
Renewal Tract in the City of Atlantic City (hereinafter "UURT").
WHEREAS, ACHA, FCRC, and Showboat had, previous to May 26,
1994, entered into various memoranda and agreements specifically
identified as: (1) a Memorandum of Understanding dated May 24,
1993, between FCRC and ACHA (hereinafter "the FCRC MOU"), (2) a
Memorandum of Understanding by and among Showboat, FCRC and ACHA
dated May 24, 1993, also known as the "tripartite" Memorandum of
Understanding (hereinafter "the Tripartite MOU"), and (3) a
Contract For The Sale Of Land For Private Development entered
into between ACHA and Showboat dated June 11, 1993, along with
all Parts, Riders, and Exhibits annexed thereto and amendments
(hereinafter "The Showboat Development Agreement"), and
WHEREAS, the parties were granted certain rights, accepted
certain responsibilities and reached binding and non-binding
understandings with respect to the UURT pursuant to the
aforementioned Memoranda and Agreements regarding the development
of land within the UURT by both FCRC and Showboat, and
WHEREAS, certain development has taken place within the UURT
by Showboat in a manner consistent with the aforementioned
Agreements and Memoranda, and
WHEREAS, on May 26, 1994, the parties entered into that
certain agreement entitled "Tri-Party Agreement Among Housing
Authority and Urban Redevelopment Agency of the City of Atlantic
City, Forest City Xxxxxx Companies, and Atlantic City Showboat,
Inc.", regarding development of a portion of the Uptown Urban
Renewal Tract (hereinafter referred to as "the TPA"); and
WHEREAS, also on May 26, 1994, Showboat and ACHA entered
into Amendment No. 1 to the Showboat Development Agreement; and
WHEREAS, on January 25, 0000, XXXX, pursuant to the TPA,
declared FCRC to have "commenced development" of an
"entertainment complex" and entered into a certain agreement
(hereinafter referred to as "The FCRC Development Agreement");
and
WHEREAS, Showboat, in response to ACHA's determination of
January
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25, 1995, as aforesaid, filed suit in the Superior Court of New
Jersey, Atlantic County, Law Division, inter alia contesting
ACHA's determination that FCRC had "commenced development" of its
entertainment complex pursuant to the TPA and subsequently ACHA
and FCRC filed certain counter-claims with respect to the subject
matter here in issue; and
WHEREAS, on May 25, 0000, XXXX declared Showboat in default
of the Showboat Development Agreement on account of the subject
matter of the TPA and of the Showboat Development Agreement; and
WHEREAS, in response to said declaration of default Showboat
filed a certain lawsuit in the Superior Court of New Jersey,
Atlantic County; and
WHEREAS, Showboat desires ACHA to rescind said default and
to issue to Showboat a Certificate of Completion as defined in
Part II of the Showboat Development Agreement for the
improvements Showboat has caused to be erected upon the portions
of Tract 1 that Showboat will retain as hereinafter described.
See Exhibit C; and
WHEREAS, Showboat desires ACHA also to issue to it a
Certificate of Completion for a portion of Tract 2 to be retained
by Showboat and portion of Tract 3 which is to be conveyed to
Showboat pursuant to this Restated Agreement. See Exhibits E and
F;
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WHEREAS, the parties sincerely desire to settle their
differences, once and for all, with respect to the subject matter
of the aforesaid lawsuits and with respect to the future
development of the UURT and otherwise so that: (1)The
development of the undeveloped portions of the UURT may proceed;
(2) Showboat relinquishes any rights it may claim to influence or
control, or object to or contest, in any fashion the future
development of the UURT provided such development is consistent
with the redevelopment plan dated August 25, 1994, as amended by
Ordinance #102 of 1994 adopted on November 23, 1994, as may be
amended from time to time ("the Redevelopment Plan"), and with
other applicable land use laws. Showboat, however, reserves the
right to object to or contest any future development solely on
the grounds that such development is not in compliance with the
Redevelopment Plan or any other applicable land use law; (3)
Showboat's right and ability to develop its retained portion (as
hereinafter defined) of the UURT is preserved; and (4) the
Atlantic City community may enjoy the benefits of the
developments herein agreed to and described; and
WHEREAS, on December 22, 1994, Showboat entered into a
certain lease with ACHA for that certain parcel known as Parcel
15, City of Atlantic City, and pursuant to said lease has caused
certain improvements to be made on Parcel 15; and
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WHEREAS, Showboat wishes to acquire and ACHA, for the
consideration hereinafter recited, wishes to convey to Showboat
in fee simple all right, title and interest in and to Parcel 15
free of any and all requirements, restrictions, reverters or
encumbrances whatsoever, Showboat's use and ownership of said
Parcel 15 being subject only to any applicable land use laws, the
Redevelopment Plan and covenants contained in the deed of
conveyance; and
WHEREAS, pursuant to the aforementioned discussions ACHA,
FCRC and Showboat have reached agreement as to their respective
rights and responsibilities between Showboat and ACHA or between
Showboat and FCRC regarding certain portions of the UURT and
desire to memorialize those agreements in writing in order to
clearly establish those rights and responsibilities; and
WHEREAS, this document (hereinafter referred to as "this
Restated Agreement") is intended to set forth the aforementioned
rights and responsibilities between Showboat and ACHA or between
Showboat and FCRC with regard to future development of certain
portions of the UURT and is intended to replace and supersede the
agreements referred to in Paragraph 1(A) below with respect to
the parcels herein affected in their entirety.
IT IS HEREBY AGREED AS FOLLOWS:
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1. SCOPE, INTENT AND BINDING NATURE OF THIS AGREEMENT
(A) ACHA, FCRC and Showboat (hereinafter collectively
referred to as "the parties") hereby agree that this Restated
Agreement shall determine the future rights and obligations of
the parties with respect to certain portions of the UURT as more
specifically defined herein. The parties hereby acknowledge and
agree that this Restated Agreement is to be known as the Amended
and Restated Tri-Party Agreement dated as of December 14, 1995,
and shall take into account and will supersede the FCRC MOU, the
Tripartite MOU, and the Showboat Development Agreement, that
certain Memorandum of Understanding between Showboat and FCRC
dated as of July 24, 1995, and specifically replaces and
supersedes the TPA as well as the previously recited documents in
this Paragraph 1(A) and the Parcel 15 Lease and the Use and
Occupancy Agreement as hereinafter described. Based on that
understanding, the parties acknowledge and agree that they will
be bound by the following purposes and provisions of this
Restated Agreement.
(B) This Restated Agreement shall amend, modify and
supersede in its entirety the Showboat Development Agreement and
the TPA except as provided for in Paragraph 15(L) of this
Restated Agreement. Specifically, the only obligations between
Showboat and ACHA or between Showboat and FCRC that will survive
this Restated Agreement
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shall be as specifically set forth herein. This Restated
Agreement shall, without limitation, supersede the Parcel 15
Lease (except as set forth at paragraph 7 hereof), the Use and
Occupancy Agreement (except as set forth at paragraphs 8 and 12
hereof) and any right with respect to the purchase or sale of
Tract 3. Without limiting the foregoing, the parties agree that
this Restated Agreement shall finally and definitively state and
encompass all of the rights and obligations between Showboat and
ACHA or between Showboat and FCRC with respect to the lands
herein affected as described in Paragraph 2 in the City of
Atlantic City, superseding all prior agreements and
understandings with respect thereto, except as specifically
provided in this Restated Agreement.
(C) This Agreement also provides a procedure for the
expeditious and economical resolution of certain disputes between
Showboat and FCRC as hereinafter provided.
(D) As used in this Restated Agreement, the term "FCRC"
shall mean FCRC or any successor developer designated by ACHA,
and "ACHA" shall mean any successor, assign or designee of ACHA.
2. LANDS AFFECTED
This Restated Agreement shall govern the following portions
of the UURT with regard to existing and future development within
those areas:
(A) Tract 1 on the Plan prepared by Xxxxxx X. Xxxxxx
Company & Associates, dated May 12, 1993
(hereinafter "the Plan"), annexed
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to the TPA as Exhibit A, also known as Block 13,
Lot 144.03 on the tax map of the City of
Atlantic City as it existed on November 1, 1995
("the Tax Map").
(B) Tract 2 identified on the Plan also known as Block
13, Lot 144.04 on the Tax Map.
(C) Tract 3 identified on the Plan also known as Block
13, Lots 144.05 and 144.06 on the Tax Map.
(D) all portions known as "the 80' easement" identified
on the Plan also known as Block 13, Lot 144.06 on the
Tax Map.
(E) all portions of Block 13, Lots 144.01 and 144.02 on
the Tax Map.
(F) all portions of Parcel 11, bounded by Atlantic Avenue
on the North, New Jersey Avenue on the East,
Pacific Avenue on the South and Delaware Avenue on
the West, previously known as Block 11, Lots 77
and 78, as well as all portions thereof affected
by realigned Delaware Avenue (now known as Block 11,
Lot 79 on the Tax Map)
(G) all portions of Parcel 15, bounded by Atlantic Avenue
on the North, Delaware Avenue on the East, Pacific
Avenue on the South and Maryland Avenue on the West,
previously known as Block 15, Xxxx 00, 00, 00 00,
00 xxx 00 xxx Xxxxxx Xxxxxx Avenue, as well as all
portions thereof affected by realigned Delaware
Avenue (now known as Block 15, Lots 88 and 89 on the
Tax Map), more
8
particularly described in Exhibit L of this Restated
Agreement.
(H) All Portions of Block 10 on the Tax Map.
(I) All portions of Block 7, Lots 216.01, 216.02 and 217
on the Tax Map.
3. TRACT 1 DEVELOPMENT
(A) Tract 1\Phase I Tower. It is acknowledged by all
parties that pursuant to previous agreements and memoranda,
Showboat has developed a Hotel Tower on a portion of Tract 1.
Said Tract 1 was conveyed by ACHA to Showboat pursuant to the
Showboat Development Agreement. Tract 1 shall be subdivided as
depicted at Exhibits A and H of this Restated Agreement.
Showboat shall reconvey to ACHA as part of the consideration
recited in paragraph 7 of this Restated Agreement, that portion
of Tract 1 identified on Exhibit A to this Restated Agreement as
"Portion of Tract 1 to be conveyed to ACHA 7,333.57 SF". Said
portion of Tract 1 is more particularly described at Exhibit B of
this Restated Agreement. Showboat shall retain that portion of
Tract 1 identified on Exhibit A as "Portion of Tract 1 to be
retained by Showboat 55,288.43 SF". See Exhibit C. Showboat
agrees that it shall also grant to ACHA an easement within a
portion of the "Portion of Tract 1 to be Retained by Showboat"
(See Exhibit C) and within the parcel identified at Exhibit A of
this Agreement as
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"Portion of Tract 2 to be retained by Showboat 11,874.91 SF" as
more particularly discussed in paragraph 10 of this Restated
Agreement. ACHA acknowledges and agrees that Showboat has
completed development of the portion of Tract 1 to be retained in
accordance with the Showboat Development Agreement. Showboat has
submitted to ACHA and ACHA has approved that certain plan being
Exhibit Q of this Restated Agreement which pertains to
landscaping of that portion of Tract 1 identified at Exhibit A of
this Restated Agreement as "Area Reserved for Future Showboat
Hotel Tower Construction". Except as othewise provided in this
Restated Agreement, all other prior plans or agreements with
respect to Tract 1 are hereby superseded. ACHA agrees that,
immediately upon completion of the improvements to Tract 1
described at Exhibit Q of this Restated Agreement, it will issue
to Showboat a Certificate of Completion for Tract 1 as defined in
Part II of the Showboat Development Agreement and ACHA further
agrees that it will not withhold issuance of said Certificate of
Completion for any reason whatsoever other than Showboat's
failure to make the improvements depicted and described at
Exhibit Q of this Restated Agreement. Should a Certificate of
Completion not be issued to Showboat at Closing for any reason,
Showboat shall be permitted to request a Certificate of
Completion within a reasonable time after
10
Closing.
(B) 80 Ft. Easement. Pursuant to the Showboat Development
Agreement and the Tripartite MOU, Showboat obtained easement
rights to an area known as the "80' easement" which has been
described in the Showboat Development Agreement as an area solely
for pedestrian and/or vehicular ingress and egress to and from
Tract 1. Said 80' easement is more particularly described on the
Plan, as well as Exhibits A and M of this Restated Agreement.
Said 80' easement, pursuant to the Showboat Development
Agreement, had been deemed part of Tract 1 for all purposes
except certain ones provided for in Section 9 of the Rider
thereto. In consideration of providing Showboat an easement over
a portion of the Combined Service Drive as more particularly
provided for in paragraph 10 of this Restated Agreement and as
part of the consideration recited at paragraph 7 of this Restated
Agreement, Showboat's rights to the 80' easement shall cease and
shall be reconveyed by Showboat back to ACHA at Closing in order
to accomplish the intent of this Restated Agreement.
4. TRACT 2
The parties acknowledge that pursuant to the Showboat Development
Agreement and the Tripartite MOU, Showboat has been conveyed an
area within the UURT identified as Tract 2 on the Plan and more
11
specifically identified as Block 13, Lot 144.04 on the Tax Map.
Tract 2 shall be subdivided by Showboat as depicted and described
at Exhibits A and H of this Restated Agreement. Showboat shall
reconvey to ACHA as part of the consideration given pursuant to
paragraph 7 of this Restated Agreement, that portion of Tract 2
identified at Exhibit A to this Restated Agreement as "Portion of
Tract 2 to be conveyed to ACHA 57,435.09 SF". Said portion of
Tract 2 is more particularly described at Exhibit D of this
Restated Agreement. Showboat shall retain that portion of Tract
2 identified at Exhibit A of this Restated Agreement as "Portion
of Tract 2 to be Retained by Showboat 11,874.91 SF" free of all
restrictions, reverters, or requirements (including development
requirements)of any kind other than: (1) the requirement of
completing the improvements depicted at Exhibit Q of this
Restated Agreement;(2) the restriction (to be incorporated into
and recorded with the deed being Exhibit V to this Restated
Agreement) that the 15' wide strip extending along Showboat's
existing driveway from the boundary of Tract 3 shall be utilized
only for purposes of a pedestrian passageway, themeing and
screening in accordance with this Restated Agreement as more
particularly depicted on Exhibit Q of this Restated Agreement.
12
Subsequent to the issuance of a Certificate of Completion,
however, Showboat may at its discretion alter the improvements
depicted at Exhibit Q provided that such alteration remains
consistent with the foregoing restriction and the height
restriction referenced at Paragraph 10(E) of this Restated
Agreement; (3) the Redevelopment Plan; and (4) covenants
contained in the deed of conveyance. Showboat shall have the
right, but not the obligation, to develop a Phase II hotel tower
addition upon the retained portion of Tract 2 as more
particularly discussed at paragraph 11 of this Restated
Agreement, provided that it is consistent with the Redevelopment
Plan. ACHA agrees that immediately upon completion by Showboat of
the improvements depicted on Exhibit Q of this Restated
Agreement, it shall issue Showboat a Certificate of Completion
for the portion of Tract 2 retained by Showboat in accordance
with Part II of the Showboat Development Agreement. ACHA further
agrees that it shall not withhold issuance of such Certificate of
Completion for any reason whatsoever other than Showboat's
failure to complete such improvements. Should a Certificate of
Completion not be issued to Showboat at Closing for any reason,
Showboat shall be permitted to request a Certificate of
Completion within a reasonable time after Closing. The parties
agree that the previously defined rights and
13
obligations of Showboat contained in the agreements described in
Paragraph 1 of this Restated Agreement for its use of Tract 2 are
hereby modified and any rights which Showboat may have in the
portion of Tract 2 to be conveyed to ACHA pursuant to this
Restated Agreement are set forth in this paragraph 4 and are
further defined below in paragraphs 10, 11 and 12.
5. TRACT 3
The parties acknowledge and agree that the portion of the UURT
identified as Tract 3 on the Plan shall be subdivided by Showboat
at Showboat's expense on behalf of ACHA as more particularly
depicted on Exhibits A and H of this Restated Agreement and as
more particularly described at Exhibits F and G of this Restated
Agreement. In consideration of this Restated Agreement, ACHA
shall convey to Showboat at Closing that portion of Tract 3
identified on Exhibit A of this Restated Agreement as "Portion of
Tract 3 to be conveyed to Showboat 1200 SF", see Exhibits A and
F, free of any and all restrictions, reverters, or requirements
(including development requirements) of any kind, subject only to
the restriction that it shall be utilized for purposes of a
pedestrian passageway, theming and/or screening in accordance
with this Restated Agreement as more particularly described and
depicted at Exhibit Q of this Restated
14
Agreement as well as the Redevelopment Plan and covenants set
forth in the deed of conveyance. Subsequent to issuance of a
Certificate of Completion, however, Showboat may at its
discretion alter the improvements depicted at Exhibit Q provided
that such alteration remains consistent with the foregoing
restrictions and the height restriction referenced at Paragraph
10(E) of this Restated Agreement. ACHA agrees that immediately
upon completion by Showboat of the improvements depicted on
Exhibit Q of this Restated Agreement, it shall issue to Showboat
a Certificate of Completion for the portion of Tract 3 granted
to Showboat. ACHA further agrees that it shall not withhold
issuance of such Certificate of Completion for any reason
whatsoever other than Showboat's failure to complete such
improvements. Should a Certificate of Completion not be issued
to Showboat at Closing for any reason, Showboat shall be
permitted to request a Certificate of Completion within a
reasonable time after Closing.
Showboat herein acknowledges and agrees that it relinquishes
any rights which it may have had, or could have claimed, with
respect to Tract 3, with the exception of the Portion of Tract 3
to be conveyed to Showboat-1200 SF (See Exhibit F) pursuant to
this Restated
15
Agreement. Such rights shall include, but not be limited to,
those rights identified in the Showboat Development Agreement,
Section 8, wherein special provisions are identified for the
possible lease or purchase of Tract 3 by Showboat. To the extent
that there is any claim, or may be any claim, that the 80'
easement previously identified in paragraph 3 (B) is appurtenant
to, part of, or within Tract 3, the parties hereby recognize that
ACHA shall have the exclusive right to develop within the areas
of the 80' easement and that Showboat hereby acknowledges and
agrees that it relinquishes all rights that it may have in that
80' easement. Furthermore, the parties acknowledge that the Use
and Occupancy Agreement pertaining to Tract 3 and Block 13, Lot
144.02 on the Tax Map in favor of Showboat shall terminate as of
the date of Closing as recited at paragraph 8 of this Restated
Agreement and neither Showboat nor ACHA shall have any further
obligation with respect to said Use and Occupancy Agreement
subsequent to said date except as set forth in this Restated
Agreement.
6. PARCEL 11
Showboat herein specifically relinquishes any and all rights
which it may have to develop Parcel 11 for surface and/or
structured parking (or for any other use) whether pursuant to any
provision of the
16
Showboat Development Agreement, the TPA or any other agreement
with respect to, without limitation, the location of "additional
parking" within Parcel 11.
7. PARCEL 15
ACHA shall convey to Showboat at Closing the area known as Parcel
15 and which is also formerly known as Xxxxx 00, Xxxx 00, 00, 00
, 00, 84 and 85 and United States Avenue, and which is bounded by
Atlantic Avenue on the North, Maryland Avenue on the West,
Pacific Avenue on the South and realigned Delaware Avenue on the
East (now known as Block 15 Lots 88 and 89 on the Tax Map).
Parcel 15 is more particularly described in Exhibit L of this
Restated Agreement. At Closing and in consideration of this
Restated Agreement FCRC specifically relinquishes any and all
rights which it may have to develop Parcel 15 for surface and/or
structured parking or for any other purpose whatsoever. The
parties acknowledge that Showboat and ACHA entered into a certain
lease dated as of December 22, 1994, pursuant to which Showboat
leased and currently occupies Parcel 15 for a term ending
December 31, 1999. For and in consideration of the following,
ACHA shall convey to Showboat at Closing all right, title and
interest in Parcel 15:
1. Conveyance by Showboat to ACHA of the Portion of Tract 1
described at Exhibit B of this Restated Agreement;
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2. Conveyance by Showboat to ACHA of the Portion of Tract 2
described at Exhibit D of this Restated Agreement;
3. Conveyance by Showboat to ACHA (and extinguishment) of the
80' easement described at Exhibit M of this Restated
Agreement;
4. Intentionally deleted and omitted.
5. The grant by Showboat to ACHA of the easement for the
Combined Service Drive over portions of Tract 1 and Tract 2
to be retained by Showboat as described at Exhibit J of this
Restated Agreement;
6. Relinquishment by Showboat of all right, title and interest
in and to the sum of $150,000 (together with interest
accrued to the date of Closing) currently being held as
security deposit by ACHA pursuant to the previously
referenced lease of Parcel 15;
7. Showboat's convenant as set forth at paragraph 15(J) of this
Restated Agreement;
8. Payment to ACHA at Closing of the sum of one million eight
hundred ninety-nine thousand dollars ($1,899,000.00),
adjusted as of December 29, 1995, to credit Showboat with:
(1) interest accrued on the above referenced $150,000.00
Parcel 15 security deposit; and (2) the sum of $10,033.75
representing credit for a portion of the payment made by
Showboat to ACHA on or about November 1, 1995, on account of
the Use and Occupancy Agreement;
9. Such other agreements and undertakings as provided in this
Restated Agreement.
ACHA acknowledges that Showboat has complied with all of the
18
provisions of the Parcel 15 lease and is not in default thereof.
Upon conveyance of Parcel 15 by ACHA to Showboat, said Parcel 15
lease shall be of no further force or effect, with the exception
of Showboat's obligations set forth at Articles 8 and 9 of the
Parcel 15 lease, wherein Showboat covenanted to indemnify and
insure ACHA with respect to liability. A true copy of Articles 8
and 9 of the Parcel 15 lease is attached hereto as Exhibit O. It
is agreed that such Articles shall survive execution of this
Restated Agreement so that ACHA is protected by the provisions of
said Articles against claims accruing prior to December 29, 1995,
but not thereafter. At Closing, ACHA shall execute on its
letterhead the document being in the form of Exhibit P of this
Restated Agreement evidencing its surrender of its assignment of
a certain certificate of deposit in the amount of $405,000
previously delivered by Showboat to ACHA. ACHA agrees that
Showboat has completed Parcel 15 in accordance with the plans
submitted to and approved by ACHA. ACHA shall convey title to
Parcel 15 which is marketable and insurable at regular rates
without material exception and free of all encumbrances,
restrictions, requirements or reverters other than requirements
set forth in the deed of conveyance (see Exhibit T), the
Redevelopment Plan or in applicable land use laws.
8. TIMING OF CONVEYANCES/TAXES
Showboat at its sole cost and expense has had a Phase I
Environmental
19
Site Assessment prepared with respect to Tract 3 and Block 13,
Lot 144.02, the 80' easement and the portions of Tracts 1 and 2
to be reconveyed to ACHA pursuant to this Restated Agreement and
has delivered a copy thereof to ACHA and FCRC. Showboat shall,
prior to Closing, remediate the subject tracts as and to the
extent required under applicable law. In addition, from and
after Closing, Showboat shall indemnify and hold ACHA harmless
from and against any and all loss, cost, damage, claim or expense
from the contamination of such tracts which arose during the
period of Showboat's ownership or occupancy of the subject
tracts.
The parties acknowledge and agree that the conveyances of
property and grants of easements set forth in paragraphs 3, 4, 5,
6, 7 and 10 of this Restated Agreement shall be accomplished by
means of simultaneous conveyances by way of deeds dated as of
December 29, 1995, in the form of the documents being Exhibits T,
U and V of this Restated Agreement. Showboat and ACHA will
convey the parcels previously referred to free of all liens and
encumbrances and at Closing will execute the customary affidavit
of title. The delivery of documents and consideration herein
recited ("xxx Xxxxxxx") shall take place at the offices of ACHA
on December 15, 1995, and shall be effective December 29, 1995.
Showboat shall vacate such parcels or tracts on or prior to the
date that Showboat is required to convey
20
such parcels or tracts. It is understood, acknowledged and
agreed by the parties that with regard to any tracts or parcels
conveyed between the parties pursuant to this Restated
Agreement, ACHA shall have no real estate tax liability.
Showboat shall pay real property taxes on all parcels which it
owns and on the 80' easement until December 31, 1995.
Thereafter, the real estate taxes on or attributable to any lands
(including the 80' easement) conveyed by Showboat to ACHA
pursuant to this Restated Agreement, shall be paid by FCRC in
accordance with this Restated Agreement. Showboat and FCRC
herein acknowledge that ACHA is a tax exempt public entity which
shall have no obligation for any real estate taxes.
9. PRIOR AGREEMENTS
(A) Prior Showboat-ACHA Agreements. Notwithstanding
any provisions in this Restated Agreement
to the contrary, the following provisions of
The Showboat Development Agreement, true copies
of which are annexed hereto as Exhibit W, shall
survive Closing and shall be binding on
Showboat and ACHA: (1) Paragraphs 8(h), 8(i),
8(k) and 8(q) of Part I of the Showboat
Development Agreement; (2) Paragraph 801 of Part
II of the Showboat Development Agreement.
21
(B) Prior FCRC - ACHA Agreements. In addition to any
other provisions contained in this Restated
Agreement, ACHA and FCRC intend to be bound by
the provisions of the FCRC Development
Agreement which is currently in effect subject
to the following:
1. FCRC relinquishes any rights that it may have
pursuant to the FCRC Development Agreement to
any property that Showboat is retaining
pursuant to this Restated Agreement. FCRC
further agrees that it releases ACHA with
regard to any claims or liability which FCRC
could have asserted against ACHA with regard
to any property that Showboat is retaining
pursuant to this Restated Agreement.
2. FCRC and ACHA shall attempt to enter into a
Ground Lease on or before June 30, 1996. In
the event that FCRC and ACHA do not enter
into a Ground Lease by such date for any
reason, the Board of Commissioners of ACHA
shall have the right, in their sole
discretion, to adopt a resolution terminating
the FCRC Development Agreement ("Terminating
Resolution"). In the event that ACHA adopts
a Terminating Resolution, FCRC and
22
ACHA agree that the FCRC Development
Agreement shall terminate as of the date the
Terminating Resolution is adopted, that they
shall have no further responsibility to each
other, that FCRC unconditionally relinquishes
any interest it may have had in the FCRC
Development Agreement and property described
in the FCRC Development Agreement and that
they release each other from any and all
claims that they may have against each other
except as provided for in Paragraph 4(a)
of the FCRC Development Agreement with regard
to real estate taxes and the real estate tax
escrow. In the event that the FCRC
Development Agreement is terminated whether
by ACHA adopting a Terminating Resolution or
FCRC notifying ACHA of its election to
terminate the FCRC Development Agreement
before ACHA adopts a Terminating Resolution
and, in either event, FCRC executes a release
by September 30, 1996, providing that FCRC
unconditionally relinquishes any interest it
may have had in the FCRC Development
Agreement and the property described in the
FCRC Development Agreement and that
23
FCRC releases ACHA from any and all claims
FCRC may have against ACHA except as provided
for in paragraph 4(a) of the FCRC Development
Agreement with regard to real estate taxes
and real estate tax escrow ("the Release"),
then ACHA shall return the deposit made by
FCRC pursuant to Paragraph 4(a) of the FCRC
Development Agreement, or any unapplied
portion thereof, on or before December 1,
1996. ACHA agrees that in the event the
FCRC Development Agreement is terminated as
provided above and FCRC executes the Release
on or prior to September 30, 1996, the tax
escrow deposit may only be applied to the
real estate taxes assessed and actually
payable for the 1996 tax year, that is, the
period from January 1, 1996, through December
31, 1996. FCRC and ACHA agree, however, that
this Restated Agreement shall not constitute
an "...agreement...to allow Showboat to
continue to own the property in question..."
within the meaning of Paragraph 4(a) of the
FCRC Development Agreement. FCRC and ACHA
further agree that with regard to the June
30, 1996, date in this paragraph,
24
TIME IS OF THE ESSENCE and this date shall
not be subject to to cure periods, default
provisions or unavoidable delays pursuant to
the FCRC Development Agreement. The Board of
Commissioners of ACHA reserves the right in
its sole discretion and upon such terms as
ACHA determines are reasonable, to extend the
June 30, 1996, deadline through the adoption
of a Resolution prior to June 30, 1996,
authorizing an extension of the June 30,
1996, deadline.
3. FCRC and ACHA agree that an "Unavoidable
Delay" within the meaning of the FCRC
Development Agreement of nine months has
occured as a result of the Showboat
litigation. As a result, in accordance with
the FCRC Development Agreement, various dates
in the FCRC Development Agreement shall be
adjusted. By way of illustration, with
respect to ACHA's right to sublease pursuant
to Paragraph 4(c)(viii) the date will
extended to July 1, 1996.
10. ENTRANCE DRIVE ISSUES
The parties acknowledge and agree that the FCRC project
contemplates
25
a combined fire and service access drive to be constructed on the
land specifically identified at Exhibit A of this Restated
Agreement as "Fire Accessway, Service Road and Utility Easement",
which is more particularly described at Exhibit S of this
Restated Agreement. This constructed driveway shall be
hereinafter referred to as the "Combined Service Drive." The
parties acknowledge and agree that FCRC's obligations under this
Paragraph 10 are conditioned upon its execution of a Ground Lease
with ACHA. Nothing in the preceding sentence, however, shall
relieve any successor developer of FCRC of the obligations as set
forth in this Paragraph 10. The parties also acknowledge and
agree that the Combined Service Drive is being provided for
purposes of providing fire and emergency access to the FCRC
project and for the delivery of various items needed to service
that facility. Likewise, a portion of the Combined Service Drive
will be used by Showboat to accommodate the delivery needs of a
portion of its facility located adjacent to the Combined Service
Drive (to the extent feasible and not inconsistent with the
purpose of providing delivery access to the FCRC project) and
also to provide fire access and emergency egress for the Showboat
facility. More specifically, this facility includes the Phase I
Hotel Tower and may, in the future, also include a Phase II Hotel
Tower which may be
26
constructed pursuant to paragraph 11 of this Restated Agreement.
The parties acknowledge and agree that construction of this
Combined Service Drive to be utilized by both FCRC and Showboat
shall require the revision of certain rights and facilities as
follows:
(A) Transfer of Land
The parties acknowledge and agree that it will be necessary to
transfer, or to grant easements over, certain parcels currently
owned or under the control of Showboat in order to accomplish the
construction of the Combined Service Drive. The area within
which the easement shall be granted is more particularly depicted
on Exhibit A of this Restated Agreement and identified thereon as
"3243.52 SF P/O service road to be retained by Showboat" as is
more particularly described on Exhibit J of this Restated
Agreement. There shall be no monetary consideration for the
granting of this easement to ACHA. Subsequent thereto, the
parties acknowledge and agree that the easement identified herein
may be assigned from or rights otherwise granted therein from
ACHA to FCRC.
(B) Use
The Combined Service Drive shall be constructed by FCRC within
lands owned by ACHA or within lands owned by Showboat or to which
Showboat has granted ACHA an easement respectively and may be
used by FCRC for purposes of providing access for deliveries and
other service requirements to the FCRC project as such project
may be modified or
27
expanded, and for the construction, installation, maintenance,
repair, replacement and relocation of subterranean utilities,
including without limitation water and sewer lines and drains.
FCRC will require its general contractor for the Combined Service
Drive to deliver to Showboat a certificate evidencing general
liability insurance and naming Showboat as additional insured for
any work to be done on or under the land described at Exhibit J.
As stated above, Showboat shall also have a non-exclusive
easement to use a portion of the Combined Service Drive
identified more particularly at Exhibit S of this Restated
Agreement for purposes of providing for vehicular access for
deliveries and service requirements to a portion of its facility.
In addition, the easement granted by ACHA (with respect to both
the land owned by ACHA and the land over which ACHA has an
easement from Showboat) shall permit the Combined Service Drive
to be used by both FCRC and Showboat for the following purposes:
(1) fire or emergency access required by law or any governmental
entity; (2) the maintenance and repair of utilities or other
public improvements including beach and boardwalk maintenance in
favor of governmental entities and utility companies; and (3)
pedestrian access to the beach and boardwalk. Such easement
shall be conveyed to Showboat by ACHA at Closing and shall be in
the form as appears as Exhibit U to this Restated Agreement.
Showboat and FCRC will indemnify, defend and hold ACHA harmless
for any and all claims or suits for personal injury or property
damage arising out of the utilization of the Combined Service
28
Drive (or Interim Combined Service Drive as the case may be) by
their respective contractors, agents invitees, guests or
employees. The parties also anticipate and recognize Showboat's
need for loading dock access and fire/emergency egress for its
facility prior to construction of the Combined Service Drive but
subsequent to Closing. Therefore, ACHA's grant of easement over
the area in which the Combined Service Drive will be constructed
(see Exhibit S of this Restated Agreement) will include
Showboat's right to utilize such area for such purposes prior to
completion of construction of the Combined Service Drive. The
pre-constructed Combined Service Drive shall hereinafter be
referred to as the Interim Combined Service Drive. In the event
that the Interim Combined Service Drive becomes impassable due to
construction by FCRC, ACHA shall grant to Showboat a non-
exclusive license to utilize a 24 foot wide access-way to be
designated by ACHA to provide for vehicular access to Showboat's
delivery area. FCRC agrees that it shall make a good faith
effort to limit deliveries for the retail portion of the FCRC
project using the Combined Service Drive to normal weekday
business hours (Monday through Friday, 7:00 a.m. to 5:30 p.m.)
except for emergency or extraordinary circumstances. Such
efforts shall be undertaken by FCRC by enforcement of its rules
and regulations for the tenants or other occupants in the retail
portion of the FCRC project which shall limit times of delivery
as set forth above.
(C) Cost of Combined Service Drive and Interim
29
Combined Service Drive
It shall be the sole responsibility of FCRC to construct and bear
the cost of the Combined Service Drive. Such costs shall include
any taxes assessed on portions of the Combined Service Drive
constructed over lands owned (or to be owned) by ACHA and
relocation of utilities required to accommodate FCRC's
construction. In the event that a regulatory authority requires
a design change in the Combined Service Drive for purposes of
providing adequate fire access and emergency egress for the
Showboat facility as it exists on the effective date of this
Restated Agreement, FCRC shall bear the cost for such design
changes. Except as set forth in the preceding sentence, any
modification of the design and construction of the Combined
Service Drive at the request of Showboat which differs from that
design shown at Exhibit A, shall be subject to the approval of
ACHA and FCRC (which approval shall not be unreasonably withheld)
and shall be at the sole cost and expense of Showboat.
Notwithstanding the foregoing, however, in the event that
Showboat desires to use the Combined Service Drive to serve the
Phase II Tower, if such additional use, when considered together
with existing use and the actual use of the FCRC project, would
require any improvements or modification to the Combined Service
Drive, such improvements or modifications shall be subject to the
approval of ACHA and FCRC, not to be unreasonably withheld or
delayed, and shall be performed at Showboat's cost and expense,
including the
30
cost of obtaining any permits or approvals in connection
therewith. ACHA and FCRC shall inform Showboat in writing within
45 days of receipt by ACHA and FCRC of Showboat's written request
for any design change (which request must be accompanied by plans
and other information reasonably required to evaluate such
request) of their respective positions on any such request,
specifying with particularity the reasons for withholding any
approval. The work shall be performed by FCRC, or, at FCRC's
election, by Showboat. Any approved modification or improvement
will be performed in a manner which will not unreasonably
interfere with the use of the Combined Service Drive by ACHA,
FCRC or Showboat. Showboat shall be responsible for its
reasonable allocation, based on usage, of the costs of repair and
maintaining the Combined Service Drive but in no event shall such
share exceed 50% of the total costs of such maintenance. In the
event that Showboat elects to cause any improvements to be made
upon the Interim Combined Service Drive, such improvements shall
be at Showboat's sole cost and expense.
(D) Loading Dock
The parties acknowledge and agree, pursuant to the previous
memoranda and agreements entered into by them, that Showboat was
permitted to have access to its loading dock located next to its
facility in the vicinity of the Phase I Hotel Tower. Pursuant to
these previous agreements, Showboat was to reconfigure such
loading dock to accommodate the concerns of both Showboat and
FCRC in the development
31
of the FCRC project and the service entrances to be used
therewith. Pursuant to this Restated Agreement, the parties
acknowledge that the proposed FCRC project will be constructed
such that Showboat will have access to its loading dock through
the Interim Combined Service Drive or Combined Service Drive.
However, to the extent that Showboat requires that its current or
proposed loading dock be relocated as a result of the design of
the FCRC project, it is the sole obligation of Showboat to
undertake any such redesign, reconstruction and cost of
relocating or reconfiguring its loading dock. FCRC shall have no
responsibility to contribute to the cost of any such
reconfiguration but agrees to work in concert with Showboat in
order to accommodate any reconfiguration which may be necessary
during the construction of the FCRC project.
(E) Configuration and Construction of the Combined Service
Drive
The parties acknowledge and agree that the Interim Combined
Service Drive and the Combined Service Drive shall be located as
depicted on Exhibit A and as described at Exhibit S of this
Restated Agreement. FCRC acknowledges and agrees that since the
Combined Service Drive is to be located near Showboat's primary
entrance for the public, Showboat is concerned that the
configuration and construction of the Combined Service Drive be
accomplished in such a way as to minimize impacts upon Showboat's
primary entrance. Accordingly, FCRC and
32
Showboat agree that they will cooperate with each other and
coordinate their design efforts for the intersection of the
proposed Combined Service Drive with Pacific Avenue, in order to
develop screening and entry features that are compatible with the
designs and operational needs of each party's facility. Showboat
agrees that any screening feature which it constructs will be
limited in height to the height of the FCRC project building
height in front of which it is constructed. Showboat shall bear
the sole cost and expense of any screening erected on its
property. To the extent that Showboat and FCRC cannot agree to
any particular item involved in the development of the designs
for the Combined Service Drive or the screening and entry
features contained within that area, either party may, by notice
to the other parties, submit such dispute to be conclusively
determined by the dispute resolution procedure set forth in
paragraph 13 to this Restated Agreement.
11. PHASE II HOTEL TOWER
The parties acknowledge and agree that the prior memoranda and
agreements discuss and give certain rights to Showboat with
respect to the construction of a second hotel tower adjacent to
the Phase I Tower. This second tower shall be hereinafter
referred to as the "Phase II Tower". Pursuant to agreements
reached herein, FCRC, Showboat and ACHA agree that the Phase II
Tower location, should
33
Showboat at some point in the future in its sole and absolute
discretion decide to build it, will be constructed on portions of
Tract 1 and Tract 2 to be retained by Showboat. Although the
precise location of the Phase II Tower cannot be certainly stated
at this time, the parties anticipate that the Phase II Tower will
extend to the common property line. Showboat and FCRC agree to
cooperate to coordinate construction of their respective
facilities so as to promote and achieve the most expeditious and
economical construction schedule possible. Such specific items
shall include, but not be limited to, the foundations, supports
and pillars required, and the other facilities needed for, the
eventual construction of the Phase II Tower.
In order for Showboat ultimately to construct its Phase II Hotel
Tower, FCRC and Showboat recognize and agree that it will be
necessary for Showboat, prior to or contemporaneous with, FCRC's
construction, to install certain support structures and
foundations on Showboat's property adjacent to the Combined
Service Drive. Such support structures and foundations will
occupy an area extending from the sub-surface up to and possibly
exceeding 28.25 feet Mean Sea Level. Neither the construction,
use nor maintenance of the foundations and support structures
shall substantially interfere with the use of the
34
Combined Service Drive for its intended purposes. Such
foundations and support structures shall not be shared with or
used by FCRC in any way and shall be and remain the exclusive
property of Showboat. In order to facilitate and coordinate
Showboat's construction of said foundations and support
structures with FCRC's construction, FCRC will provide Showboat
with its construction schedule pertinent to the Combined Service
Drive as soon as such schedule becomes available. Showboat in
turn shall provide FCRC with its construction schedule pertinent
to the aforesaid foundations and support structures as soon as
such schedule becomes available. FCRC and Showboat shall allow
each other's contractors reasonable access to all areas of the
construction site reasonably required for each party's
construction efforts provided, however, that neither contractor
impedes or delays the progress of the other. All such access
shall be at the risk of the party entering. FCRC and Showboat
shall also allow each other's architects, contractors or
engineers to make inspections of the construction site and of the
work in progress or completed thereon.
12. VACATION OF RECONVEYED TRACTS BY SHOWBOAT
In recognition of the agreements reached herein with regard to
the use of the various portions of the UURT by FCRC, Showboat
acknowledges that it shall be required to vacate certain portions
of the UURT which will be reconveyed to ACHA pursuant to the
terms of this Restated
35
Agreement as well as Tract 3 and Block 13, Lot 144.02 on the Tax
Map. Consistent with the provisions and acknowledgments herein,
Showboat shall vacate such portions of the UURT immediately upon
consummation of the conveyances herein described. At the time of
reconveyance by Showboat, the parcels so reconveyed shall be free
and clear of all liens, encumbrances, leases or occupancy rights,
vacant and cleared of all debris, improvements or personal
property, subject to the existence of: (1) any subterranean
utilities, fixtures or items previously approved by ACHA; (2) and
subterranean utilities, fixtures or items existing as of July 7,
1993; and (3) surface improvements currently on the 80' easement.
As to the foregoing items (1) ,(2) and (3), Showboat shall have
no obligation to remove or clear. Showboat agrees that it shall
not have any claim against FCRC or ACHA for the loss of value of
any improvements or personal property remaining on the property
after the date for reconveyance. Showboat shall deliver such
property to ACHA in accordance with the provisions of paragraph 8
of this Restated Agreement. FCRC agrees to accept from ACHA the
parcels in the same condition as ACHA received them from
Showboat. ACHA currently holds the sum of seventy five thousand
dollars ($75,000.00) which Showboat has delivered to ACHA as a
security deposit pursuant to the Use and Occupancy Agreement.
ACHA and Showboat agree that ACHA shall continue to hold such
$75,000.00 to secure the performance of Showboat pursuant to the
provisions of this paragraph 12. ACHA shall deliver to Showboat
said $75,000.00
36
immediately upon satisfactory inspection by ACHA of the subject
tracts provided that ACHA in its reasonable discretion is
satisfied that Showboat has complied with the provisions of this
paragraph 12.
13. DISPUTE RESOLUTION
FCRC and Showboat acknowledge that this Restated Agreement calls
for their cooperation with regard to coordination of the
construction and use of the Combined Service Drive. Accordingly,
should such cooperation with respect to any one issue not result
in an agreement between FCRC and Showboat as to how to resolve
that issue, FCRC and Showboat are herein providing for a
methodology to resolve as expeditiously and economically as
possible any disputes which cannot be determined by their
cooperation. Any such dispute which cannot be resolved by FCRC
and Showboat shall be conclusively determined by an arbitration
panel consisting of one arbitrator selected by Showboat, one by
FCRC and a third selected by the first two arbitrators ("the
Panel"). In any instance of this Restated Agreement where
arbitration is specified for the resolution of a dispute, the
party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature
of the dispute, and said dispute shall be determined by three
arbitrators designated as hereinafter provided. The party
requesting arbitration shall designate in its notice requesting
such arbitration an arbitrator,
37
giving his/her name and address. The other party shall, within
ten days after the effective date of such notice, designate by
notice to the party requesting such arbitration a second
arbitrator, giving his/her name and address. The two arbitrators
so designated shall within ten days after the effective date of
the notice designating the second arbitrator designate a third
arbitrator. If a party who has the right to appoint an
arbitrator pursuant to the preceding sentence fails or neglects
to do so, then the other party (or if the two arbitrators
appointed by the parties fail to appoint a third arbitrator when
required hereunder, then either party) may apply to any court of
competent jurisdiction to appoint such arbitrator. The three
arbitrators shall proceed promptly to the resolution of the
dispute. The arbitrators shall conduct the arbitration in
accordance with the Commercial Rules of the American Arbitration
Association (or successor organization) then in effect. Upon
selection of the Panel to make a determination under this
Restated Agreement, and upon acceptance by the Panel of that
responsibility, the following procedure shall apply:
(1) Upon presentation of the issue in dispute to the Panel
tomake a determination, the Panel shall be designated as a
arbitrator of the outstanding issues between FCRC and Showboat.
38
(2) Within seven (7) days of notification to the Panel that it
shall be called upon to decide any issue in dispute, FCRC and
Showboat shall present to the Panel and to each other their
respective positions in writing, including an explanation of how
each party's position was calculated and any written
documentation to support such position.
(3) Within seven (7) days of receiving the information set forth
in paragraph 2, the Panel shall meet with FCRC and Showboat to
discuss the issues, at which time, the Panel may request any
additional information which it feels is needed to render a
decision. Such meeting shall be informal and shall not be
conducted as an adversarial proceeding nor shall the Rules of
Evidence under the laws of the State of New Jersey apply. At
this meeting, FCRC and Showboat may also present any additional
information which they feel is relevant.
(4) Within fifteen (15) days of conducting the meeting as set
forth in paragraph 3, the Panel shall render its decision in
writing to both FCRC and Showboat, with a copy to ACHA. If the
Panel cannot agree within fifteen days upon a resolution, the
third arbitrator shall determine the dispute, unless all of the
arbitrators agree to extend the determination period, but in no
event longer than an additional fifteen days. Said decision
shall be binding and
39
unappealable as to both FCRC and Showboat and shall be considered
a final decision reached through binding arbitration under the
laws of the State of New Jersey.
(5) When appropriate, Showboat and FCRC may agree to an
alternative form of dispute resolution if such alternative form
is identified in writing and agreed to by both FCRC and Showboat.
(6) FCRC and Showboat shall share equally the costs of
conducting any dispute resolution procedure pursuant to this
paragraph.
(7) ACHA shall be notified of any dispute submitted to
arbitration or dispute resolution and shall receive copies of all
documents submitted as part of the arbitration or dispute
resolution process. ACHA shall have the right to observe any
arbitration or dispute resolution proceedings and Showboat and
FCRC shall provide ACHA with notice of the outcome thereof.
14. ASSIGNMENT
(A) Assignment by FCRC and Showboat
Showboat and FCRC acknowledge and agree that each has the right
to assign this Restated Agreement, in whole or in part, subject
to the prior written approval of ACHA.
(B) Assignment by ACHA
Subject to the provisions of the following sentence, ACHA may
assign
40
this Restated Agreement, or any interest therein, without the
prior written consent of FCRC and Showboat. Notwithstanding the
foregoing, ACHA may not assign, delegate, sub-contract or
otherwise dispose of any of its "ACHA Functions" (as hereinafter
defined) unless such disposition is to a governmental entity and
any attempt to do so in violation of the foregoing shall be null
and void. For purposes of this section 14 (B), the term "ACHA
Functions" shall mean any rights, remedies, responsibilities or
obligations under this Restated Agreement with respect to: (i)
review and approval of FCRC's plans, designs, finishes and
materials for any improvements; (ii) the issuance of
Certificate(s) of Completion for any improvements; (iii)
enforcement of the Redevelopment Plan as it relates to the
parcels or tracts, or any part thereof, or of the affirmative
action requirements of the Redevelopment Plan. Notwithstanding
the foregoing, ACHA reserves the right to delegate or sub-
contract, to one or more parties acting on ACHA's behalf,
anything other than the ultimate responsibility for and decision
making with respect to the ACHA Functions.
(C) Binding Effect
This Restated Agreement shall be binding upon and inure to the
benefit of ACHA, FCRC and Showboat and their respective heirs,
executors, administrators, successors and assigns. However, in
the event that
41
after FCRC commences development, ACHA terminates the FCRC
Development Agreement, ACHA or its successor or assigns shall
have the right but not the obligation to complete the FCRC
project and/or fulfill any of FCRC's obligations pursuant to this
Restated Agreement, except that any successor or assigned must be
bound to complete construction of the Combined Service Drive.
15. MISCELLANEOUS
(A) FCRC agrees that its project shall not exceed fifty-two (52)
feet mean sea level in height within twenty-four (24) feet of
Showboat's property line as depicted at Exhibit N of this
Restated Agreement.
(B) It is also acknowledged and agreed that there may be a
desire by FCRC and Showboat to construct a connecting pedestrian
bridge between the proposed FCRC project and the existing
Showboat Casino Hotel facility to permit patrons to move between
those facilities. The location of any pedestrian bridge(s)
connecting the two facilities shall be mutually agreed upon by
FCRC and Showboat subject to approval by ACHA. The cost of such
pedestrian bridge(s), if constructed, shall be borne equally by
FCRC and Showboat.
(C) The parties anticipate that construction of the FCRC project
will require excavation and relocation of utilities currently
serving the Showboat facility. Such utilities include water,
sewer, drainage, electricity and other subterranean utilities.
To the extent that any utilities or other facilities or
improvements may need to be relocated as a result of the
reconveyance of the Tracts and the 80' easement
42
identified herein by Showboat to ACHA and the subsequent
conveyance by ACHA to FCRC, and in order to accommodate the FCRC
project, the expense for such relocation shall be the sole and
exclusive obligation of FCRC. Neither Showboat nor ACHA
undertakes any obligation whatsoever to pay for any such
relocation. However, this responsibility shall not include any
utility or facility relocation required to be undertaken as a
result of any decision by Showboat, pursuant to paragraph 11
hereof, to construct the Phase II Tower. Showboat shall have the
right to review and reasonably approve the design, the method and
timing of the relocation of any utilities that are tied into the
Showboat facilities in order to insure that such relocation will
not unreasonably interrupt utility service to the Showboat Casino
Hotel. Showboat shall respond to any written request for
relocation of utilities within thirty days of receipt. Any such
request must be accompanied by plans and other information
reasonable required to evaluate such requests. If Showboat
decides not to approve any such request, its response will
include a reasonably detailed explanation for its refusal to so
approve.
(D) (Intentionaly deleted and omitted).
(E) The parties agree that this Restated Agreement may be
recorded in the Office of the Atlantic County Clerk.
(F) Any notices consents, requests or approvals which are
required to be given with respect to any portion of this Restated
Agreement shall be given in writing by way of ordinary United
States mail by the party
43
giving such notice to both other parties to this Restated
Agreement addressed as follows:
As to Showboat: X.X. Xxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Legal Department
As to ACHA: 000 X. Xxxxxxx Xxxxxx
P.O. Box 1258
Xxxxxxxx Xxxx, XX 00000
Attention: Executive Director
As to FCRC: Xxx Xxxxx Xxxx Xxxxxx, Xxxxx
Xxxxxxxx, XX 00000
Attention: Legal Department
(G) This Restated Agreement shall be governed by and construed
under the laws of the State of New Jersey.
(H) This Restated Agreement constitutes the entire understanding
among the parties and may only be amended by a writing executed
by all the parties. The parties affirm that there are no other
agreements between Showboat and ACHA or Showboat and FCRC, with
respect to the issues addressed herein.
(I) This Restated Agreement may be executed in counterparts at
different locations or by signature of any of the parties
transmitted by an electronic means such as telecopier (fax), and
execution by such means shall bind the parties in the same manner
as if executed in person on the date of this Restated Agreement.
(J) Showboat acknowledges that FCRC desires to obtain funding
for
44
certain portions of its project from the Casino Reinvestment
Development Authority ("CRDA"). Showboat is willing to assist
construction of FCRC's project and in furtherance thereof will
provide or cause to be provided CRDA funds, in the form of a
grant in an amount equal to $2.5 million, toward construction of
the planned community facilities, including but not limited to
the skating rink, providing that in no event will Showboat make
any cash outlay on account of any portion of the FCRC project and
its financial assistance will be strictly limited to utilization
of available CRDA funds not to exceed the aforesaid $2.5 million.
Showboat agrees not to take any action to otherwise encumber such
funds for a period of three years from the date of this Restated
Agreement. In addition, Showboat, so long as there is no expense
incurred by it, will render its cooperation and assistance to
FCRC in obtaining any discretionary or "pool" CRDA funds from
CRDA. Showboat's interest in such "pool" CRDA funds shall not be
considered an expense incurred by Showboat for purposes of the
preceding sentence. Showboat makes no warranty or representation
that any funding described in this paragraph 15(J) will be
approved by the CRDA for the use herein contemplated and
Showboat's covenant herein shall be limited solely to making the
appropriate applications to CRDA in furtherance of the purposes
herein described and otherwise acting in good faith with respect
to its obligations as set forth herein.
(K) The parties acknowledge and agree that this Restated
Agreement is
45
intended, among other things, to memorialize the settlement
between them of those issues raised in those lawsuits now pending
between and among them being Atlantic City Showboat, Inc. v.
Housing Authority and Urban Redevelopment Agency of the City of
Atlantic City and Forest City Xxxxxx Companies, bearing Docket
Numbers ATL-L-00811-95-PW and ATL-L-001898-95-PW. The parties
hereby agree to stipulate to the dismissal of the above-
referenced lawsuits with prejudice, together with all counter-
claims, within five business days of Closing as described in
paragraph 8 of this Restated Agreement. The parties at the same
time will exchange mutual releases in the form set forth at
Exhibit R of this Restated Agreement.
(L) Notwithstanding any presumptions to the contrary, all
covenants, conditions and representations contained in this
Restated Agreement, which, by their nature, implictly or
expressly, involved performance, in any particular, after
Closing, or which cannot be ascertained to have been fully
performed until after Closing, shall survive Closing to the
extent provided in this Restated Agreement and the deeds
delivered pursuant hereto.
46
AMENDED AND RESTATED
TRI-PARTY AGREEMENT SIGNATURE PAGE
ATTEST: ATLANTIC CITY SHOWBOAT, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Assistant Secretary President and Chief Executive
Officer
STATE OF NEW JERSEY :
: SS
COUNTY OF ATLANTIC :
BE IT REMEMBERED, that on this 14th day of December, 1995,
before me, the subscriber, personally appeared Xxxxxxx X. Xxxxx
who I am satisfied is the person who signed the within instrument
as President Chief Executive Officer of Atlantic City Showboat,
Inc., the corporation named therein, and he acknowledged that he
signed, sealed with the corporate seal and delivered the same as
such officer aforesaid, and that the within instrument is the
voluntary act and deed of such corporation, made by virtue of a
Resolution of its Board of Directors.
/s/ Xxxxxxx X. Xxxxx
47
AMENDED AND RESTATED
TRI-PARTY AGREEMENT SIGNATURE PAGE
ATTEST: HOUSING AUTHORITY
AND URBAN REDEVELOPMENT AGENCY OF THE
CITY OF ATLANTIC CITY
/s/ By: /s/ Xxxx X. Xxxxxxxxxxx
Secretary Xxxx X. Xxxxxxxxxxx, Chairman
STATE OF NEW JERSEY :
SS
COUNTY OF ATLANTIC :
BE IT REMEMBERED, that on this 14th day of December, 1995,
before me, the subscriber, personally appeared Xxxx X.
Xxxxxxxxxxx who I am satisfied is the person who signed the
within instrument as Chairman of ATLANTIC CITY HOUSING AUTHORITY
AND URBAN REDEVELOPMENT AGENCY, the Agency named therein, and he
acknowledged that he signed, sealed with the Agency's seal and
delivered the same as such officer aforesaid, and that the within
instrument is the voluntary act and deed of such Agency, made by
virtue of a Resolution of its Members.
/s/ Xxxx X. Xxxxxxxx
48
AMENDED AND RESTATED
TRI-PARTY AGREEMENT SIGNATURE PAGE
FOREST CITY XXXXXX COMPANIES
ATTEST: BY XXXXXX GROUP, INC.,
GENERAL PARTNER
/s/ By: /s/ Xxxxx X. Xxxxxx
Secretary Xxxxx X. Xxxxxx, President
STATE OF NEW YORK :
: SS
COUNTY OF KINGS :
BE IT REMEMBERED, that on this 14th day of December, 1995,
before me, the subscriber, personally appeared Xxxxx X. Xxxxxx
who I am satisfied is the person who signed the within instrument
as President of Xxxxxx Group, Inc., a corporation which is
general partner of Forest City Xxxxxx Companies, and he
acknowledged that he signed, sealed with the corporate seal and
delivered the same as aforesaid officer, and that the within
instrument is the voluntary act and deed of such corporation,
made by virtue of a Resolution of its Board of Directors.
/s/ Xxxxxxxxxx X. Xxxxxxxx
49
Prepared by:
Record and return to
Xxxxxx X. Xxxxx, Esq.
Levine, Steller, Sklar, Chan,
Xxxxxxx & Xxxxxxxx, P.A. ______________________
0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx, Esquire
Xxxxxxxx Xxxx, XX 00000
RELEASE OF PART OF MORTGAGED PROPERTY
AND
SUBORDINATION AGREEMENT
THIS AGREEMENT is made as of the 14th day of December, 1995
by and between IBJ Xxxxxxxx Bank & Trust Company (as Trustee),
whose address is Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "Mortgagee") and Atlantic City
Showboat, Inc. whose address is 000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Mortgagor").
W I T N E S S E T H:
BACKGROUND
A. Mortgagor executed and delivered to Mortgagee (i) a
Leasehold Mortgage, Assignment of Rents and Security Agreement
dated as of May 18, 1993, recorded May 19, 1993 in the Office of
the Clerk of Atlantic County (the "Clerk's Office") in Mortgage
Book 5028, page 1, as amended by First Amendment to the Leasehold
Mortgage, Assignment of Rents and Security agreement dated July
9, 1993, recorded July 28, 1993 in the Clerk's Office in Mortgage
Book 5095, page 209 and Second Amendment to the Leasehold
Mortgage, Assignment of Rents and Security Agreement dated July
6, 1995, recorded September 14, 1995 in the Clerk's Office in
Mortgage Book 5702, page 223 and (ii) an Assignment of Leases and
Rents dated May 18, 1993,
recorded May 19, 1993 in the Clerk's office in Mortgage Book
5028, page 66 (together, the "Trust Mortgage"). Mortgagee also
holds an obligation for the payment of an indebtedness that is
secured by the Trust Mortgage.
B. Mortgagor executed and delivered to Showboat, Inc., a
Nevada corporation (i) a Leasehold Mortgage, Assignment of Rents
and Security Agreement dated May 18, 1993, recorded May 19, 1993
in the Clerk's Office in Mortgage Book 5028, page 79, amended by
First Amendment to the Leasehold Mortgage, Assignment of Rents
and Security Agreement dated July 9, 1993, recorded July 28, 1993
in Mortgage Book 5095, page 26 and amended by Second Amendment to
the Leasehold Mortgage, Assignment of Rents and Security
Agreement date July 6, 1995, recorded September 14, 1995 in the
Clerk's Office in Mortgage book 5702, page 236 and (ii) an
Assignment of Rents and Leases dated May 18, 1993, recorded in
the Clerk's Office in Mortgage Book 5028, page 144 (together, the
"Assigned Mortgage"). The Assigned Mortgage was assigned by
Showboat, Inc. to Mortgagee by assignment dated May 18, 1993,
recorded May 29, 1993 in the Clerk's Office in Assignment Book
624, page 195. Mortgagee also holds an obligation for the
payment of an indebtedness that is secured by the Assigned
Mortgage.
C. Pursuant to a Tri-Party Agreement among Mortgagor, the
Housing Authority and Urban Redevelopment Agency of the City of
Atlantic City (the "Housing Authority") and Forest City Xxxxxx
dated December 7, 1995 (the "Tri-Party Agreement"), Mortgagor
agreed to convey to the Housing Authority (i) certain land and
premises more particularly described on Exhibit "A" attached
hereto and made a part hereof (the "Release Parcels") and (ii) an
easement over a portion of lands and premises owned by Mortgagor
more particularly described on Exhibit "B" attached hereto and
made a part hereof (the "Easement Parcel") and the Housing
Authority has agreed to convey to Mortgagor the land and premises
described on Exhibit "C" attached hereto and made a
2
part hereof (the "Authority Lands").
D. On December 6, 1995, the Planning Board of Atlantic
City approved the re-subdivision of Lots 144.03, 144.04, 144.05
and 144.06 in Block 13 on the Tax Map of the City of Atlantic
City as reflected on a subdivision plan prepared by Xxxxxx X.
Xxxxxx Co. & Associates, Inc., last revised November 7, 1995 (the
"Subdivision Plat"). The Subdivision Plat has been, or is about
to be filed, in the Clerk's Office.
E. Mortgagor has requested Mortgagee to release the
Release Parcels encumbered by the Trust Mortgage and the Assigned
Mortgage and to subordinate the lien of the Trust Mortgage and
the Assigned Mortgage to the Easement Parcel.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Recitals. The recitals set forth above are hereby
incorporated in their entirety as if fully set forth at length.
2. Release of Part of Mortgaged Premises: Subordination.
2.1 Mortgagee hereby releases the Release Parcels from
the lien of the Trust Mortgage and the Assigned Mortgage. The
Release Parcels include (a) the land, (b) all buildings and other
improvements that are located on the land, (c) all fixtures that
are attached to the land or buildings, if any, and (d) all other
present rights of Mortgagee relating to the Release Parcels.
2.2 The rest of the property (not released) described
in the Trust Mortgage and the Assigned Mortgage remains subject
to the lien of such mortgages.
2.3 Subordination to Easement. Mortgagee hereby
subordinates the lien of the Trust Mortgage and the Assigned
Mortgage to the Easement Parcel for the uses and purposes
3
described therein.
3. Successors and Assigns. This Agreement inures to the
benefit of Mortgagor and is binding upon Mortgagee and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed the day and year first above written.
ATTEST: IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
________________________ By:________________________________
, Secretary , Vice-President
STATE OF NEW JERSEY :
: ss
COUNTY OF ATLANTIC :
BE IT REMEMBERED that on this_______ day of December,
1995, before me, the subscriber, a Notary Public of New Jersey,
personally appeared __________________________________________,
who, I am satisfied is the person who signed the within
instrument as Vice-President of IBJ Xxxxxxxx Bank & Trust
Company, as trustee, the corporation named therein, and he
thereupon acknowledged that the said instrument made by the
corporation and seal with its corporate seal, was signed, sealed
with the corporate seal and delivered by him as such officer, and
is the voluntary act and deed of the corporation, as trustee.
____________________________________
4
TRACT B (Identified in the Restated Agreement as "The 80'
Easement")
BEGINNING at a point in the westerly line of New Jersey Avenue
(50' wide), South 27 degrees, 28'00" seconds east a distance of
862.00' from the southerly line of Pacific Avenue (60' wide), and
extending from said beginning point; thence
1. South 27 degrees, 28'00" east in and along the
westerly line of New Jersey Avenue a distance of
80.00' to a point; thence
2. South 62 degrees, 32'00" west a distance of
140.00' to a point; thence
3. North 27 degrees, 28'00" west a distance of 80.00'
to a point; thence
4. North 62 degrees, 32'00" east a distance of
140.00' to the point and place of BEGINNING
CONTAINING an area of 11,200 square feet and being Block 13,
Lot 144.06 on the Tax Map of the City of Atlantic City as it
existed on November 1, 1995, and also being the lands and
premises over which a certain easement was granted to Grantor by
Grantee by deed dated July 7, 1993, and recorded in the Atlantic
County Clerk's Office in deed book 5524, page 201 et seq.
Exhibit A
page 1 of 3
TRACT A (Identified in the Restated Agreement as "Portion of
Tract 1 to be conveyed to ACHA-7,333.57SF")
Beginning at a point being South 62 degrees 32'00" West, 140.00'
from the westerly line of New Jersey Avenue (50.00' wide), and
South 27 degrees 28'00" East, 445.00' from the southerly line of
Pacific Avenue (60.00' wide), and extending from said beginning
point; thence
1. South 27 degrees 28'00" East, parallel with New
Jersey Avenue, 497.00' to the northerly line
of lot 144.02 in block 13; thence
2. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 13.00'; thence
3. North 27 degrees 28'00" West, parallel with New
Jersey Avenue, 419.73' to a point; thence
4. North 59 degrees 59'37" West, 20.77' to a point;
thence
5. North 27 degrees 28'00" West, parallel with New
Jersey Avenue 41.38' to a point; thence
6. North 59 degrees 59'37" West, 20.46' to a point;
thence
7. North 27 degrees 28'00" West, 1.13' to a point;
thence
8. North 62 degrees 32'00" East, parallel with
Pacific Avenue, 35.17' to the point and
place of BEGINNING.
CONTAINING an area of 7,333.57 square feet and being a
portion Block 13, Lot 144.03, Tax Map of the City of Atlantic
City as it existed on November 1, 1995, and also being a portion
of the lands and premises granted to Mortgagor by the Housing
Authority by deed dated July 7, 1993, and recorded in the
Atlantic County Clerk's Office in deed book 5524, page 201 et
seq.
Exhibit A
page 2 of 3
[Original typed on letterhead]
September 23, 1995
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being a PORTION OF TRACT 2 (LOT 144.04) TO BE CONVEYED TO THE
ATLANTIC CITY HOUSING AUTHORITY as shown on plan prepared by
Xxxxxx X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey
License No. 28314, plan dated September 25, 1995, bounded and
described as follows:
Beginning at a point being South 62 32'00" West, 251.00' from the
westerly line of New Jersey Avenue (50' wide), and South 27
28'00" East, 80.00' from the southerly line of Pacific Avenue
(60' wide), and extending from said beginning point; thence
1. North 62 32'00" East, parallel with Pacific Avenue,
151.00' to a point; thence
2. South 27 28'00" East, parallel with New Jersey Avenue,
583.00' to a point; thence
3. South 62 32'00" West, parallel with Pacific Avenue,
40.00' to a point; thence
4. North 27 28'00" West, parallel with New Jersey
Avenue, 218.00' to a point; thence
5. South 62 32'00" West, parallel with Pacific
Avenue, 35.17' to a point; thence
6. North 27 28'00" West, parallel with New Jersey
Avenue, 84.40' to a point; thence
7. South 62 32'00" West, parallel with Pacific
Avenue, 75.83' to a point; thence
8. North 27 28'00" West, parallel with New Jersey
Avenue, 280.60' to the point and place of BEGINNING.
CONTAINING an area of 57435.09 square feet
/s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx. Professional Land Surveyor
N.J. License No. 28314
Exhibit A
page 3 of 3
EXHIBIT "B"
EASEMENT PARCEL
TRACT D (Identified in the Restated Agreement as "3,243.52SF P/O
Service Road to be Retained by Showboat")
Beginning at a point being South 62 degrees 32'00" West, 251.00'
from the westerly line of New Jersey Avenue (50.00' wide) and
South 27 degrees 28'00" East, 360.60' from the southerly line of
Pacific Avenue (60.00 wide), and extending from said beginning
point; thence
1. North 62 degrees 32'00" East, parallel with
Pacific Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New
Jersey Avenue, 4.25' to a point; thence
3. South 59 degrees 59'37" East, 116.85' to a point;
thence
4. South 27 degrees 28'00" East, parallel with New
Jersey Avenue, 41.38' to a point; thence
5. North 59 degrees 59'37" West, 161.49' to a point;
thence
6. North 27 degrees 28'00" West, parallel with New
Jersey Avenue, 8.00' to the point and place of
BEGINNING
CONTAINING an area of 3243.52 square feet and being a
portion of Block 13 on the Tax Map of the City of Atlantic City
and also being a portion of the lands and premises granted to
Grantor by Grantee by deed dated July 7, 1993, and recorded in
the Atlantic County Clerk's Office in deed book 5524, pages 201
et seq. and 216 et seq. Said easement shall extend from the
subsurface to a height of 28.25 mean sea level and shall be for
the purpose of constructing and utilizing in accordance with the
Restated Agreement that certain improvement identified in the
Restated Agreement as the Combined Service Drive and also for the
purpose of constructing, relocating, maintaining, replacing and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
[Original typed on letterhead]
December 7, 1994
METES AND BOUNDS DESCRIPTION
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described
as follows:
BEGINNING at the southeasterly corner of Atlantic Avenue (100.00'
wide) and Maryland Avenue (60.00' wide) and extending from said
beginning point; thence
(1) North 62 degrees 32'00" East, in and along the southerly
line of Atlantic Avenue, a distance of 350.00' to the
westerly line of Delaware Avenue (82.00' wide); thence
(2) South 27 degrees 28'00" East, in and along the westerly line
of Delaware Avenue, a distance of 100.00' to a point of
curve; thence
(3) Curving to the left in the arc of a circle having a radius
of 429.00' and in and along the westerly line of Delaware
Avenue, the arc length of 104.82' to a point of tangent;
thence
(4) South 41 degrees 28'00" East, in and along the westerly line
of Delaware Avenue, a distance of 152.53' to a point of
curve; thence
(5) Curving to the right in the arc of a circle having a radius
of 315.00' and in and along the westerly line of Delaware
Avenue, the arc length of 76.97' to a point of tangent;
thence
(6) South 27 degrees 28'00" East, in and along the westerly line
of Delaware Avenue, a distance of 122.01' to the northerly
line Pacific Avenue; thence
(7) South 62 degrees 32'00" West, in and along the northerly
line of Pacific Avenue, a distance of 409.00' to the
easterly line of Maryland Avenue; thence
Exhibit C
page 1 of 4
(8) North 27 degrees 28'00" West, in and along the easterly line
of Maryland Avenue, a distance of 550.00' to the point and
place of BEGINNING.
BEING KNOWN AS Block 15 as shown on the current official taxing
plan of the City of Atlantic City, with a proposed vacation of
United States Avenue and realignment of Delaware Avenue.
CONTAINING an area of 209,013.13 square feet, or 4.80 Acres
Exhibit C
page 2 of 4
[Original typed on letterhead]
September 23, 1995
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being A PORTION OF TRACT 3 (LOT 144.05) TO BE CONVEYED TO
ATLANTIC CITY SHOWBOAT, INC. as shown on plan prepared by Xxxxxx
X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey License
No. 28314, plan dated September 25, 1995, bounded and described
as follows:
Beginning at a point in the southerly line of Pacific Avenue
(60.00' wide), South 62 32'00" West, 251.00' from the westerly
line of New Jersey Avenue (50.00' wide), and extending from said
beginning point; thence
1. South 27 28'00" East, parallel with New Jersey Avenue,
80.00' to a point; thence
2. South 62 32'00" West, parallel with Pacific Avenue,
15.00' to the easterly line of lot 140 in block 13; thence
3. North 27 28'00" West, in and along same, parallel with
New Jersey Avenue, 80.00' to the southerly line of Pacific
Avenue; thence
4. North 62 32'00" East, in and along same, 15.00' to the
point and place of BEGINNING.
CONTAINING an area of 1200 square feet.
/s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx. Professional Land Surveyor
N.J. License No. 28314
Exhibit C
page 3 of 4
EASEMENT
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 on the Atlantic City Tax Map, being A
PROPOSED FIRE ACCESSWAY, SERVICE ROAD AND UTILITY EASEMENT, as
shown on plan prepared by Xxxxxx X. Xxxxxx, Xx., Professional
Land Survey, New Jersey License No. 28314, plan last dated
November 7, 1995, entitled PLAN TO ACCOMPANY RE-STATED TRI-PARTY
AGREEMENT DATED 12/1/95, bounded and described as follows:
Beginning at a point in the southerly line of Pacific Avenue (60'
wide), said point being South 62 degrees 32'00" West, 251.00'
from the westerly line of New Jersey Avenue (50'), and extending
from said beginning point; thence
1. North 62 degrees 32'00" East, parallel with
Pacific Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New
Jersey Avenue, 364.85' to a point; thence
3. South 59 degrees 59'37" East, 182.26' to a point;
thence
4. South 27 degrees 28'00" East, parallel with New
Jersey Avenue, 423.48' to the northerly line of
lot 144.02; thence
5. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 24.00' to a point;
thence
6. North 27 degrees 28'00" West, parallel with New
Jersey Avenue, 419.73' to a point; thence
7. North 59 degrees 59'37" West, 182.26' to a point;
thence
8. North 27 degrees 28'00" West, parallel with New
Jersey Avenue, 360.68' to the point and place
of BEGINNING.
CONTAINING an area of 22,975.19 square feet.
Exhibit C
page 4 of 4
Record and return to Prepared by:
Xxxxxxx X. Xxxxxxx, Esq. /s/ Xxxxxx Xxxxx
Clark, Ladner, Xxxxxxxxxxx & Xxxxx Xxxxxx Xxxxx, Esquire
Woodland Falls Corporate Park
000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
FIRST AMENDMENT TO LEASEHOLD IN PARI PASSU MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
AND COLLATERAL ASSIGNMENT OF EASEMENT RIGHTS
MORTGAGE SPREADER AGREEMENT
THIS AGREEMENT is made as of this 15th day of December,
1995, by and between Atlantic City Showboat, Inc., a New Jersey
corporation, whose address is 000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Mortgagor"), and
NatWest Bank, N.A. (hereinafter referred to as "Mortgagee").
W I T N E S S E T H:
BACKGROUND.
A. Mortgagor executed and delivered to Mortgagee a
Leasehold in Pari Passu Mortgage, Assignment of Rents and
Security Agreement dated as of July 14, 1995, recorded September
14, 1995 in the Office of the Clerk of Atlantic County (the
"Clerk's Office") in Mortgage Book 5702, page 152 (the "NatWest
Mortgage") and related loan documents.
B. Pursuant to the terms of an agreement between Mortgagor
and Mortgagee, Mortgagor agreed to spread the lien of the NatWest
Mortgage to additional lands acquired by Mortgagor not encumbered
by the NatWest Mortgage.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
Recitals. The recitals set forth above are hereby
incorporated in their entirety as if fully set forth at length.
2. Agreement to Mortgage. Mortgagor hereby mortgages to
Mortgagee and intends that the lien of the Mortgage shall hereby
attach and spread to Mortgagor's right, title and interest in the
land and premises more particularly described on Exhibit "A"
attached hereto and made a part hereof and shall be deemed to be
a valid mortgage lien on such property under and subject to
easements, agreements and restrictions of record.
3. Collateral Assignment. Mortgagor collaterally assigns
to Mortgagee all of Mortgagor's rights in and to a certain
Service Road, Fire Accessway and Utility Easement identified as
proposed new lots 144.08 and 144.09 on Proposed Plan of
Subdivision prepared by Xxxxxx X. Xxxxxx, Xx., L.S., last revised
December 7, 1995, filed or about to be filed in the Atlantic
County Clerk's Office and more particularly described on Exhibit
"B" attached hereto and made a part hereof.
4. Successors and Assigns. This Agreement inures to the
benefit of Mortgagee, and is binding upon Mortgagor, and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed the day and year first above written.
ATTEST: ATLANTIC CITY SHOWBOAT, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx, Assistant Xxxxxxx X. Xxxxx, President
Secretary
STATE OF NEW JERSEY :
: ss
COUNTY OF ATLANTIC :
BE IT REMEMBERED that on this 20th day of December,
1995, before me, the subscriber, a Notary Public of New Jersey,
personally appeared Xxxxxxx X. Xxxxx, who, I am satisfied is the
person who signed the within instrument as President of Atlantic
City Showboat, Inc., the corporation named therein, and he
thereupon acknowledged that the said instrument made by the
corporation and sealed with its corporate seal, was signed,
sealed with the corporate seal and delivered by him as such
officer pursuant to a proper resolution of its Board of
Directors, and is the voluntary act and deed of the corporation.
/s/ Xxxxxxx X. Xxxxx
Metes and Bounds Description for property situate in the City of
Atlantic City, county of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being PROPOSED NEW XXX 000.00, XXXXX 00 XX XX OWNED BY ATLANTIC
CITY SHOWBOAT, INC. as shown on plan prepared by Xxxxxx X.
Xxxxxx, Xx., Professional Land Surveyor, New Jersey License No.
28314, plan dated September 25, 1995, last revised December 7,
1995 filed or to be filed in the Atlantic County Clerk's Office,
bounded and described as follows:
Beginning at a point in the southerly line of Pacific Avenue (60'
wide), South 62 degrees 32'00" West, 251.00' from the westerly
line of New Jersey Avenue (50' wide), and extending from said
beginning point; thence
1. South 27 degrees 8'00" East, parallel with New Jersey
Avenue, 360.60' to a point; thence
2. North 62 degrees 2'00" East, parallel with Pacific
Avenue, 75.83 to a point; thence
3. South 27 degrees 8'00" East, parallel with New Jersey
Avenue, 85.53' to a point; thence
4. South 59 degrees 9'37" East, 20.46' to a point; thence
5. South 27 degrees 8'00" East, parallel with New Jersey
Avenue, 41.38' to a point; thence
6. South 59 degrees 9'37" East, 20.77' to a point; thence
7. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 419.73' to a point in the northerly line of lot 144.02
in block 13; thence
8. South 62 degrees 32'00" West in and along same,
parallel with Pacific Avenue, 113.00' to the easterly line of lot
140 in block 13; thence
9. North 27 degrees 28'00" West, in and along same,
parallel with New Jersey Avenue, 942.00' to the southerly line
of Pacific Avenue; thence
10. North 62 degrees 32'00" East in and along same, 15.00'
to the point and place of BEGINNING.
CONTAINING an area of 68,363.34 square feet.
Exhibit A
page 1 of 2
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at the southeasterly corner of Atlantic Avenue (100.00'
wide) and Maryland Avenue (60.00' wide) and extending from said
beginning point; thence
(1) North 62 degrees 32' 00" East, in and along the
southerly line of Atlantic Avenue, a distance of 350.00'
to the westerly line of Delaware Avenue (82.00' wide);
thence
(2) South 27 degrees 28' 00" East, in and along the
westerly line of Delaware Avenue, a distance of 100.00' to
a point of curve; thence
(3) Curving to the left in the arc of a circle having a
radius of 429.00' and in and along the westerly line of
Delaware Avenue, the arc length of 104.82' to a point of
tangent; thence
(4) South 41 degrees 28' 00" East, in and along the
westerly line of Delaware Avenue, a distance of 152.53' to
a point of curve; thence
(5) Curving to the right in the arc of a circle having a
radius of 315.00' and in and along the westerly line of
Delaware Avenue, the arc length of 76.97' to a point of
tangent; thence
(6) South 27 degrees 28' 00" East, in and along the
westerly line of Delaware Avenue, a distance of 122.01'
to the northerly line of Pacific Avenue; thence
(7) South 62 degrees 32' 00" West, in and along the
northerly line of Pacific Avenue, a distance of 409.00'
to the easterly line of Maryland Avenue; thence
(8) North 27 degrees 28' 00" West, in and along the
easterly line of Maryland Avenue, a distance of 550.00'
to the point and place of BEGINNING.
BEING KNOWN AS Block 15 as shown on the current official
taxing plan of the City of Atlantic City, with a proposed
vacation of United States Avenue and realignment of Delaware
Avenue.
CONTAINING an area of 209,013.13 square feet, or 4.80 Acres.
Exhibit A
page 2 of 2
EASEMENT
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 on the Atlantic City Tax Map, being a portion
of A PROPOSED FIRE ACCESS WAY, SERVICE ROAD AND UTILITY
EASEMENT, as shown on plan prepared by Xxxxxx X. Xxxxxx, Xx.,
Professional Land Survey, New Jersey License No. 28314, plan last
dated November 7, 1995, entitled PLAN TO ACCOMPANY RE-STATED TRI
PARTY AGREEMENT DATED 12/1/95, bounded and described as follows:
BEGINNING at a point in the Southerly line of Pacific Avenue (60'
wide), said point being South 62 degrees 32'00" West, 251.00'
from the Westerly line of New Jersey Avenue (50'), and extending
from said beginning point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 360.60' to a point; thence
3. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 24.00' to a point; thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 360.60' to the point and place of BEGINNING.
CONTAINING an area of 8,654.45 square feet and being the
same easement conveyed by Deed dated December 29, 1995, from the
Housing Authority and Redevelopment Agency of the City of
Atlantic City to Atlantic City Showboat, Inc.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit B
page 1 of 2
Metes and Bounds Description for property situate in the city of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being a portion of a proposed Fire Access Way, Service Road and
Utility Easement (PROPOSED NEW LOT C) to be owned by the Atlantic
City Housing Authority as shown on plan prepared by Xxxxxx X.
Xxxxxx, Xx., Professional Land Surveyor, new Jersey License No.
28314, plan dated September 25, 1995, bounded and described as
follows:
Beginning at a point in the Northerly line of lot 144.02 in Block
13 as shown on the Atlantic City Tax Map, said point being South
62 degrees 32'00" West, 129.00' from the Westerly line of New
Jersey Avenue (50' wide), and South 27 28'00" East, 942.00'
from the Southerly line of Pacific Avenue (60' wide), and
extending from said beginning point; thence
1. South 62 degrees 32'00" West, in and along the
Northerly line of Lot 144.02, parallel with Pacific Avenue,
24.00' to a point; thence
2. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 419.73' to a point; thence
3. North 59 degrees 59'37" West, 20.77' to a point; thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 41.38' to a point; thence
5. South 59 degrees 59'37" East, 65.41' to a point; thence
6. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 423.48' to the point and place of BEGINNING.
CONTAINING an area of 11,077.22 square feet.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit B
page 2 of 2
Record and return to Prepared by:
Xxxxxxx X. Xxxxxxx, Esq.
0 Xxxxxxxxxxx Xx.
00 X. Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx, Esq.
Suite 2700 Xxxxxx Xxxxx, Esq.
Xxxxxxx, Xxxxxxx 00000
THIRD AMENDMENT TO THE LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT DATED AS OF MAY 18, 1993
MORTGAGE SPREADER AGREEMENT
THIS AGREEMENT is made as of this 14th day of December,
1995, by and between Atlantic City Showboat, Inc., a New Jersey
corporation, whose address is 000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Mortgagor"), and IBJ
Xxxxxxxx Bank & Trust Company (as Trustee), whose address is Xxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to
as "Mortgagee").
W I T N E S S E T H:
BACKGROUND.
A. Mortgagor executed and delivered to Mortgagee (i) a
Leasehold Mortgage, Assignment of Rents and Security Agreement
dated as of May 18, 1993, recorded May 19, 1993 in the Office of
the Clerk of Atlantic County (the "Clerk's Office") in Mortgage
Book 5028, page 1, as amended by First Amendment to the Leasehold
Mortgage, Assignment of Rents and Security Agreement dated July
9, 1993, recorded July 28, 1993 in the Clerk's Office in Mortgage
Book 5095, page 209 and Second Amendment to the Leasehold
Mortgage, Assignment of Rents and Security Agreement dated July
6, 1995, recorded September 14, 1995 in the Clerk's Office in
Mortgage Book 5702, page 223 and (ii) an Assignment of Leases and
Rents dated May 18, 1993,
1
recorded May 19, 1993 in the Clerk's office in Mortgage
Book 5028, page 66 (together, the "Trust Mortgage").
B. Mortgagor executed and delivered to Showboat, Inc.,
a Nevada corporation (i) a Leasehold Mortgage, Assignment of
Rents and Security Agreement dated May 18, 1993, recorded May
19, 1993 in the Clerk's Office in Mortgage Book 5028, page 79,
amended by First Amendment to the Leasehold Mortgage,
Assignment of Rents and Security Agreement dated July 9, 1993,
recorded July 28, 1993 in Mortgage Book 5095, page 26 and amended
by Second Amendment to the Leasehold Mortgage, Assignment
of Rents and Security Agreement dated July 6, 1995, recorded
September 14, 1995 in the Clerk's Office in Mortgage Book
5702, page 236 and (ii) an Assignment of Rents and Leases dated
May 18, 1993, recorded in the Clerk's Office in Mortgage Book
5028, page 144 (together, the "Assigned Mortgage"). The
Assigned Mortgage was assigned by Showboat, Inc. to Mortgagee
by assignment dated May 18, 1993, recorded May 29, 1993 in
the Clerk's Office in Assignment Book 624, page 195.
C. On December 6, 1995, the Planning Board of Atlantic
City approved a re-subdivision of Lots 144.03, 144.04, 144.05 and
144.06 in Block 13 on the Tax Map of the City of Atlantic City as
reflected on a subdivision plan prepared by Xxxxxx X. Xxxxxx Co.
& Associates, Inc., last revised November 7, 1995 (the
"Subdivision Plat"). The Subdivision Plat shall be filed in the
Clerk's Office prior to the recording of this Agreement.
D. Pursuant to a Tri-Party Agreement among Mortgagor, the
Housing Authority and Forest City Xxxxxx dated December 14, 1995
(the "Tri-Party Agreement"), Mortgagor agreed to convey to the
Housing Authority (i) all Mortgagor's right, title and interest
in certain land and premises more particularly described on
Exhibit "A" attached hereto and made a part hereof (the
2
"Release Parcels") and (ii) an easement over a portion of
lands and premises owned by Mortgagor more particularly
described on Exhibit "B" attached hereto and made a part hereof
(the "Easement Parcel") and the Housing Authority has agreed
to convey to Mortgagor the land and premises described on
Exhibit "C" attached hereto and made a part hereof (the
"Authority Lands") and to grant to Mortgagor a certain
easement with respect to that certain Proposed Fire Access
way, Service Road and Utility Easement described on Exhibit
"D" attached hereto and made a part hereof (the "Fire Access
way").
E. In consideration for the release by Mortgagee of the
Release Parcels and subordination of the Trust Mortgage and the
Assigned Mortgage to the Easement Parcel, Mortgagor has agreed to
mortgage to Mortgagee the Authority Lands and to collaterally
assign all of its right, title and interest in and to its
easement to utilize the Fire Access way.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Recitals. The recitals set forth above are hereby
incorporated in their entirety as if fully set forth at length.
2. Agreement to Mortgage. Mortgagor hereby mortgages the
Authority Lands to Mortgagee and intends that the lien of the
Mortgage shall hereby attach and spread to Mortgagor's right,
title and interest in the Authority Lands and shall be deemed to
be a valid mortgage lien on such property under and subject to
easements, agreements and restrictions of record.
3. Agreement to Collaterally Assign. Mortgagor
hereby collaterally assigns to Mortgagee its easement to
utilize the Fire Access way.
3
4. Successors and Assigns. This Agreement inures to
the benefit of Mortgagee, and is binding upon Mortgagor and
their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed the day of the year first above written.
ATTEST: ATLANTIC CITY SHOWBOAT, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxx
Assistant Secretary President and CEO
STATE OF NEW JERSEY:
: ss
COUNTY OF ATLANTIC:
BE IT REMEMBERED that on this 20th day of December,
1995, before me, the subscriber, a Notary Public of New Jersey,
personally appeared Xxxxxxx X. Xxxxx, who, I am satisfied is the
person who signed the within instrument as President of Atlantic
City Showboat, Inc., the corporation named therein, and he
thereupon acknowledged that the said instrument made by the
corporation and sealed with its corporate seal, was signed,
sealed with the corporate seal and delivered by him as such
officer pursuant to a proper resolution of its Board of
Directors, and is the voluntary act and deed of the corporation.
/s/ Xxxxxxx X. Xxxxx
TRACT B (Identified in the Restated Agreement as "The 80'
Easement")
BEGINNING at a point in the westerly line of New Jersey Avenue
(50' wide), South 27 degrees, 28'00" seconds east a distance
of 862.00' from the southerly line of Pacific Avenue (60' wide),
and extending from said beginning point; thence
1. South 27 degrees, 28'00" east in and along the westerly
line of New Jersey Avenue a distance of 80.00' to a
point; thence
2. South 62 degrees, 32'00" west a distance of 140.00' to
a point; thence
3. North 27 degrees, 28'00" west a distance of 80.00' to a
point; thence
4. North 62 degrees, 32'00" east a distance of 140.00' to
the point and place of BEGINNING
CONTAINING an area of 11,200 square feet and being Block 13,
Lot 144.06 on the Tax Map of the City of Atlantic City as it
existed on November 1, 1995, and also being the lands and
premises over which a certain easement was granted to Grantor by
Grantee by deed dated July 7, 1993, and recorded in the Atlantic
County Clerk's Office in deed book 5524, page 201 et seq.
Exhibit A
page 1 of 3
TRACT A (Identified in the Restated Agreement as "Portion of
Tract 1 to be conveyed to ACHA-7,333.57SF")
Beginning at a point being South 62 degrees 32'00" West, 140.00'
from the westerly line of New Jersey Avenue (50.00' wide), and
South 27 degrees 28'00" East, 445.00' from the southerly line of
Pacific Avenue (60.00'wide), and extending from said beginning
point; thence
1. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 497.00' to the northerly line of lot 144.02 in
block 13; thence
2. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 13.00'; thence
3. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 419.73' to a point; thence
4. North 59 degrees 59'37" West, 20.77' to a point; thence
5. North 27 degrees 28'00" West, parallel with New Jersey
Avenue 41.38' to a point; thence
6. North 59 degrees 59'37" West, 20.46' to a point; thence
7. North 27 degrees 28'00" West, 1.13' to a point; thence
8. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 35.17' to the point and place of BEGINNING.
CONTAINING an area of 7,333.57 square feet and being a
portion Block 13, Lot 144.03, Tax Map of the City of Atlantic
City as it existed on November 1, 1995, and also being a portion
of the lands and premises granted to Mortgagor by the Housing
Authority by deed dated July 7, 1993, and recorded in the
Atlantic County Clerk's Office in deed book 5524, page 201 et
seq.
Exhibit A
page 2 of 3
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being a PORTION OF TRACT 2 (LOT 144.04) TO BE CONVEYED TO THE
ATLANTIC CITY HOUSING AUTHORITY as shown on plan prepared by
Xxxxxx X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey
License No. 28314, plan dated September 25, 1995, bounded and
described as follows:
Beginning at a point being South 62 degrees 32'00" West, 251.00'
from the westerly line of New Jersey Avenue (50' wide), and
South 27 28'00" East, 80.00' from the southerly line of Pacific
Avenue (60' wide), and extending from said beginning point;
thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 151.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with new Jersey
Avenue, 583.00' to a point; thence
3. South 62 degrees 32'00" West, parallel with Pacific
Avenue, 40.00' to a point, thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 218.00' to a point; thence
5. South 62 degrees 32'00" West, parallel with Pacific
Avenue, 35.17' to a point; thence
6. North 27 degrees 28'00" West, parallel with New Jersey
Avenue 84.40' to a point; thence
7. South 62 degrees 32'00" West, parallel with Pacific
Avenue, 75.83' to a point; thence
8. North 27 degrees 28'00" West, parallel with New Jersey
Avenue 280.60' to the point and place of BEGINNING.
CONTAINING an area of 57,435.09 square feet.
Exhibit A
page 3 of 3
EASEMENT PARCEL
TRACT D (Identified in the Restated Agreement as "3,243.52SF P/O
Service Road to be Retained by Showboat")
Beginning at a point being South 62 degrees 32'00" West, 251.00'
from the westerly line of New Jersey Avenue (50.00' wide) and
South 27 degrees 28'00" East, 360.60' from the southerly line of
Pacific Avenue (60.00 wide), and extending from said beginning
point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 4.25' to a point; thence
3. South 59 degrees 59'37" East, 116.85' to a point;
thence
4. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 41.38' to a point; thence
5. North 59 degrees 59'37" West, 161.49' to a point;
thence
6. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 8.00' to the point and place of BEGINNING
CONTAINING an area of 3243.52 square feet and being a
portion of Block 13 on the Tax Map of the City of Atlantic City
and also being a portion of the lands and premises granted to
Grantor by Grantee by deed dated July 7, 1993, and recorded in
the Atlantic County Clerk's Office in deed book 5524, pages 201
et seq. and 216 et seq. Said easement shall extend from the
subsurface to a height of 28.25 mean sea level and shall be for
the purpose of constructing and utilizing in accordance with the
Restated Agreement that certain improvement identified in the
Restated Agreement as the Combined Service Drive and also for the
purpose of constructing, relocating, maintaining, replacing and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit B
page 1 of 2
RESTRICTION/MORTGAGOR
Declaration of Restriction. Furthermore, Mortgagor herein
acknowledges and accepts those certain restrictions upon the use
of a certain portion of Block 13, Lot 144.04 on the Tax Map of
the City of Atlantic City as it existed on November 1, 1995, such
restrictions being more particularly set forth at paragraph 3 of
that certain Restated Agreement referenced above. Said portion
of Block 13, Lot 144.04 is a portion of the parcel identified in
the Restated Agreement as "Portion of Tract 2 to be Retained by
Showboat". The parcel of land over which such restriction shall
apply is more particularly described as follows:
Beginning at a point in the easterly line of xxx 000 xx
xxxxx 00, xxxx xxxxx being South 62 degrees 32'00" West, 266.00'
from the westerly line of New Jersey Avenue (50' wide), and South
27 degrees 28'00" East, 80.00' from the southerly line of Pacific
Avenue (60' wide) and extending from said beginning point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 15.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue 280.60' to a point; thence
3. South 62 degrees 32'00" West, parallel with Pacific
Avenue, 15.00' to a point; thence
4. North 27 degrees 28'00" West in and along the easterly
line of said lot 140, parallel with New Jersey Avenue,
280.60'to a point and place of BEGINNING.
CONTAINING an area of 4209 square feet. Such restriction as
set forth in the Restated Agreement shall limit the use of the
above-described parcel so that it may be utilized only for
purposes of a pedestrian passageway, themeing and screening in
accordance with the Restated Agreement.
Exhibit B
page 1 of 2
METES AND BOUNDS DESCRIPTION
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at the southeasterly corner of Atlantic Avenue (100.00'
wide) and Maryland Avenue (60.00' wide) and extending from said
beginning point; thence
(1) North 62 degrees 32' 00" East, in and along the southerly
line of Atlantic Avenue, a distance of 350.00' to the
westerly line of Delaware Avenue (82.00' wide); thence
(2) South 27 degrees 28' 00" East, in and along the westerly
line of Delaware Avenue, a distance of 100.00' to a point
of curve; thence
(3) Curving to the left in the arc of a circle having a radius
of 429.00' and in and along the westerly line of
Delaware Avenue, the arc length of 104.82' to a point
of tangent; thence
(4) South 41 degrees 28' 00" East, in and along the westerly
line of Delaware Avenue, a distance of 152.53' to a point of
curve; thence
(5) Curving to the right in the arc of a circle having a radius
of 315.00' and in and along the westerly line of
Delaware Avenue, the arc length of 76.97' to a point
of tangent; thence
(6) South 27 degrees 28' 00" East, in and along the westerly
line of Delaware Avenue, a distance of 122.01' to the
northerly line of Pacific Avenue; thence
(7) South 62 degrees 32' 00" West, in and along the northerly
line of Pacific Avenue, a distance of 409.00' to the
easterly line of Maryland Avenue; thence
Exhibit C
page 1 of 3
(8) North 27 degrees 28' 00" West, in and along the easterly
line of Maryland Avenue, a distance of 550.00' to the
point and place of BEGINNING.
BEING KNOWN AS Block 15 as shown on the current official
taxing plan of the City of Atlantic City, with a proposed
vacation of United States Avenue and realignment of Delaware
Avenue.
CONTAINING an area of 209,013.13 square feet, or 4.80 Acres.
Exhibit C
page 2 of 3
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax map, and
being A PORTION OF TRACT 3 (LOT 144.05) TO BE CONVEYED TO
ATLANTIC CITY SHOWBOAT, INC. as shown on plan prepared by Xxxxxx
X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey License
No. 28314, plan dated September 23, 1995, bounded and described
as follows:
Beginning at a point in the southerly line of Pacific Avenue
(60.00' wide), south 62 degrees 32'00" West, 251.00' from the
westerly line of New Jersey Avenue (50.00' wide), and extending
from said beginning point; thence
1. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 80.00' to a point; thence
2. South 62 degrees 32'00" West, parallel with Pacific
Avenue, 15.00' to the easterly line of lot 140 in block 13;
thence
3. North 27 degrees 28'00" West, in and along same,
parallel with New Jersey Avenue, 80.00' to the southerly line
of Pacific Avenue; thence
4. North 62 degrees 32'00" East, in and along same, 15.00'
to the point and place of BEGINNING.
CONTAINING an area of 1200 square feet.
Exhibit C
page 3 of 3
EASEMENT
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 on the Atlantic City Tax Map, being A
PROPOSED FIRE ACCESS WAY, SERVICE ROAD AND UTILITY EASEMENT, as
shown on plan prepared by Xxxxxx X. Xxxxxx, Xx., Professional
Land Survey, New Jersey License No. 28314, plan last dated
November 7, 1995, entitled PLAN TO ACCOMPANY RE-STATED TRI-PARTY
AGREEMENT DATED 12/1/95, bounded and described as follows:
Beginning at a point in the Southerly line of Pacific Avenue (60'
wide), said point being South 62 degrees 32'00" West, 251.00'
from the Westerly line of New Jersey Avenue (50'), and extending
from said beginning point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 360.60' to a point; thence
3. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 24.00' to a point; thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 360.60' to the point and place of BEGINNING.
CONTAINING an area of 8,654.45 square feet and being the
same easement conveyed by Deed dated December 29, 1995, from the
Housing Authority and Redevelopment Agency to the City of
Atlantic City to Atlantic City Showboat, Inc.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit D
page 1 of 2
Metes and Bounds Description for property situate in the city of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being a portion of a proposed Fire Access Way, Service Road and
Utility Easement (PROPOSED NEW LOT C) to be owned by the Atlantic
City Housing Authority as shown on plan prepared by Xxxxxx X.
Xxxxxx, Xx., Professional Land Surveyor, new Jersey License No.
28314, plan dated September 25, 1995, bounded and described as
follows:
Beginning at a point in the Northerly line of lot 144.02 in block
13 as shown on the Atlantic City Tax Map, said point being South
62 degrees 32'00" West, 129.00' from the Westerly line of
New Jersey Avenue (50' wide), and South 27 degrees 28'00" East,
942.00' from the Southerly line of Pacific Avenue (60' wide),
and extending from said beginning point; thence
1. South 62 degrees 32'00" West, in and along the
northerly line of lot 144.02, parallel with Pacific Avenue,
24.00' to a point; thence
2. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 419.73' to a point; thence
3. North 59 degrees 59'37" West, 20.77' to a point; thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 41.38' to a point; thence
5. South 59 degrees 59'37" East, 65.41' to a point; thence
6. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 423.48' to the point and place of BEGINNING.
CONTAINING an area of 11,077.22 square feet.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit D
page 2 of 2
Prepared by:
Xxxxxx X. Xxxxx, Esq.
Levine, Staller, Sklar, Chan,
Xxxxxxx & Xxxxxxxx, P.A. /s/ Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx, Esquire
Xxxxxxxx Xxxx, XX 00000
FOURTH AMENDMENT TO LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT DATED AS OF MAY 18, 1993
RELEASE OF PART OF MORTGAGED PROPERTY
AND
SUBORDINATION AGREEMENT
THIS AGREEMENT is made as of the 14th day of December, 1995
by and between IBJ Xxxxxxxx Bank & Trust Company (as Trustee),
whose address is Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "Mortgagee") and Atlantic City
Showboat, Inc. whose address is 000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Mortgagor").
W I T N E S S E T H:
BACKGROUND
A. Mortgagor executed and delivered to Mortgagee (i) a
Leasehold Mortgage, Assignment of Rents and Security Agreement
dated as of May 18, 1993, recorded May 19, 1993 in the Office of
the Clerk of Atlantic County (the "Clerk's Office") in Mortgage
Book 5028, page 1, as amended by First Amendment to the Leasehold
Mortgage, Assignment of Rents and Security Agreement dated July
9, 1993, recorded July 28, 1993 in the Clerk's Office in Mortgage
Book 5095, page 209 and Second Amendment to the Leasehold
Mortgage, Assignment of Rents and Security Agreement dated July
6, 1995, recorded September 14, 1995 in the Clerk's Office in
Mortgage Book 5702, page 223 and (ii) an Assignment of Leases and
Rents dated May 18, 1993, recorded May 19, 1993 in the Clerk's
office in Mortgage Book 5028, page 66 (together, the
"Trust Mortgage"). Mortgagee also holds an obligation for the
payment of an indebtedness that is secured by the Trust Mortgage.
B. Mortgagor executed and delivered to Showboat, Inc., a
Nevada corporation (i) a Leasehold Mortgage, Assignment of Rents
and Security Agreement dated May 18, 1993, recorded May 19, 1993
in the Clerk's Office in Mortgage Book 5028, page 79, amended by
First Amendment to the Leasehold Mortgage, Assignment of Rents
and Security Agreement dated July 9, 1993, recorded July 28, 1993
in Mortgage Book 5095, page 26 and amended by Second Amendment to
the Leasehold Mortgage, Assignment of Rents and Security
Agreement dated July 6, 1995, recorded September 14, 1995 in the
Clerk's Office in Mortgage Book 5702, page 236 and (ii) an
Assignment of Rents and Leases dated May 18, 1993, recorded in
the Clerk's Office in Mortgage Book 5028, page 144 (together, the
"Assigned Mortgage"). The Assigned Mortgage was assigned by
Showboat, Inc. to Mortgagee by assignment dated May 18, 1993,
recorded May 29, 1993 in the Clerk's Office in Assignment Book
624, page 195. Mortgagee also holds an obligation for the
payment of an indebtedness that is secured by the Assigned
Mortgage.
C. Pursuant to a Tri-Party Agreement among Mortgagor, the
Housing Authority and Urban Redevelopment Agency of the City of
Atlantic City (the "Housing Authority") and Forest City Xxxxxx
dated December 14, 1995 (the "Tri-Party Agreement"), Mortgagor
agreed to convey to the Housing Authority (i) all Mortgagor's
right, title and interest in certain land and premises more
particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Release Parcels") and (ii) an easement over a
portion of lands and premises owned by Mortgagor more
particularly described on Exhibit "B" attached hereto and made a
part hereof (the "Easement Parcel") and the Housing Authority has
agreed to convey to Mortgagor the land and premises
2
described on Exhibit "C" attached hereto and made a part hereof
and an easement over and across the land described on Exhibit "D"
attached hereto and made a part hereof.
D. On December 6, 1995, the Planning Board of Atlantic
City approved the re-subdivision of Lots 144.03, 144.04, 144.05
and 144.06 in Block 13 on the Tax Map of the City of Atlantic
City as reflected on a subdivision plan prepared by Xxxxxx X.
Xxxxxx Co. & Associates, Inc., last revised November 7, 1995 (the
"Subdivision Plat"). The Subdivision Plat has been or is about
to filed, in the Clerk's office.
E. Mortgagor has requested Mortgagee to release the
Release Parcels encumbered by the Trust Mortgage and the Assigned
Mortgage and to subordinate the lien of the Trust Mortgage and
the Assigned Mortgage to the Easement Parcel.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Recitals. The recitals set forth above are hereby
incorporated in their entirety as if fully set forth at length.
2. Release of Part of Mortgaged Premises; Subordination.
2.1 Mortgagee hereby releases the Release Parcels
from the lien of the Trust Mortgage and the Assigned Mortgage.
The Release Parcels include (a) the land, (b) all buildings and
other improvements that are located on the land, (c) all fixtures
that are attached to the land or buildings, if any, and (d) all
other present rights of Mortgagee relating to the Release
Parcels.
2.2 The rest of the property (not released)
described in the Trust Mortgage and the Assigned Mortgage remains
subject to the lien of such mortgages.
3
2.3 Subordination to Easement. Mortgagee hereby
subordinates the lien of the Trust Mortgage and the Assigned
Mortgage to the Easement Parcel and to the terms and conditions
governing the Easement and to the uses and purposes described
herein.
3. Successors and Assigns. This Agreement inures to the
benefit of Mortgagor and is binding upon Mortgagee and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed the day and year first above written.
ATTEST: IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx XxXxxxxxx
Xxxxx Xxxxxxx, Asst. Secretary Xxxxxxx XxXxxxxxx,
Asst. Vice-President
STATE OF NEW YORK :
: ss
COUNTY OF RICHMOND :
BE IT REMEMBERED that on this 14th day of December, 1995,
before me, the subscriber, a Notary Public of New York,
personally appeared Xxxxxxx XxXxxxxxx, who, I am satisfied is the
person who signed the within instrument as Asst. Vice-President
of IBJ Xxxxxxxx Bank & Trust Company, as trustee, the corporation
named therein, and he thereupon acknowledged that the said
instrument made by the corporation and sealed with its corporate
seal, was signed, sealed with the corporate seal and delivered by
him as such officer, and is the voluntary act and deed of the
corporation, as trustee.
/s/ Xxxxx Xxxxxxx Jr.
4
TRACT B (Identified in the Restated Agreement as "The 80'
Easement")
BEGINNING at a point in the westerly line of New Jersey Avenue
(50' wide), South 27 degrees, 28'00" seconds east a distance of
862.00' from the southerly line of Pacific Avenue (60' wide), and
extending from said beginning point; thence
1. South 27 degrees, 28'00" east in and along the westerly
line of New Jersey Avenue a distance of 80.00' to a
point; thence
2. South 62 degrees, 32'00" west a distance of 140.00' to
a point; thence
3. North 27 degrees, 28'00" west a distance of 80.00' to a
point; thence
4. North 62 degrees, 32'00" east a distance of 140.00' to
the point and place of BEGINNING
CONTAINING an area of 11,200 square feet and being Block 13,
Lot 144.06 on the Tax Map of the City of Atlantic City as it
existed on November 1, 1995, and also being the lands and
premises over which a certain easement was granted to Grantor by
Grantee by deed dated July 7, 1993, and recorded in the Atlantic
County Clerk's Office in deed book 5524, page 201 et seq.
Exhibit A
page 1 of 3
5
TRACT A (Identified in the Restated Agreement as "Portion of
Tract 1 to be conveyed to ACHA-7,333.57SF")
Beginning at a point being South 62 degrees 32'00" West, 140.00'
from the westerly line of New Jersey Avenue (50.00' wide), and
South 27 degrees 28'00" East, 445.00' from the southerly line of
Pacific Avenue (60.00' wide), and extending from said beginning
point; thence
1. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 497.00' to the northerly line of lot 144.02 in
block 13; thence
2. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 13.00'; thence
3. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 419.73' to a point; thence
4. North 59 degrees 59'37" West, 20.77' to a point; thence
5. North 27 degrees 28'00" West, parallel with New Jersey
Avenue 41.38' to a point; thence
6. North 59 degrees 59'37" West, 20.46' to a point; thence
7. North 27 degrees 28'00" West, 1.13' to a point; thence
8. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 35.17' to the point and place of BEGINNING.
CONTAINING an area of 7,333.57 square feet and being a
portion Block 13, Lot 144.03, Tax Map of the City of Atlantic
City as it existed on November 1, 1995, and also being a portion
of the lands and premises granted to Mortgagor by the Housing
Authority by deed dated July 7, 1993, and recorded in the
Atlantic County Clerk's Office in deed book 5524, page 201 et
seq.
Exhibit A
page 2 of 3
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Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic city Tax Map, and
being a PORTION OF TRACT 2 (LOT 144.04) TO BE CONVEYED TO THE
ATLANTIC CITY HOUSING AUTHORITY as shown on plan prepared by
Xxxxxx X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey
License No. 28314, plan dated September 25, 1995, bounded and
described as follows:
Beginning at a point being South 62 32'00" West, 251.00' from the
westerly line of New Jersey Avenue (50' wide), and South 27
28'00" East, 80.00' from the southerly line of Pacific Avenue
(60' wide), and extending from said beginning point; thence
1. North 62 32'00" East, parallel with Pacific Avenue,
151.00' to a point; thence
2. South 27 28'00" East, parallel with new Jersey Avenue,
583.00' to a point; thence
3. South 62 32'00" West, parallel with Pacific Avenue,
40.00' to a point; thence
4. North 27 28'00" West, parallel with New Jersey Avenue,
218.00' to a point; thence
5. South 62 32'00" West, parallel with Pacific Avenue,
35.17' to a point; thence
6. North 27 28'00" West, parallel with New Jersey Avenue
84.40' to a point; thence
7. South 62 32'00" West, parallel with Pacific Avenue,
75.83' to a point; thence
8. North 27 28'00" West, parallel with New Jersey Avenue
280.60' to the point and place of BEGINNING.
CONTAINING an area of 57,435.09 square feet.
Exhibit A
page 3 of 3
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EASEMENT PARCEL
TRACT D (Identified in the Restated Agreement as "3,243.52SF P/O
Service Road to be Retained by Showboat")
Beginning at a point being South 62 degrees 32'00" West, 251.00'
from the westerly line of New Jersey Avenue (50.00' wide) and
South 27 degrees 28'00" East, 360.60' from the southerly line of
Pacific Avenue (60.00 wide), and extending from said beginning
point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 4.25' to a point; thence
3. South 59 degrees 59'37" East, 116.85 ' to a point;
thence
4. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 41.38' to a point; thence
5. North 59 degrees 59'37" West, 161.49' to a point;
thence
6. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 8.00' to the point and place of BEGINNING
CONTAINING an area of 3243.52 square feet and being a
portion of Block 13 on the Tax Map of the City of Atlantic City
and also being a portion of the lands and premises granted to
Grantor by Grantee by deed dated July 7, 1993, and recorded in
the Atlantic County Clerk's Office in deed book 5524, pages 201
et seq. and 216 et seq. Said easement shall extend from the
subsurface to a height of 28.25 mean sea level and shall be for
the purpose of constructing and utilizing in accordance with the
Restated Agreement that certain improvement identified in the
Restated Agreement as the Combined Service Drive and also for the
purpose of constructing, relocating, maintaining, replacing and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit B
8
METES AND BOUNDS DESCRIPTION
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at the southeasterly corner of Atlantic Avenue (100.00'
wide) and Maryland Avenue (60.00' wide) and extending from said
beginning point; thence
(1) North 62 degrees 32'00" East, in and along the southerly
line of Atlantic Avenue, a distance of 350.00' to the
westerly line of Delaware Avenue (82.00' wide); thence
(2) South 27 degrees 28'00" East, in and along the westerly
line of Delaware Avenue, a distance of 100.00' to a point
of curve; thence
(3) Curving to the left in the arc of a circle having a radius
of 429.00' and in and along the westerly line of Delaware
Avenue, the arc length of 104.82' to a point of tangent;
thence
(4) South 41 degrees 28'00" East, in and along the westerly
line of Delaware Avenue, a distance of 152.53' to a point
of curve; thence
(5) Curving to the right in the arc of a circle having a radius
of 315.00' and in and along the westerly line of Delaware
Avenue, the arc length of 76.97' to a point of tangent;
thence
(6) South 27 degrees 28'00" East, in and along the westerly
line of Delaware Avenue, a distance of 122.01' to the
northerly line of Pacific Avenue; thence
(7) South 62 degrees 32'00" West, in and along the northerly
line of Pacific Avenue, a distance of 409.00' to the
easterly line of Maryland Avenue; thence
Exhibit C
page 1 of 3
9
(8) North 27 degrees 28'00" West, in and along the easterly
line of Maryland Avenue, a distance of 550.00' to the point
and place of BEGINNING.
BEING KNOWN AS Block 15 as shown on the current official
taxing plan of the City of Atlantic City, with a proposed
vacation of United States Avenue and realignment of
Delaware Avenue.
CONTAINING an area of 209,013.13 square feet, or 4.80
Acres.
Exhibit C
page 2 of 3
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Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax map, and
being A PORTION OF TRACT 3 (LOT 144.05) TO BE CONVEYED TO
ATLANTIC CITY SHOWBOAT, INC. as shown on plan prepared by Xxxxxx
X. Xxxxxx, Xx., Professional Land Surveyor, New Jersey License
No. 28314, plan dated September 23, 1995, bounded and described
as follows:
Beginning at a point in the southerly line of Pacific Avenue
(60.00' wide), south 62 32'00" West, 251.00' from the westerly
line of New Jersey Avenue (50.00' wide), and extending from said
beginning point; thence
1. South 27 28'00" East, parallel with New Jersey Avenue,
80.00' to a point; thence
2. South 62 32'00" West, parallel with Pacific Avenue,
15.00' to the easterly line of lot 140 in block 13; thence
3. North 27 28'00" West, in and along same, parallel with
New Jersey Avenue, 80.00' to the southerly line of Pacific
Avenue; thence
4. North 62 32'00" East, in and along same, 15.00' to the
point and place of BEGINNING.
CONTAINING an area of 1200 square feet.
Exhibit C
page 3 of 3
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EASEMENT
Metes and Bounds Description for property situate in the City of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 on the Atlantic City Tax Map, being a portion
of A PROPOSED FIRE ACCESS WAY, SERVICE ROAD AND UTILITY EASEMENT,
as shown on plan prepared by Xxxxxx X. Xxxxxx, Xx., Professional
Land Survey, New Jersey License No. 28314, plan last dated
November 7, 1995, entitled PLAN TO ACCOMPANY RE-STATED TRI-PARTY
AGREEMENT DATED 12/1/95, bounded and described as follows:
Beginning at a point in the Southerly line of Pacific Avenue (60'
wide), said point being South 62 degrees 32'00" West, 251.00'
from the Westerly line of New Jersey Avenue (50'), and extending
from said beginning point; thence
1. North 62 degrees 32'00" East, parallel with Pacific
Avenue, 24.00' to a point; thence
2. South 27 degrees 28'00" East, parallel with New Jersey
Avenue, 360.60' to a point; thence
3. South 62 degrees 32'00" West, in and along same,
parallel with Pacific Avenue, 24.00' to a point;
thence
4. North 27 degrees 28'00" West, parallel with New Jersey
Avenue, 360.60' to the point and place of BEGINNING.
CONTAINING an area of 8,654.45 square feet and being the
same easement conveyed by Deed dated December 29, 1995, from the
Housing Authority and Redevelopment Agency of the City of
Atlantic City to Atlantic City Showboat, Inc.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit D
page 1 of 2
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Metes and Bounds Description for property situate in the city of
Atlantic City, County of Atlantic and State of New Jersey,
located in Block 13 as shown on the Atlantic City Tax Map, and
being a portion of a proposed Fire Access Way, Service Road and
Utility Easement (PROPOSED NEW LOT C) to be owned by the Atlantic
City Housing Authority as shown on plan prepared by Xxxxxx X.
Xxxxxx, Xx., Professional Land Surveyor, new Jersey License No.
28314, plan dated September 25, 1995, bounded and described as
follows:
Beginning at a point in the Northerly line of lot 144.02 in Block
13 as shown on the Atlantic City Tax Map, said point being South
62 32'00" West, 129.00' from the Westerly line of New Jersey
Avenue (50' wide), and South 27 28'00" East, 942.00' from the
Southerly line of Pacific Avenue (60' wide), and extending from
said beginning point; thence
1. South 62 32'00" West, in and along the Northerly line
of Lot 144.02, parallel with Pacific Avenue, 24.00' to a point;
thence
2. North 27 28'00" West, parallel with New Jersey Avenue,
419.73' to a point; thence
3. North 59 59'37" West, 20.77' to a point; thence
4. North 27 28'00" West, parallel with New Jersey Avenue,
41.38' to a point; thence
5. South 59 59'37" East, 65.41' to a point; thence
6. South 27 28'00" East, parallel with New Jersey Avenue,
423.48' to the point and place of BEGINNING.
CONTAINING an area of 11,077.22 square feet.
SAID easement shall extend from the subsurface to a height of
28.25 feet mean sea level and shall be for the purpose of
constructing and utilizing in accordance with the Restated
Agreement that certain improvement identified in the Restated
Agreement as the combined Service Road and also for the purpose
of constructing, relocating, maintaining, replacing, and
repairing subterranean utilities, including without limitation
water and sewer lines and drains.
Exhibit D
page 2 of 2
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