GROUND LEASE
BETWEEN
XXXXXX'X MARYLAND HEIGHTS LLC
and
RIVERSIDE JOINT VENTURE
TABLE OF CONTENTS
1. LEASE OF PREMISES................................................. 1
2. GENERAL DEFINITIONS............................................... 2
2.1 Accounting Principles.................................... 2
2.2 Additional Rent.......................................... 2
2.3 Business Day............................................. 2
2.4 Casualty................................................. 2
2.5 City..................................................... 2
2.6 Commencement Date........................................ 2
2.7 Commencement Date (Percentage Rent)...................... 2
2.8 Condemnation............................................. 2
2.9 Consumer Price Index..................................... 2
2.10 County................................................... 2
2.11 Default.................................................. 2
2.12 Depository............................................... 3
2.13 Environmental Law........................................ 3
2.14 Estoppel Certificate..................................... 3
2.15 Fee Estate............................................... 3
2.16 Fee Mortgage............................................. 3
2.17 Fee Mortgagee............................................ 3
2.18 Fiscal Month............................................. 3
2.19 Fiscal Year.............................................. 3
2.20 Fixed Rent............................................... 3
2.21 Gambling or Gambling Activity............................ 3
2.22 Gaming Equipment......................................... 3
2.23 Government............................................... 3
2.24 Xxxxxx'x Lease........................................... 3
2.25 Xxxxxx'x Management Agreement............................ 4
2.26 Hazardous Materials...................................... 4
2.27 Impositions.............................................. 4
2.28 Indemnify................................................ 4
2.29 Indemnitee............................................... 5
2.30 Indemnitor............................................... 5
2.31 Institutional Lender..................................... 5
2.32 Insubstantial Condemnation............................... 5
2.33 Joint Venture Agreement.................................. 5
2.34 Landlord................................................. 5
2.35 Law(s)................................................... 5
2.36 Leasehold Estate......................................... 5
2.37 Mandated Alterations..................................... 5
2.38 Missouri Gambling Law.................................... 6
2.39 Missouri Gaming Commission............................... 6
2.40 Monetary Default......................................... 6
2.41 Monthly Statement........................................ 6
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2.42 Mortgage................................................ 6
2.43 Mortgagee............................................... 6
2.44 Net Gaming Revenue...................................... 6
2.45 Non-Monetary Default.................................... 6
2.46 Notice.................................................. 6
2.47 Notice of Default....................................... 6
2.48 Operating Covenant Default.............................. 6
2.49 Percentage Rent......................................... 6
2.50 Permitted Exceptions.................................... 7
2.51 Person.................................................. 7
2.52 Personal Default........................................ 7
2.53 Plans and Specifications................................ 7
2.54 Players' Lease.......................................... 7
2.55 Players' Lease Commencement Date........................ 7
2.56 Players' Premises....................................... 7
2.57 Prime Mortgage.......................................... 8
2.58 Prime Mortgagee......................................... 8
2.59 Prime Mortgagee's Agent................................. 8
2.60 Prime Rate.............................................. 8
2.61 Prohibited Liens........................................ 8
2.62 Prohibited Person (Landlord)............................ 8
2.63 Prohibited Person (Tenant).............................. 9
2.64 Qualified Arbitrator.................................... 9
2.65 Reciprocal Easement Agreement........................... 9
2.66 Rent.................................................... 9
2.67 Shoreside Complex....................................... 9
2.68 State................................................... 9
2.69 State Revenue Reports................................... 9
2.70 State Revenue Audits.................................... 9
2.71 Sublease................................................ 10
2.72 Substantial Condemnation................................ 10
2.73 Subtenant............................................... 10
2.74 Temporary Condemnation.................................. 10
2.75 Tenant's Property....................................... 10
2.76 Termination Date........................................ 10
2.77 Transfer................................................ 10
2.78 Unavoidable Delay....................................... 10
2.79 Waiver of Subrogation................................... 11
3. TERM............................................................. 11
3.1 Term.................................................... 11
3.2 Confirmation of Dates................................... 11
4. DEVELOPMENT AND CONSTRUCTION OF THE SHORESIDE COMPLEX............ 11
4.1 Tenant's Obligation to Construct Shoreside Complex...... 11
4.2 Construction Bonds and Permit Fees...................... 12
4.3 Cooperation by Landlord................................. 12
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4.4 Title to Shoreside Complex and Tenant's Property........ 12
5. RENT............................................................. 12
5.1 Fixed Rent.............................................. 12
5.2 No Improvements Rent.................................... 13
5.3 Means of Payment........................................ 13
5.4 Percentage Rent......................................... 13
5.4.1 Reporting and Payment........................ 13
5.4.2 Accounting Records........................... 14
5.4.3 Landlord's Right to Audit.................... 14
5.4.4 Confidentiality.............................. 15
5.4.5 Substitute Percentage Rent................... 15
5.4.6 Assignment of Percentage Rent to Landlord.... 15
5.5 Additional Rent........................................ 16
5.6 No Conditional Payment................................. 16
5.7 Interest on Overdue Rent............................... 16
6. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS...................... 16
6.1 Landlord's Net Return.................................. 16
6.2 Impositions............................................ 17
6.3 Assessments in Installments............................ 17
6.4 Combined Tax Lots...................................... 17
6.5 Direct Payment by Landlord............................. 18
6.6 Utilities.............................................. 18
7. USE............................................................. 18
7.1 Permitted Uses......................................... 18
7.2 Tenant's Failure to Operate the Business............... 18
8. LAWS............................................................ 18
8.1 Compliance with Law.................................... 18
8.2 Licenses and Permits................................... 18
8.3 Environmental Matters.................................. 19
8.3.1 Compliance.................................. 19
8.3.2 No Violations............................... 19
8.3.3 Cost of Compliance.......................... 19
8.3.4 Remediation................................. 19
8.4 Disclosure............................................. 19
8.4.1 Reports..................................... 20
8.4.2 Notices..................................... 20
8.4.3 Environmental Audits........................ 20
8.4.4 Orders...................................... 20
8.4.5 Pleadings................................... 20
8.5 Indemnification........................................ 20
8.6 Tenant's Further Responsibility at Termination or
Expiration of Lease......................... 21
8.6.1 Surrender................................... 21
8.6.2 Storage Tanks............................... 21
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8.7 Landlord's Environmental Remedies....................... 21
8.7.1 Inspection Rights............................ 21
8.7.2 Self Help.................................... 21
8.7.3 Hazardous Material Release................... 21
8.7.4 Clean Up..................................... 21
8.7.5 Landlord Participation....................... 22
8.7.6 Fees and Expenses............................ 22
8.8 Landlord's Indemnity.................................... 22
9. MAINTENANCE AND ALTERATIONS...................................... 22
9.1 Obligation to Maintain.................................. 22
9.2 Tenant's Right to Perform Alterations................... 22
10. PROHIBITED LIENS................................................. 23
10.1 Tenant's Covenant....................................... 23
10.2 Protection of Landlord.................................. 23
11. INDEMNIFICATION; LIABILITY OF LANDLORD........................... 23
11.1 Mutual Indemnity Obligations............................ 23
11.2 Liability of Landlord................................... 24
11.3 Indemnification Procedures.............................. 24
11.3.1 Prompt Notice................................ 24
11.3.2 Selection of Counsel......................... 24
11.3.3 Settlement................................... 24
11.3.4 Insurance Proceeds........................... 25
12. RIGHT OF CONTEST................................................. 25
13. INSURANCE........................................................ 25
13.1 Tenant to Insure........................................ 25
14. DAMAGE OR DESTRUCTION............................................ 26
14.1 Notice; No Rent Abatement; Restoration Obligations...... 26
14.2 Lease Termination for Casualty.......................... 26
15. CONDEMNATION..................................................... 26
15.1 Substantial Condemnation................................ 26
15.2 Insubstantial Condemnation.............................. 26
15.3 Other Governmental Action............................... 27
15.4 Settlement or Compromise................................ 27
15.5 Prompt Notice........................................... 27
16. TRANSFERS........................................................ 27
16.1 By Tenant............................................... 27
16.2 By Landlord............................................. 27
17. MORTGAGES........................................................ 27
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17.1 Landlord's Rights....................................... 27
17.2 Tenant's Rights......................................... 28
17.3 Effect of a Prime Mortgage.............................. 28
17.4 Sale and Leaseback...................................... 28
17.5 Modifications Required by Prime Mortgagee............... 28
17.6 Further Assurances...................................... 29
17.7 Protection of Fee Mortgagees............................ 29
17.8 Foreclosure............................................. 29
18. NOTICE TO LANDLORD OF PRIME MORTGAGES............................ 29
18.1 Initial Notice.......................................... 29
18.2 Change of Address....................................... 29
18.3 Termination of Prime Mortgagee's Rights................. 29
18.4 Transfer of Fee Estate.................................. 29
18.5 Landlord's Acknowledgment of Prime Mortgagee............ 30
19. PROTECTION OF PRIME MORTGAGEES................................... 30
19.1 Cancellation, Surrender, Amendment, Etc................. 30
19.2 Copies of Notices....................................... 30
19.3 Tenant's Cure Period Expiration Notice.................. 30
19.4 Right to Perform Covenants and Agreements............... 30
19.5 Transfer of Tenant's Rights............................. 31
19.6 Notice of Default and Mortgagee's Cure Rights........... 31
19.6.1 Monetary Defaults and Non-Monetary Defaults
Curable Without obtaining Possession........ 31
19.6.2 Other Non-Monetary Defaults Curable Without
Obtaining Possession........................ 31
19.6.3 Defaults Curable Only by Obtaining
Possession and Personal Defaults............ 32
19.6.3.1 During Cure Period.......................... 32
19.6.3.2 Further Cure Obligations.................... 32
19.6.3.3 Law Limitation.............................. 32
19.6.3.4 Operating Covenant Default.................. 32
19.7 Effect of Cure......................................... 33
19.8 Quiet Enjoyment........................................ 33
19.9 Subordinate Liens Affecting Leasehold Estate........... 33
19.10 Prime Mortgagee's Right to Enter Premises.............. 33
19.11 Rights of Prime Mortgagee Upon Acquiring Control....... 33
20. PRIME MORTGAGEE'S RIGHT TO A NEW LEASE.......................... 34
20.1 New Lease.............................................. 34
20.2 Form and Priority...................................... 34
20.3 Pendency of Dispute.................................... 34
20.4 Assignment of Certain Items............................ 34
20.5 Preservation of Subleases.............................. 34
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21. INTERACTION OF MORTGAGES WITH OTHER ESTATES AND
PARTIES.......................................................... 35
21.1 Prime Mortgages and Fee Mortgages....................... 35
21.2 Prime Mortgagee's Agent................................. 35
21.3 Interaction Between Lease and Prime Mortgage............ 35
21.4 Conflicts Between Mortgagees............................ 35
21.5 No Merger............................................... 36
22. BANKRUPTCY....................................................... 36
22.1 Affecting Tenant........................................ 36
22.2 Affecting Landlord...................................... 37
22.2.1 Tenant's Election..................... 37
22.2.2 Continuation of Lease................. 37
22.2.3 Assumption of Lease................... 37
22.2.4 Continuation of Prime Mortgages....... 37
23. QUIET ENJOYMENT.................................................. 37
24. FORCE MAJEURE.................................................... 37
25. ACCESS........................................................... 38
26. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS................... 38
26.1 Landlord's Option....................................... 38
26.2 Reimbursement by Tenant................................. 38
27. DEFAULT BY TENANT; REMEDIES...................................... 38
27.1 Definition of Event of Defaults......................... 38
27.1.1 Players' Lease Default....................... 38
27.1.2 Monetary Default............................. 39
27.1.3 Operating Covenant Default................... 39
27.1.4 Non-Monetary Default......................... 39
27.1.5 Reciprocal Easement Default.................. 40
27.2 Remedies................................................ 40
27.2.1 Assignment of Remedies....................... 40
27.3 Re-entry................................................ 40
27.4 Damages................................................. 40
27.5 Injunctive Relief....................................... 41
27.6 Pending Dispute Regarding Event of Default.............. 41
27.7 Arbitration............................................. 42
27.7.1 Voluntary Appointment........................ 42
27.7.2 Appointment by Arbitrators................... 42
27.7.3 Failure to Appoint........................... 42
27.7.4 Fees and Expenses............................ 42
27.7.5 Proceedings.................................. 42
27.7.6 Arbitration Decisions........................ 42
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28. TERMINATION...................................................... 43
28.1 Rights on Termination................................... 43
28.2 Possession.............................................. 43
28.3 Documentation........................................... 43
28.4 Miscellaneous Assignments............................... 43
28.5 Termination of Memorandum of Lease...................... 43
28.6 Restoration............................................. 43
28.7 Personal Property and Equipment......................... 43
29. NO BROKER........................................................ 44
30. WAIVERS.......................................................... 44
30.1 No Waiver by Silence.................................... 44
30.2 Waiver of Trial by Jury................................. 44
31. MEMORANDUM OF LEASE.............................................. 44
32. ESTOPPEL CERTIFICATES............................................ 45
32.1 Rights of Each Party.................................... 45
33. MISCELLANEOUS.................................................... 45
33.1 Reasonableness.......................................... 45
33.2 Documents in Recordable Form............................ 45
33.3 Further Assurances...................................... 45
33.4 No Third Party Beneficiaries............................ 45
33.5 Interpretation.......................................... 45
33.6 Captions................................................ 46
33.7 Cumulative Remedies..................................... 46
33.8 Right of Injunction..................................... 46
33.9 Entire Agreement........................................ 46
33.10 Amendment............................................... 46
33.11 Partial Invalidity...................................... 46
33.12 Successors and Assigns.................................. 46
33.13 Governing Law........................................... 46
33.14 Obligation to Perform................................... 46
33.15 Counterparts............................................ 47
33.16 Time Periods............................................ 47
33.17 Rule Against Perpetuities............................... 47
33.18 No Agency or Partnership................................ 47
34. NOTICES.......................................................... 47
35. GAMING LICENSE................................................... 48
36. RECIPROCAL EASEMENT AGREEMENT.................................... 48
37. JOINT VENTURE AGREEMENT.......................................... 49
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38. SURVIVAL......................................................... 49
LIST OF EXHIBITS
EXHIBIT A-1 Land Description
EXHIBIT A-2 Easements and Rights Appurtenant to Premises
EXHIBIT B Form of Estoppel Certificate
EXHIBIT C Permitted Exceptions
EXHIBIT D Form of Reciprocal Easement Agreement
EXHIBIT E Standards of Operation
EXHIBIT F Tenant's Insurance Requirements
EXHIBIT G Transferee Criteria
EXHIBIT H Form of Memorandum of Lease
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GROUND LEASE
THIS GROUND LEASE (the "Lease") is made as of this 3rd day of November,
1995 (the "Commencement Date"), by and between XXXXXX'X MARYLAND HEIGHTS LLC, a
Delaware limited liability company ("Landlord"), and RIVERSIDE JOINT VENTURE, a
Missouri general partnership ("Tenant").
R E C I T A L S
X. Xxxxxx'x Maryland Heights Corporation, a Nevada corporation
("HMHC"), an affiliate of Landlord, and Players MH, L.P., a Missouri limited
partnership ("Players") are partners in Tenant which is developing the Shoreside
Complex for floating gambling facilities in Maryland Heights, Missouri.
B. Landlord is owner of fee simple absolute title to the land described
in Exhibit A-1, (which includes a portion of the land on which the Shoreside
Complex is to be developed by Tenant), together with: (a) all easements and
rights appurtenant thereto, including without limitation, those set forth in
Exhibit A-2 hereto; (b) all right, title and interest of Landlord, if any, in
and to the land lying in the bed of any street or highway in front of or
adjoining such land; and (c) riparian rights associated with such land; (all,
collectively, the "Premises"), subject to the Permitted Exceptions.
C. Landlord desires to lease the Premises to Tenant, and Tenant desires
to lease the Premises from Landlord.
D. Following the Commencement Date, Tenant intends to construct the
Shoreside Complex on the Premises and on land owned in fee by Tenant, and
located adjacent to the Premises (the "Venture Premises").
E. The parties desire to enter into this Lease to set forth their
rights and obligations relating to the Premises and the Shoreside Complex.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS OF
THE PARTIES CONTAINED IN THIS LEASE, AND IN CONSIDERATION OF THE RECITALS SET
FORTH ABOVE (WHICH ARE INCORPORATED BY REFERENCE IN THIS LEASE), AND IN EXCHANGE
FOR TEN DOLLARS ($10.00) AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND SUFFICIENCY OF ALL OF WHICH ARE CONCLUSIVELY ACKNOWLEDGED BY BOTH PARTIES,
LANDLORD AND TENANT AGREE AS FOLLOWS:
1. LEASE OF PREMISES.
Landlord hereby leases the Premises to Tenant and Tenant hereby takes,
leases and hires the Premises from Landlord, all subject only to the Permitted
Exceptions. The Premises
1
are leased to Tenant for the Term defined in this Lease, upon all the terms and
conditions of this Lease.
2. GENERAL DEFINITIONS.
The following general definitions shall apply throughout the Lease, in
addition to other definitions appearing at other locations in this Lease.
2.1 Accounting Principles. Accounting principles and practices set
forth in the Audit and Accounting Guide for Audits of Casinos with changes
through May, 1994, prepared by the American Institute of Certified Public
Accountants, as from time to time amended, and, to the extent not therein
addressed, United States generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession as in effect from time to time, consistently applied.
2.2 Additional Rent. Payments to be paid by Tenant to Landlord pursuant
to this Lease, other than Fixed Rent, Percentage Rent and Substitute Percentage
Rent.
2.3 Business Day. A day on which banks in the State are generally open
for the conduct, with bank personnel, of regular banking business.
2.4 Casualty. Damage or destruction affecting the Premises and/or the
Shoreside Complex.
2.5 City. The City of Maryland Heights, a municipal corporation, and
any successor Government entity.
2.6 Commencement Date. The date on which this Lease is executed.
2.7 Commencement Date (Percentage Rent). As said term is defined in
Section 2.8 of the Players' Lease.
2.8 Condemnation. A taking of the Premises or the Shoreside Complex, in
whole or in part, by condemnation or by exercise of any right of eminent domain,
or by any similar proceeding or act of any Government or any voluntary sale in
lieu of such proceeding.
2.9 Consumer Price Index. The Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, United States City Average, all items (1982-1984 = 100). If
such index is no longer published, then Landlord shall designate a successor or
replacement index of substantially equivalent reliability and objectivity. The
Consumer Price Index in effect for any given date shall be deemed to refer to
the Consumer Price Index last published before such date.
2
2.10 County. St. Louis County, Missouri, and any successor Government
entity.
2.11 Default. A Monetary Default, Non-Monetary Default or Operating
Covenant Default. Each and every covenant of Tenant under this Lease, if not
performed by Tenant, shall give rise to a Default as to which Tenant and (other
than for Personal Defaults) Prime Mortgagees shall have the cure rights provided
for in this Lease.
2.12 Depository. An Institutional Lender, designated by Tenant or by
its highest priority Prime Mortgagee to act as "Depository" where expressly
provided for in this Lease.
2.13 Environmental Law. Any applicable federal, state, or local law,
regulation, ordinance, order, judgment, or decree pertaining to Hazardous
Materials or to the protection of the environment, as such are now in effect or
may hereafter be enacted or revised.
2.14 Estoppel Certificate. A written statement containing all (or, at
the option of the Requesting Party, only some) of the statements set forth in
the form attached as Exhibit B and containing such additional information
relating to this Lease and the Premises as the Requesting Party shall reasonably
specify.
2.15 Fee Estate. Landlord's fee estate in the Premises or any part of
the Premises or any direct or indirect interest in such fee estate. The Fee
Estate is subject to this Lease.
2.16 Fee Mortgage. Any mortgage, deed of trust, deed to secure debt,
assignment, security interest, pledge, financing statement or any other
instrument(s) or agreement(s) intended to grant security encumbering the Fee
Estate for any obligation, as entered into, renewed, modified, amended, extended
or assigned from time to time during the Term.
2.17 Fee Mortgagee. Any holder of a Fee Mortgage.
2.18 Fiscal Month. Each calendar month.
2.19 Fiscal Year. Each calendar year.
2.20 Fixed Rent. Shall have the meaning set forth in Section hereof.
2.21 Gambling or Gambling Activity. Being engaged in the business of
operating "gambling games", as defined in the Missouri Gambling Law.
2.22 Gaming Equipment. Tenant's or Subtenant's equipment constituting
wagering devices used in connection with the operation of Players' Excursion
Gambling Boats (as defined in the Missouri Gambling Law) on the Premises
including baccarat, bingo, twenty-one, poker, craps and other table games, slot
machines, video games, roulette wheel, klondike table, punchboard, faro layout,
keno layout, numbers ticket, push card, jar ticket and pull tab, or other
wagering devices now or hereafter authorized by the Missouri Gaming Commission.
2.23 Government. Each governmental authority, department, agency,
bureau or other entity or instrumentality having jurisdiction over the Premises,
including the federal
3
government of the United States, the State, the County, the City and all other
governmental or quasi-governmental authorities and subdivisions thereof having
jurisdiction over the Premises or any portion thereof.
2.24 Xxxxxx'x Lease. That certain sublease of even date herewith of a
portion of the Shoreside Complex by and between Tenant and Landlord (as
Subtenant), as the same may be hereafter amended from time to time.
2.25 Xxxxxx'x Management Agreement. That certain Management Agreement
of even date herewith by and between Xxxxxx'x Maryland Heights Operating
Company, a Nevada corporation and Tenant.
2.26 Hazardous Materials. Any substance or matter including, without
limitation, petroleum products and waste oil, (i) whose concentration in air,
water, groundwater, or soil exceeds levels set forth in any Environmental Law,
or (ii) for which any federal, state, or local agency orders or otherwise
requires removal, treatment, monitoring, or remediation.
2.27 Impositions. Ad valorem taxes, special and general assessments,
water rents, rates and charges, commercial rent taxes, sewer rents and charges,
license and permit fees, charges for public utilities, levee district taxes and
assessments, and all other impositions and charges of every kind and nature
whether or not particularized by name, and whether general or special, ordinary
or extraordinary, foreseen or unforeseen which at any time during the Term may
be created, assessed, levied, confirmed, adjudged, imposed or charged upon or
with respect to the Premises, the Xxxxxxxxx Xxxxxxx, Xxx 0 xx Xxxxxxxxx Xxxxx 7
(to the extent of the proportionate benefit to the Premises) which shall be one
hundred percent (100%) so long as no development occurs on Xxx 0 xx Xxxxxxxxx
Xxxxx 0 and if development does occur on Xxx 0 xx Xxxxxxxxx Xxxxx 0, Xxxxxxxx
and Tenant shall mutually agree as to the amount of such proportionate benefit
and failing such agreement such proportionate benefit shall be determined by
arbitration pursuant to the provisions of Section 27.7 hereof, or any of
Tenant's Property by or for the benefit of any Government with respect
to any period during the Term together with any taxes and assessments that may
be levied, assessed or imposed by the State or by any political or taxing
subdivision of the State upon the gross income arising from any Rent or in lieu
of or as a substitute, in whole or in part, for taxes and assessments imposed
upon or related to the Premises and commonly known as real estate taxes, and
together with all assessments made pursuant to all recorded protective
covenants, indentures or reciprocal easement agreements to the extent the
Premises or the Shoreside Complex are proportionately benefitted by such
protective covenants, indentures or reciprocal easements. The term "Impositions"
shall, however, not include any of the following, all of which Landlord shall
pay before delinquent or payable only with a penalty: (a) any franchise, income,
excess profits, estate, inheritance, succession, transfer, gift, corporation,
business, capital levy, or profits tax, or license fee, of Landlord, (b) if the
Premises is part of a Combined Tax Lot, any taxes and other Impositions
reasonably allocable to any portion of such Combined Tax Lot other than the
Premises, or Shoreside Complex, in accordance with the applicable provisions of
this Lease, (c) the incremental portion of any of the items listed in this
paragraph that would not have been levied, imposed or assessed but for any sale
or other direct or indirect transfer of the Fee Estate or of any interest in
Landlord during the Term, and (d) interest, penalties and other charges with
respect to items "a" through "c".
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2.28 Indemnify. The duty of an Indemnitor to indemnify the Indemnitee
(and its partners and their Affiliates [the terms "Affiliate" or "Affiliates" as
used herein shall have the same meanings as said terms have in the Joint Venture
Agreement] and their respective officers, directors, agents and employees) and
defend and hold the Indemnitee (and its partners and Affiliates and their
respective officers, directors, agents and employees) harmless from and against
any and all loss, cost, claims, liability, penalties, judgments, damage or other
injury, detriment, or expense (including reasonable attorneys' fees, court
costs, interest and penalties) reasonably incurred or suffered by the Indemnitee
(and its partners and Affiliates and their respective officers, directors,
agents and employees) on account of the matter that is the subject of such
indemnification or in enforcing the Indemnitor's indemnity.
2.29 Indemnitee. A Person that is entitled to be Indemnified pursuant
to this Lease.
2.30 Indemnitor. A Person that is obligated to Indemnify another party
pursuant to this Lease.
2.31 Institutional Lender. A national bank, commercial state bank,
savings bank, trust company, insurance company, pension, welfare or retirement
fund or system, real estate investment trust, federal or state agency regularly
making or guaranteeing mortgage loans, any other entity actively engaged in
commercial real estate financing and having total assets of at least $50,000,000
(adjusted annually on each anniversary of the Commencement Date of this Lease to
reflect increases in the Consumer Price Index), or a corporation that is a
wholly-owned subsidiary of any of the foregoing entities, including any of the
foregoing when acting as trustee or agent for other lender(s), whether or not
such other lender(s) are themselves Institutional Lenders. The fact that a
particular entity (or any Affiliate of such entity) is an Affiliate or partner
of the then Tenant under this Lease shall preclude such entity from being an
Institutional Lender and/or a Prime Mortgagee.
2.32 Insubstantial Condemnation. A Condemnation other than a
Substantial Condemnation.
2.33 Joint Venture Agreement. That certain general partnership
agreement of Tenant dated November 2, 1995.
2.34 Landlord. The Landlord named in the opening paragraph of this
Lease and shall, throughout the Term, be limited to mean and refer to only the
owner of the Fee Estate.
2.35 Law(s). Laws, ordinances, requirements, orders, directives, rules
and regulations of any Government affecting the development, improvement,
alteration, use, maintenance, operation or occupancy of the Premises or the
Shoreside Complex, whether in force at the Commencement Date or passed, enacted
or imposed at some time thereafter, subject in all cases, however, to all
applicable waivers, variances and exemptions limiting the application of the
foregoing, and including without limitation, the restrictions or other
requirements of any applicable permit of any Government.
2.36 Leasehold Estate. Tenant's leasehold estate arising under this
Lease, upon and subject to all the terms and conditions of this Lease, and any
legal or beneficial interest in
5
such leasehold estate (other than stock of a company whose stock is listed and
traded on the New York or NASDAQ Exchange).
2.37 Mandated Alterations. Repairs, additions, replacements or
alterations mandated by Laws imposed, modified, interpreted or otherwise
rendered more burdensome after the Commencement Date, including "retro-fitting"
and structural alterations, whether or not such Laws could reasonably have been
foreseen at the Commencement Date.
2.38 Missouri Gambling Law. State statutory Law regulating the conduct
of gambling and related activities on the Premises, which law is presently
codified as Sections 313.800 through 313.850, Revised Statutes of Missouri
(1994), and as such law may be amended from time to time, and all rules and
regulations adopted pursuant to any such law.
2.39 Missouri Gaming Commission. The Missouri Gaming Commission, or any
successor commission or authority which has jurisdiction to license and regulate
gambling on the Premises pursuant to Missouri Gambling Law.
2.40 Monetary Default. A failure by Tenant to pay any Rent or other
amount owed by Tenant under this Lease, when and as required to be paid pursuant
to this Lease.
2.41 Monthly Statement. A financial statement of the occupant of
Players' Premises, delivered to Landlord on the twentieth calendar day of every
Fiscal Month, beginning on the Commencement Date (Percentage Rent), reporting
Net Gaming Revenue of the Premises for the immediately preceding Fiscal Month,
certified to be complete, true and accurate, and to have been prepared in
accordance with Accounting Standards by such Subtenant's authorized financial
officer, and which shall include and have attached thereto all State Revenue
Reports for such Fiscal Month.
2.42 Mortgage. A Fee Mortgage or a Prime Mortgage.
2.43 Mortgagee. The holder of a Mortgage.
2.44 Net Gaming Revenue. "Adjusted gross receipts" as said term is
defined under Missouri Gambling Law as now enacted or as hereafter amended.
2.45 Non-Monetary Default. A failure by Tenant to perform any
obligation of Tenant under this Lease, other than a Monetary Default or an
Operating Covenant Default.
2.46 Notice. A notice, demand, request, election, designation, or
consent, including any of the foregoing relating to an Event of Default or
alleged Event of Default, that is permitted, required or desired to be given by
either party in connection with this Lease.
2.47 Notice of Default. A Notice from Landlord to Tenant claiming or
giving Notice of an Event of Default or alleged Event of Default by Tenant.
2.48 Operating Covenant Default. As defined in Section 7.2 of this
Lease.
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2.49 Percentage Rent. An amount equal to the following percentages of
Net Gaming Revenue derived from Players' Premises for the twelve (12) month
period following the Commencement Date (Percentage Rent) and for each twelve
(12) month period thereafter during the Term (each of such twelve-month periods
being herein referred to as a "Percentage Rent Year"):
(i) Two percent (2%) of the first Fifty Million Dollars
($50,000,000) of Net Gaming Revenue; and
(ii) Three percent (3%) of Net Gaming Revenue exceeding Fifty
Million Dollars ($50,000,000) up to and including One Hundred Million
Dollars ($100,000,000), and
(iii) Four percent (4%) of Net Gaming Revenue in excess of One
Hundred Million Dollars ($100,000,000).
If the term "adjusted gross receipts," as defined under the Missouri Gambling
Law, is changed, the percentages applicable to such changed definition as
provided in this Section 2.49 hereof shall be adjusted by agreement of
the parties, to preserve the same payment of Percentage Rent that would have
been due had there been no such change. If the parties fail to agree upon such
percentage prior to the effective date of the change to such definition, then
such percentages shall be determined by arbitration in accordance with Section
27.7 hereof, which arbitration shall be held pursuant to the provisions of
Section 27.7 hereof in lieu of the arbitration provided for in the Players'
Lease so long as Landlord is Xxxxxx'x Maryland Heights LLC or an Affiliate
thereof.
2.50 Permitted Exceptions. (i) all matters described on Exhibit C
hereto; (ii) all liens, encumbrances, and other title matters created or
suffered to exist by Tenant; (iii) all matters created or suffered after the
date of this Lease by Landlord with Tenant's consent; (iv) all terms and
conditions of Government licenses, permits or approvals relating to the
Shoreside Complex, as a whole or in part, including, without limitation, the
Premises.
2.51 Person. an individual, corporation, association, partnership,
limited partnership, limited liability company, trust, unincorporated
organization or other entity.
2.52 Personal Default. Any Non-Monetary Default by Tenant that is not
reasonably susceptible of cure by a Prime Mortgagee, such as bankruptcy,
insolvency, a prohibited transfer, failure to deliver financial information
relating to Tenant (to the extent, if any, that any of the foregoing actually
constitute(s) a Non-Monetary Default under this Lease), and any other
Non-Monetary Default that by its nature relates only to Tenant or its Affiliates
or can reasonably be performed only by Tenant or its affiliates. The financial
condition of any Prime Mortgagee shall not be considered in determining whether
a Default is a Personal Default. Any Default that can be cured by the payment of
money is not a Personal Default.
2.53 Plans and Specifications. Tenant's Plans and Specifications for
the Shoreside Complex agreed upon in accordance with the Joint Venture
Agreement.
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2.54 Players' Lease. That certain sublease of a portion of the
Shoreside Complex by and between Players and Tenant of even date herewith, as
the same may be hereafter amended from time to time.
2.55 Players' Lease Commencement Date. As defined in Section 2.7 of the
Players' Lease.
2.56 Players' Premises. The Premises leased to Players under the
Players' Lease.
2.57 Prime Mortgage. A mortgage, deed of trust, deed to secure debt,
assignment, security interest, pledge, financing statement or any other
instrument(s) or agreement(s) intended to grant security encumbering the
Leasehold Estate, for any obligation (including a purchase-money or other
promissory note) as entered into, renewed, modified, consolidated, amended,
extended or assigned from time to time during the Term. A "Prime Mortgage" also
includes certain agreements entered into in connection with a "sale and
leaseback" transaction, as described in Section of this Lease.
2.58 Prime Mortgagee. The holder of a Prime Mortgage. Neither Tenant
nor any "Holding Entity" (as defined in the Joint Venture Agreement) may be, or
have the right of, a Prime Mortgagee under this Lease.
2.59 Prime Mortgagee's Agent. Any agent, designee or nominee of a Prime
Mortgagee, provided that such agent, designee or nominee is a wholly owned
subsidiary of the Prime Mortgagee. A Prime Mortgagee that is not an
Institutional Lender shall not be entitled to designate a Prime Mortgagee's
Agent.
2.60 Prime Rate. The prime rate (or base rate) of interest for
corporate loans that is reported in the Money Rates Column of The Wall Street
Journal published on the Business Day for which the rate is applicable (or the
next preceding Business Day, if the applicable day is not a Business Day) as
having been the rate in effect for corporate loans at large U.S. money center
commercial banks (whether or not such rate has actually been charged by any such
bank). If The Wall Street Journal ceases publication of the Prime Rate, the
prime rate (or base rate) from time to time announced by Bankers Trust Company,
New York, New York, or its successor (whether or not such rate has actually been
charged by such bank), or, if Bankers Trust Company discontinues the practice of
announcing the Prime Rate, the "Prime Rate" shall mean the highest rate charged
by such bank on short term, unsecured loans to its most credit-worthy large
corporate borrowers. If The Wall Street Journal: (a) publishes more than one
Prime Rate, the higher or highest rate shall apply, or (b) publishes a
retraction or correction of any such rate, the rate reported in such retraction
or correction shall apply. If the Prime Rate changes, interest rates in this
Lease which are based on the Prime Rate shall change, effective as of the first
day of each calendar month, to reflect the Prime Rate in effect on the last day
of the preceding calendar month. Notwithstanding anything to the contrary in
this Section, the Prime Rate shall never exceed the highest rate of interest
legally permitted to be charged in the State (without imposition of penalties
for criminal usury [the "Criminal Usury Rate"]) in transactions of the character
of this Lease between parties of a character similar to Landlord and Tenant.
8
2.61 Prohibited Liens. A mortgage, ship mortgage or other consensual
lien or judgment lien and any maritime, xxxxxx'x, mechanic's, vendor's,
laborer's or material supplier's statutory lien or other similar lien arising by
reason of work, labor, services, equipment or materials supplied, or claimed to
have been supplied, to Tenant or any Subtenant, which lien either: (a) is filed
against the Fee Estate or (b) is filed against the Leasehold Estate or a lesser
estate and, upon termination of this Lease, would under the law of the State
attach to the Fee Estate.
2.62 Prohibited Person (Landlord). Any Person or any Affiliate of such
Person as to which there has been an Unsuitability Determination, in accordance
with the procedures set forth in the Joint Venture Agreement whether or not the
Partnership still exists or remains the Tenant hereunder. Landlord shall provide
each Subtenant under the Xxxxxx'x Lease and the Players' Lease with at least
thirty (30) days prior Notice of any proposed transfer of Landlord's Estate or
any interest therein (excluding, however, the creation or transfer of any
easement), together with such documentation and information regarding the
proposed transferee as each Subtenant conducting Gambling Activity shall
reasonably request, to enable such Subtenant to confirm that the proposed
transferee is not a Prohibited Person (Landlord).
2.63 Prohibited Person (Tenant). At any time after Tenant is no longer
Riverside Joint Venture (the "Partnership"), any Person or Affiliate of such
Person that, in Landlord's reasonable judgment would or could, if such Person
owned an interest in the Leasehold Estate or lesser estate, endanger any gaming
license(s) held by an Affiliate of Landlord. At any time after Tenant is no
longer the Partnership, Tenant shall provide Landlord with at least thirty (30)
days prior Notice of any proposed transfer of Tenant's Leasehold Estate or any
lesser estate, or interest in any of them, together with such documentation and
information regarding the proposed transferee as Landlord shall reasonably
request, to enable Landlord to confirm that the proposed transferee is not a
Prohibited Person (Tenant). Failure of Landlord to object to such Person within
thirty (30) days of receipt of said Notice, documentation and information shall
be deemed agreement that such Person is not a Prohibited Person (Tenant).
2.64 Qualified Arbitrator. A partner or other individual designated by
Landlord or Tenant, as the case may be, who: (i) is employed by a disinterested,
reputable and nationally recognized certified public accounting firm or has
comparable qualifications; and (ii) has at least ten (10) years' experience in
the financial reporting and valuation of casino properties.
2.65 Reciprocal Easement Agreement. The Reciprocal Easement Agreement
between Landlord and Tenant to be entered into contemporaneously herewith in the
form attached hereto as Exhibit D.
2.66 Rent. Additional Rent, Fixed Rent, Percentage Rent and Substitute
Percentage Rent.
2.67 Shoreside Complex. All buildings and improvements constructed by
Tenant on the Premises and on the Venture Premises in accordance with this
Lease. The initial improvements comprising the Shoreside Complex are described
in the Plans and Specifications.
9
2.68 State. The State of Missouri.
2.69 State Revenue Reports. The daily tax remittal form required to be
submitted by a person or entity engaged in Gambling Activity to the Missouri
Gaming Commission pursuant to the Missouri Gambling Law, reporting Net Gaming
Revenue from the Premises.
2.70 State Revenue Audits. The quarterly external audit of Net Gaming
Revenue prepared for the benefit of the Missouri Gaming Commission pursuant to
the Missouri Gambling Law.
2.71 Sublease. Any sublease of the Premises or any part of the
Premises, or any other agreement or arrangement (including a license agreement)
made by Tenant granting any third party the right to occupy, use or possess any
portion of the Premises. The term "Sublease" includes a management agreement or
similar agreement and any concessionaire and license agreements that Tenant
elects to treat as Subleases. The term "Sublease" includes the Xxxxxx'x Lease,
the Players' Lease and the Xxxxxx'x Management Agreement.
2.72 Substantial Condemnation. A Condemnation that (i) results in the
Appraisal Buyout of Players or HMHC's interest under the Joint Venture
Agreement, or (ii) renders the continued operation of the Players' Premises, as
a whole, economically unfeasible as determined in accordance with the Joint
Venture Agreement, or (iii) after Tenant is no longer the Partnership a
Condemnation of the Players Premises or Shoreside Complex which renders the
Players Premises unusable as Excursion Gambling Boats as reasonably determined
by Landlord.
2.73 Subtenant. Any person having rights of occupancy, use or
possession under a sublease or license, including, without limitation, Xxxxxx'x
Lease, Players' Lease and the Xxxxxx'x Management Agreement.
2.74 Temporary Condemnation. A Condemnation relating to the temporary
right to use or occupy the Premises or Shoreside Complex or any part of the
Premises or Shoreside Complex.
2.75 Tenant's Property. All personal property purchased or leased by
Tenant or a Subtenant for use in connection with the Premises including, without
limitation, any Subtenant's Gaming Equipment.
2.76 Termination Date. The date when this Lease terminates or expires,
whether pursuant to the expiration or termination of the Term, Condemnation,
Casualty or an Event of Default.
2.77 Transfer. The assignment, sublease, pledge, mortgaging,
encumbering or other form of disposition, voluntarily or involuntarily, directly
or indirectly of any right to possession of, or legal or beneficial interest in
and to, the Leasehold Estate (or the Tenant) or the Fee Estate (or the
Landlord), as the case may be, including without limitation a transfer of
Capital Stock (as defined in the Joint Venture Agreement) in any direct or
remote parent entity of Landlord or Tenant (or its partners). Transfer shall
not include the sale, on a
10
national exchange such as the New York or NASDAQ Stock Exchange, of
publicly held shares of Xxxxxx'x Entertainment, Inc. or Players International,
Inc.
2.78 Unavoidable Delay. Delay in the performance of any obligation or,
where specifically provided for, a Prime Mortgagee's exercise of Mortgagee's
Cure Rights under this Lease, (excluding in any case any obligation to pay
money) arising from or on account of any cause whatsoever beyond the reasonable
control of the Person required or entitled to perform, including strikes, labor
troubles, litigation, Casualty, Condemnation, accidents, Laws, governmental
preemption, failure or refusal of a governmental body to issue a required permit
or license, war, riots, and other causes beyond such party's reasonable control,
whether similar or dissimilar to the causes specifically enumerated in this
Section. In no event shall Unavoidable Delay be deemed to include any delay
caused by an unwillingness or inability to make a payment required by this
Lease, or the wrongful act or omission to act of the Person invoking this
definition.
2.79 Waiver of Subrogation. A provision in, or endorsement to, any
insurance policy required by this Lease, by which the insurance carrier agrees
to waive all rights of recovery by way of subrogation against either party to
this Lease in connection with any loss covered by such insurance policy.
3. TERM.
3.1 Term. The term of this Lease (the "Term") shall commence on the
Commencement Date and expire 11:59 p.m. on the last day of the Fiscal Month that
includes the date eighty (80) years after the Players' Lease Commencement Date.
3.2 Confirmation of Dates. Promptly after the occurrence of any date
relevant to the calculation of Rent, or to the determination of the Term, the
parties shall enter into a certificate, in recordable form reasonably
satisfactory to both of them, memorializing such date. The failure of the
parties to enter into any such certificate shall not, however, invalidate or in
any way diminish the effectiveness of the actual date(s) to be set forth in the
certificate. If Landlord and Tenant disagree as to whether any such date has
occurred, then Tenant may pay Rent and otherwise perform under this Lease based
on Tenant's own determination of such date(s) unless and until such date(s) are
otherwise determined by the final judgment of a court of competent jurisdiction
provided that Tenant shall escrow in an interest bearing federally insured
account with a disinterested national bank with offices in St. Louis, Missouri
or the registry of the court hearing such dispute, any additional amounts
claimed by Landlord. If a national bank is used as escrow agent, it shall act
only in accordance with this Section, as modified or supplemented by: (i) joint
written instruction of Landlord and Tenant; or (ii) a final, unappealable order
of the court hearing such dispute; and shall be fully exonerated from liability
to Landlord or Tenant for any act or omission other than its gross negligence or
wilful misconduct. To the extent that any such court accepts Landlord's position
and rejects Tenant's, the court or escrow agent, as the case may be, shall
within five (5) Business Days after the court's order becomes final and
unappealable, remit to Landlord an amount equal to any previous underpayments of
Rent, together with interest earned thereon, and the remainder, if any, of the
escrow account shall be disbursed to Tenant. If the court accepts Tenant's
11
position and rejects Landlord's, the court or escrow agent, as the case may be,
shall within five (5) Business Days after entry of the court's final,
unappealable order remit to Tenant all the monies in the escrow account,
including interest. Failure of Tenant to establish such escrow account or to
escrow disputed amounts therein shall be a failure to cure a Monetary Default.
Notwithstanding the foregoing, Tenant's obligation to establish the foregoing
escrow account shall be deemed satisfied if Players establishes and maintains
such an escrow account as provided in the Players' Lease.
4. DEVELOPMENT AND CONSTRUCTION OF THE SHORESIDE COMPLEX.
4.1 Tenant's Obligation to Construct Shoreside Complex. Tenant shall
commence construction, and where appropriate, alteration and renovation of the
Shoreside Complex in accordance with the terms and provisions of the Joint
Venture Agreement, and shall enforce (unless waived in writing by both partners
of the Partnership) the construction covenants of the Players' Lease and the
Xxxxxx'x Lease and complete such construction, alteration and renovation within
three (3) years following the Commencement Date, which completion date shall be
extended so long as Tenant is pursuing construction with due diligence and in
good faith and such delay does not adversely affect the zoning or other permits
relating to the Shoreside Complex and otherwise has no material adverse effect
on the Shoreside Complex.
4.2 Construction Bonds and Permit Fees. Tenant shall pay, discharge or
bond or insure against all Prohibited Liens arising from construction of the
Shoreside Complex, all in accordance with the provisions of this Lease regarding
Prohibited Liens. Tenant shall obtain and pay for all permits and approvals
required by Law in order for Tenant to construct the Shoreside Complex.
4.3 Cooperation by Landlord. Upon Tenant's request, Landlord shall,
without cost to Landlord, promptly join in and execute any instruments
including, but not limited to, applications for building permits, demolition
permits, alteration permits, appropriate consents, zoning, rezoning or use
approvals, amendments and variances, easements, encumbrances, and/or liens
(excluding Mortgages) against the Premises or the Shoreside Complex (Fee Estate
and Leasehold Estate), and such other instruments as Tenant may from time to
time request to enable Tenant from time to time to use, develop, improve, and
construct the Shoreside Complex and other improvements on the Premises in
accordance with this Lease, provided each of the foregoing is in reasonable and
customary form and does not cause the Fee Estate to be encumbered as security
for any obligation and does not otherwise expose the Fee Estate to any material
risk of forfeiture during the Term. Tenant shall reimburse Landlord's reasonable
attorneys' fees incurred by Landlord in performing under this Section. Landlord
agrees not to oppose or object to any applications filed by Tenant with any
Government in connection with development, operation or alteration of the
Shoreside Complex and other improvements located on the Premises.
4.4 Title to Shoreside Complex and Tenant's Property. The Shoreside
Complex and Tenant's Property shall at all times during the Term be owned or
leased by, and shall belong to Tenant or Subtenant. Tenant or Subtenant, in the
case of its Tenant's Property only, shall have title to or lease such property
throughout the Term. All the benefits and
12
burdens of ownership of Tenant's Property shall be and remain in Tenant during
the Term. The Shoreside Complex and any Tenant's Property affixed to the
Premises or left in the Premises and not removed by Tenant within thirty (30)
days after the expiration or termination of the Term shall automatically and
without need for any further action or the execution of any further documents
become the property of Landlord.
After the Term, the Shoreside Complex shall be owned by, and shall
belong to Landlord.
5. RENT.
5.1 Fixed Rent. Throughout the Term, Tenant shall pay Landlord, without
notice or demand, in lawful money of the United States of America, at the office
of Landlord or at such other place as Landlord shall designate a net annual
rental (the "Fixed Rent") of ONE AND 00/100 DOLLAR ($1.00) per Fiscal Year,
payable in advance on the first day of each Fiscal Year.
5.2 No Improvements Rent. Landlord acknowledges that it is being
adequately compensated by the payment by Tenant of Fixed Rent and Percentage
Rent hereunder and the parties expressly intend, that construction of the
Shoreside Complex and Landlord's succession to Tenant's and Subtenant's
interests in the Shoreside Complex and Tenant's Property upon the termination or
expiration hereof shall not be construed to be Rent payable to Landlord under
the Lease.
5.3 Means of Payment. Tenant shall pay all Percentage Rent payable to
Landlord by wire transfer to Landlord's bank account, which Landlord shall
identify to Tenant (and Landlord shall have the right to change from time to
time by at least thirty (30) days' Notice to Tenant). All other Rent shall be
payable by company check of Tenant.
5.4 Percentage Rent. Beginning on the twentieth calendar day of each
Fiscal Month following the Commencement Date (Percentage Rent) and continuing
throughout the Term, Tenant shall pay, or shall cause the Subtenant occupying
Players' Premises to pay, Landlord the Percentage Rent from business conducted
at Players' Premises. Landlord may be required by Missouri Gambling Law to be
licensed, permitted or otherwise approved by the Missouri Gaming Commission to
lawfully receive Percentage Rent (such license, permit or approval is herein
referred to as a "Percentage Rent Approval"). If Percentage Rent may not
lawfully be paid because of the denial, revocation, suspension or other failure
of a Percentage Rent Approval unless the Missouri Gaming Commission permits the
payment by Tenant to Landlord of Approved Substitute Percentage Rent
(hereinafter defined), Tenant shall, during such period, continue to calculate
and report Percentage Rent to Landlord and Tenant shall deposit the
amount of Percentage Rent so reported into an escrow account (established and
governed in the manner described in Section 3.2) on the twentieth calendar day
of each Fiscal Month. If Percentage Rent Approval is subsequently obtained,
then, within thirty (30) days after Notice to Tenant of such event (rather than
a court order as provided in Section 3.2), Tenant's obligation to pay Percentage
Rent shall be reinstated and, to the extent lawful, funds in the aforementioned
escrow account, with interest thereon, shall be immediately paid to
13
Landlord. In no event shall any failure of a Percentage Rent Approval that is
caused by any act or omission of Tenant excuse Tenant's obligation to pay
Percentage Rent. Failure of Tenant to establish such escrow account shall be a
Monetary Default.
5.4.1 Reporting and Payment. Percentage Rent shall be
determined based upon Net Gaming Revenue from the Premises reported in the State
Revenue Reports and State Revenue Audits of Tenant or the occupant of Players'
Premises, subject to the right of Landlord (as provided in Section 5.4.3) to
independently audit the books and records of Tenant or such occupant, as the
case may be, and collect any additional amounts which such audit may reflect to
be due and owing under this Lease.
On the twentieth (20th) calendar day of each Fiscal Month following the
Commencement Date (Percentage Rent), Tenant shall, or shall cause the occupant
of the Players' Premises to:
(i) deliver to Landlord the Monthly Statement along with
copies of all State Revenue Reports and State Revenue Audits relating
to the immediately preceding Fiscal Month (or the Fiscal Quarter
containing such Fiscal Month) which Tenant or the occupant of the
Players' Premises is required to submit to the Missouri Gaming
Commission (specifically including the daily tax remittals, quarterly
audit required by ss.313.825 RSMo. and the monthly return required by
11 CSR 45-11.040); and
(ii) pay the Percentage Rent (or Substitute Percentage Rent,
as the case may be) for the immediately preceding Fiscal Month in the
manner set forth in Sections 5.3, 5.4 and 5.4.5 of this Lease.
If the Missouri Gaming Commission redetermines Net Gaming Revenue,
Landlord shall automatically be entitled to additional Percentage Rent hereunder
(or Tenant shall be entitled to a reduction of Percentage Rent) based upon such
redetermination applicable to the Percentage Rent Year for which such Percentage
Rent should have been paid. Tenant shall pay, or shall cause the
occupant of the Players' Premises to pay the additional Percentage Rent, in the
manner set forth in Section 5.3, within five (5) Business Days after the
Missouri Gaming Commission provides Notice of such redetermination to Tenant or
the occupant of the Players' Premises and if reduction of Percentage Rent is
required by such redetermination, Tenant may deduct such amount from ensuing
Percentage Rent payment(s).
5.4.2 Accounting Records. Tenant shall maintain, or shall cause the
occupant of Players' Premises to maintain, (at the Premises or at Players'
financial offices in Las Vegas, Nevada, or elsewhere, identified to Landlord in
writing) accounting books and records in accordance with the Accounting
Principles and the Missouri Gambling Law, sufficient to enable Tenant and
Landlord to calculate Percentage Rent. Tenant shall preserve, or shall cause the
occupant of Players' Premises to preserve books and records relating to each
Percentage Rent Year for at least three (3) years after the end of such
Percentage Rent Year. If at the conclusion of such period a dispute is pending
between Landlord and Tenant regarding the amount of Rent due under this Lease,
then Tenant shall continue to preserve, or
14
shall cause the occupant of Players' Premises to preserve such records pending
the final disposition of such dispute.
5.4.3 Landlord's Right to Audit. Within (and in no event later than)
one hundred eighty (180) days after the end of each Percentage Rent Year, and
more frequently if Landlord should reasonably believe that Tenant's or such
occupant's reporting is not true and accurate, Landlord shall be entitled to
cause a certified public accounting firm designated by Landlord to audit the
books and records relevant to the calculation of Net Gaming Revenue reported by
Tenant or such occupant during the preceding Percentage Rent Year. Any audit
shall be performed in a reasonable manner, during ordinary business hours and
without unreasonably interfering with Tenant's or such occupant's business. If
such audit reveals that Net Gaming Revenue was understated, then within five (5)
Business Days after receipt of the auditor's report, Tenant shall pay, or cause
to be paid the net additional Percentage Rent due on account of the audit
corrections. If such audit reveals that Net Gaming Revenue was overstated, then
Tenant shall be entitled to a credit against the next payment(s) of Percentage
Rent under this Lease in an amount equal to the previous overpayment revealed by
the audit corrections. Any adjusting payment on account of previous overpayment
or underpayment shall bear interest at the Prime Rate from the date it would
have been paid (or the date of Tenant's previous overpayment, if applicable) had
Tenant's or such occupant's reports and monthly returns been correct until the
date actually paid or credited. If Percentage Rent was understated by more than
three percent (3%) for the period audited, then Tenant shall pay, or cause such
occupant to pay the reasonable cost of such audit; otherwise the audit shall be
conducted at Landlord's expense. The rights provided herein shall survive the
termination or expiration of the Term for three full Fiscal Years (plus any
partial Fiscal Year remaining in the year of termination or expiration of this
Lease, as the case may be).
5.4.4 Confidentiality. Landlord shall preserve the confidentiality of
all information obtained hereunder relating to Net Gaming Revenue from Players'
Premises, except in any litigation or arbitration proceedings between the
parties, when compelled by judicial or administrative order, or when advised by
counsel that disclosure is required to comply with applicable securities Law.
5.4.5 Substitute Percentage Rent. After the Commencement Date
(Percentage Rent), with respect to any period from the date an Operating
Covenant Default has occurred and Landlord has given Tenant Notice of such
Operating Covenant Default and continuing until such Operating Covenant Default
is cured (such period during which an Operating Covenant Default has occurred
and is continuing being referred to as a "Substitute Period"), Tenant shall pay,
or cause the occupant of the Players' Premises to pay, during any Substitute
Period arising due to an Operating Covenant Default, an amount (the "Default
Substitute Percentage Rent") equal to the greater of (A) Percentage Rent
allocable to such Substitute Period and (B) Average Percentage Rent (hereinafter
defined). After the Commencement Date (Percentage Rent), with respect to any
period from the date Landlord has failed to receive its Percentage Rent Approval
(or such Percentage Rent Approval is revoked or suspended) and the Missouri
Gaming Commission (or other gaming authority whose actions have led to an
Unsuitability Determination affecting Landlord) permits payment of Approved
Substitute Percentage Rent (hereinafter defined) by Tenant to Landlord (such
period during which Landlord no longer has its Percentage Rent Approval also
being referred to as a
15
"Substitute Period"), Tenant shall pay during any Substitute Period arising due
to Landlord's failure to have Percentage Rent Approval an amount equal to
Average Percentage Rent, but in no event shall Average Percentage Rent exceed
the Percentage Rent otherwise allocable to such Substitute Period (the "Approved
Substitute Percentage Rent", such Default Substitute Percentage Rent and
Approved Substitute Percentage Rent being sometimes hereinafter collectively
referred to as the "Substitute Percentage Rent"). "Average Percentage Rent" is a
daily amount equal to the Percentage Rent payable for the two preceding
Percentage Rent Years divided by 730, which daily amount is then multiplied by
the number of days in a Substitute Period, provided that if the Premises have
been operating for fewer than two full Percentage Rent Years, the daily amount
shall equal the Percentage Rent payable for the period from the Commencement
Date (Percentage Rent) through the day preceding the commencement of a
Substitute Period divided by the number of days in such measuring period and
further provided that if a Substitute Period has previously occurred during the
applicable measuring period for Average Percentage Rent, Landlord shall
reasonably adjust the amount to be used as the daily amount for Average
Percentage Rent to reflect an average daily Percentage Rent during periods of
operation in accordance with Section 7.1.
5.4.6 Assignment of Percentage Rent to Landlord. Tenant hereby assigns
to Landlord all of its right, title and interest in and to and with respect to
the Percentage Rent payable under the Players' Lease and its rights under the
Parent Guaranty (as defined in the Players Lease) and any other Sublease of
Players' Premises (which for purposes hereof shall include Substitute Percentage
Rent), including without limitation Tenant's right to receive all Percentage
Rent, Substitute Percentage Rent and all reports and returns under Section 5.2.1
of the Players' Lease, Tenant's right to audit books and records pursuant to
Section 5.2.3 thereof, the rights to enforce payment of Percentage Rent and
Substitute Percentage Rent in Landlord's own name or in the name of Tenant and
all other remedies of Tenant on a Default in the payment of Percentage Rent and
Substitute Percentage Rent afforded Tenant under the Players' Lease or such
other Lease. Tenant also hereby assigns to Landlord the rights in all insurance
proceeds payable with respect to the Termination Payment (as defined in the
Players Lease) and Tenant agrees to direct Players to name Xxxxxx'x as the
insured in the insurance policy insuring the Termination Payment. So long as
Players performs its obligations under the Players' Lease, Tenant's obligations
under Sections 5.4, 5.4.1, 5.4.2 and 5.4.5 hereof shall be deemed satisfied.
5.5 Additional Rent. In addition to Fixed Rent and Percentage Rent,
Tenant shall pay Landlord, as additional rent under this Lease, all Additional
Rent, as and when same is due any payable and before any interest or penalty may
attach for nonpayment thereof.
5.6 No Conditional Payment. No payment by any party of a lesser amount
than the total of all sums due hereunder shall be deemed to be other than on
account of the sums then due, applied in inverse priority of their due dates,
nor shall any endorsement or statement on any check, other payment or
accompanying letter or other communication or notice be deemed an accord and
satisfaction. Any party may accept such payment in cash or negotiate such check
or other payment without prejudice to that party's right to recover the balance
of such sums or to pursue any other remedy provided in this Lease or otherwise
available, regardless of whether that party makes any notation on such
instrument of payment or
16
otherwise notifies the other party that such acceptance, cashing or negotiation
is without prejudice to any of that party's rights.
5.7 Interest on Overdue Rent. Unless otherwise provided herein, all
Rent (other than Percentage Rent, Approved Substitute Percentage Rent and
Default Substitute Percentage Rent, which shall be due as provided in
Section 5.4.1) owed by Tenant to Landlord shall be due ten (10) calendar days
from the date the Landlord renders statements of account or invoices therefor.
If any Rent (including, without limitation, Percentage Rent, Approved Substitute
Percentage Rent and Default Substitute Percentage Rent) is not received by
Landlord within one Business Day after the date due, Tenant agrees to pay to
Landlord, interest at the Prime Rate plus eight percent (8%) but not in excess
of the Criminal Usury Rate (the "Default Rate") on the overdue amount from the
date such obligation was due until paid.
6. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS.
6.1 Landlord's Net Return. The parties intend that this Lease shall
constitute a "net lease," so that the Fixed Rent, Percentage Rent and Substitute
Percentage Rent shall provide Landlord with "net" return for the Term, free of
any expenses or charges with respect to the Premises, except as specifically
provided in this Lease. Accordingly, Tenant shall pay as Additional Rent and
discharge, before failure to pay the same shall create a material risk of
forfeiture or give rise to a penalty, each and every item of expense, of every
kind and nature whatsoever, related to or arising from the Premises, or by
reason of or in any manner connected with or arising from the development,
leasing, operation, management, maintenance, repair, use or occupancy of the
Premises, the Shoreside Complex, Tenant's Property or any portion thereof.
Notwithstanding anything to the contrary in this Lease, Tenant shall not be
required to pay any of the following incurred by Landlord: (a) principal,
interest, or other charges payable under any Fee Mortgage; (b) depreciation,
amortization, financing or refinancing costs incurred by Landlord with respect
to the Fee Estate or the Premises; (c) consulting, overhead, travel, legal,
staff, and other similar costs incidental to Landlord's ownership of the
Premises, other than reasonable attorneys' fees incurred by Landlord and payable
by Tenant pursuant to express provisions of this Lease; and (d) any costs
arising from or pursuant to any instrument or agreement affecting the Premises
that is not a Permitted Exception and to which Landlord is a party and Tenant is
not a party.
6.2 Impositions. For any period within the Term (with daily proration
for periods partially within the Term and partially outside the Term), Tenant
shall pay and discharge, before failure to pay the same shall create a material
risk of forfeiture or give rise to a penalty, all Impositions. Landlord shall
arrange for direct billing of all Impositions to Tenant. Tenant shall also pay
all interest and penalties assessed by any Government on account of late payment
of any Imposition, unless Tenant has not received notice of such Imposition due
to Landlord's failure to arrange for such direct billing.
6.3 Assessments in Installments. To the extent that may be permitted by
law, Tenant shall have the right to apply for conversion of any assessment to
cause it to be payable
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in installments. After such conversion, Tenant shall pay and discharge only such
installments of such assessment as shall become due and payable during the Term.
6.4 Combined Tax Lots. If, as of the Commencement Date, the Premises
are part of a tax lot (a "Combined Tax Lot") that includes any land or
improvements other than the Premises, then the parties shall diligently and
expeditiously cooperate (including by bringing such proceedings as may be
necessary), all at Landlord's expense, including Tenant's reasonable attorneys'
fees, to cause the Combined Tax Lot to be divided so that the Premises
(including the Fee Estate and the Leasehold Estate) shall be a single separate
tax lot that is no longer a Combined Tax Lot. Pending such division of the
Combined Tax Lot: (a) each party shall promptly provide the other with a copy of
any tax xxxx received by such party relating to the Combined Tax Lot; (b) Tenant
shall pay a portion of the Impositions assessed with respect to the Combined Tax
Lot equal to the estimated assessment of the Premises [which shall include,
without limitation, one hundred percent (100%) of Impositions attributable to
the Shoreside Complex and other improvements made by Tenant or any Subtenant]
divided by the assessment of the Combined Tax Lot; (c) the estimated assessment
for the Premises shall be determined, to the extent possible, based on
preliminary information from the tax assessment authorities and otherwise by
Tenant, in consultation with Landlord (and, in any event, when the assessment of
the Premises has been determined the parties shall make such adjusting payments
[with interest at the Prime Rate] as shall be appropriate to compensate for
errors in the estimated payments previously made); and (d) if Tenant fails to
pay its share of taxes and charges for the Combined Tax Lot before delinquency
and such failure continues for ten (10) Business Days after Notice from
Landlord, then Landlord shall in addition to all other remedies provided in this
Lease be entitled to pay Tenant's unpaid Impositions with respect to the
Combined Tax Lot, and Tenant shall promptly upon demand reimburse Landlord's
advances made on Tenant's account.
6.5 Direct Payment by Landlord. If any Imposition or other item of Rent
required to be paid by Tenant is required by applicable Laws to be paid directly
by Landlord, then: (a) Landlord appoints Tenant as Landlord's attorney in fact
for the purpose of making such payment; and (b) if the Person entitled to
receive such payment refuses to accept it from Tenant, then Tenant shall give
Landlord Notice of such fact no later than ten (10) days prior to the date such
payment is due, shall accompany such Notice with such payment and shall include
in such Notice reasonable instructions as to the further remittance of such
payment. Landlord shall with reasonable promptness comply with Tenant's
reasonable instructions and shall assume responsibility for interest and
penalties resulting from Landlord's failure to do so.
6.6 Utilities. Tenant shall pay all fuel, gas, light, power, water,
sewage, garbage disposal, telephone and other utility charges, and the expenses
of installation, maintenance, use and service in connection with the foregoing,
relating to the Premises, the Venture Premises or the Shoreside Complex during
the Term.
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7. USE.
7.1 Permitted Uses. After the Commencement Date (Percentage Rent)
Tenant shall or shall cause the occupant thereof to, except as herein otherwise
specifically provided, continuously occupy and use the Players' Premises for the
conduct of Gambling Activity as required by Section 7.1 of the Players' Lease.
The remainder of the Shoreside Complex shall be used in a manner that will
comply with all Permitted Exceptions.
7.2 Tenant's Failure to Operate the Business. In the event neither
Tenant nor an occupant of the Players' Premises at any time after the
Commencement Date (Percentage Rent) shall continuously operate, or
cause to be operated the Players' Premises in the manner set forth in Section
7.1 and Exhibit E hereto, or shall vacate the Players' Premises prior to the
expiration of the Term hereof, the parties agree that irreparable harm and
damages, which damages are not readily ascertainable, shall be caused to
Landlord. The parties therefore agree that in such event Landlord, at its
option, shall be entitled to the rights and remedies provided in Section 27.2 of
this Lease.
8. LAWS.
8.1 Compliance with Law. During the Term, Tenant shall, at its own
expense, observe and comply with all Laws affecting the Premises and/or the
Shoreside Complex. Notwithstanding the foregoing, Tenant shall have the right to
contest any such Laws in accordance with this Lease. Tenant shall (so long as
HMHC is a partner in Tenant and is prepared to meet its obligations under the
Joint Venture Agreement) make any Mandated Alterations with respect to the
Premises and/or the Shoreside Complex required by Law arising during the Term.
8.2 Licenses and Permits. Tenant shall procure, in a timely manner,
every permit, license, certificate or other authorization required in connection
with the lawful and proper maintenance, operation, use and occupancy of the
Premises or required in connection with any improvements erected on the Premises
or with respect to the Shoreside Complex and comply with all such permits,
licenses, certificates and other authorizations, unless Tenant is prevented from
so performing by the acts or omissions of HMHC.
8.3 Environmental Matters.
8.3.1 Compliance. All activities upon the Premises shall comply with
Environmental Law.
8.3.2 No Violations. Tenant shall not cause or permit any Hazardous
Materials to be brought upon, stored, handled, used, generated, released into
the environment, or disposed of, on, under, from, or about the Premises (which
for purposes of this Section shall include, without limitation, subsurface soil
and groundwater) without the prior written consent of Landlord. Landlord may, in
its sole discretion, place such conditions as Landlord deems appropriate with
respect to such Hazardous Materials and may further require that Tenant
demonstrate to the Landlord that such Hazardous Materials are necessary or
useful to
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Tenant's business and will be generated, stored, handled, used, and disposed of
in a manner that complies with Environmental Law and with good business
practices. Tenant acknowledges and agrees that Landlord may reasonably utilize
an environmental consultant to assist in determining conditions of approval and
monitoring in connection with the presence, storage, generation, handling, or
use of Hazardous Materials on or about the Premises by Tenant or Tenants'
agents, employees, invitees or Subtenants.
8.3.3 Cost of Compliance. If the presence of any Hazardous Materials
(other than Preexisting Hazardous Materials [hereinafter defined]) on, under,
from, or about the Premises results in (i) injury to any individual, (ii) injury
to or contamination of the Premises, or (iii) injury to or contamination of any
real or personal property wherever situated, then Tenant, at its sole cost and
expense, shall promptly take all actions necessary to return the Premises to the
condition existing prior to the introduction of such Hazardous Materials to the
Premises and to remedy or repair any such injury or contamination. Without
limiting any other rights or remedies of Landlord under this Lease or at law or
in equity, Tenant shall pay the cost of any cleanup work performed on, under, or
about the Premises as required by this Lease or Environmental Law in connection
with the investigation, monitoring, removal, and disposal of such Hazardous
Materials.
8.3.4 Remediation. Notwithstanding any other provision of this Section,
Tenant shall not, without Landlord's prior written consent which consent shall
not unreasonably be withheld, take any remedial action in response to the
presence of any Hazardous Materials on, under, from, or about the Premises, or
enter into any settlement agreement, consent decree, or other compromise with
any governmental agency with respect to any Hazardous Materials claims;
provided, however, Landlord's prior written consent shall not be necessary in
the event that the presence of Hazardous Materials on, under, from, or about the
Premises (i) poses an immediate threat to the health, safety, or welfare of any
individual, or (ii) is of such a nature that an immediate remedial response is
necessary or appropriate and it is not possible to obtain Landlord's prior
written consent before such response.
8.4 Disclosure. Tenant shall promptly notify Landlord of, and shall
promptly provide Landlord with true, correct, complete, and legible copies of,
all of the following relating to the Premises or to Tenant's activities at the
Premises:
8.4.1 Reports. Reports and other documents filed by Tenant with any
governmental agency or body pursuant to Environmental Law including, without
limitation, all permit applications, permits, monitoring reports, workplace
exposure and community exposure warnings or notices, and environmental audits or
assessments relating to water discharges, air pollution, waste generation or
disposal, underground or aboveground storage tanks, or Hazardous Materials;
8.4.2 Notices. All correspondence, notices, information requests,
complaints, pleadings, legal documents, and other documents received by Tenant
from any Government agency related to Hazardous Materials;
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8.4.3 Environmental Audits. All environmental audits or assessments
(even those which may be characterized as confidential);
8.4.4 Orders. All orders, reports, notices, listings, and
correspondence (including those which may be considered confidential) of or
concerning the release, investigation, compliance, cleanup, remedial or
corrective action, or abatement of Hazardous Materials, whether or not required
by Environmental Law; and
8.4.5 Pleadings. All correspondence, notices, information requests,
complaints, pleadings, and legal documents filed against Tenant related to
Tenant's use, handling, storage, or disposal of Hazardous Materials.
8.5 Indemnification. To the fullest extent permitted by law, Tenant
hereby agrees to indemnify, hold harmless, protect and defend (with attorneys
reasonably acceptable to Landlord) Landlord and any successors to all or any
portion of Landlord's interest in the Premises and their respective directors,
officers, partners, beneficiaries, employees, authorized agents, affiliates,
representatives, and mortgagees from and against any and all liabilities,
losses, damages (including, without limitation, damages for the loss or
restriction on use of rentable or usable space or any amenity of the Premises),
diminution in the value of the Premises, judgments, fines, demands, claims,
recoveries, deficiencies, costs, and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs, and all other
professional or consultant's expenses), whether foreseeable or unforeseeable,
arising directly or indirectly out of:
(i) the breach by Tenant of any of its covenants or
representations made or to be made pursuant to Sections 8.3, 8.4 and,
this Section 8.5 and 8.6 hereof, or
(ii) the presence (except for Preexisting Hazardous
Materials), use, handling, generation, storage, treatment, or on-site
or off-site disposal or transportation of Hazardous Materials on, into,
from, under or about the Premises by Tenant or Tenant's agents,
employees, invitees or Subtenants,
and specifically including, without limitation, the cost of any required or
necessary repair, restoration, clean-up (including, but not limited to, the
costs of investigation, monitoring, and removal of Hazardous Materials [except
for Preexisting Hazardous Materials]) or detoxification of the Premises or other
property where such Hazardous Materials have come to be located, and the
preparation of any closure or other required plans, whether such action is
required or necessary during the term of this Lease or after the expiration of
this Lease.
8.6 Tenant's Further Responsibility at Termination or Expiration of
Lease.
8.6.1 Surrender. Promptly upon the expiration or sooner termination of
this Lease, Tenant shall represent to Landlord in writing that (i) Tenant has
made a diligent effort to determine whether any Hazardous Materials are on,
under, or about the Premises as a result of any acts or omissions of Tenant or
Tenant's agents, employees, invitees or Subtenants, and (ii) no such Hazardous
Materials exist on, under, or about the Premises other than as specifically
identified to Landlord by Tenant in writing.
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8.6.2 Storage Tanks. Any and all underground or aboveground
storage tanks on the Premises, along with their respective piping, pumps,
dispensing equipment, and dispensing islands, are not fixtures but are part of
Tenant's Property. Tenant shall remove all such property from the Premises upon
termination of this Lease. Such removal shall comply with Environmental Law. Any
agreement by Landlord that Tenant may abandon such Tenant's Property on the
Premises must be in writing.
8.7 Landlord's Environmental Remedies.
8.7.1 Inspection Rights. Landlord shall have the right, but not the
obligation, subject to the provisions of Article 25 hereof, to inspect,
investigate, sample, and monitor the Premises at any time to determine whether
Tenant is complying with the terms of this Article, and in connection therewith,
Tenant shall provide Landlord with full access to all relevant facilities,
records, and personnel.
8.7.2 Self Help. If Tenant is not in compliance with any of the
provisions of this Article, or in the event of a release of Hazardous Material
(other than Preexisting Hazardous Materials) on, under, from, or about the
Premises, Landlord shall have the right, but not the obligation, to immediately
enter upon the Premises and to discharge Tenant's obligations under this Article
at Tenant's expense, including without limitation, the taking of emergency or
long-term remedial action. Landlord shall endeavor to minimize interference with
Tenant's business but shall not be liable for any such interference.
8.7.3 Hazardous Material Release. If Landlord has a good-faith reason
to believe that Tenant or Tenant's agents, employees, invitees or Subtenants may
have caused or permitted the release of a Hazardous Material on, under, from or
about the Premises, then Landlord may require Tenant, at Tenant's sole cost and
expense, to conduct monitoring activities on or about the Premises reasonably
satisfactory to Landlord concerning such release of Hazardous Materials on,
under, from or about the Premises.
8.7.4 Clean Up. If Tenant, pursuant to Section 8.6.1, discloses the
existence of Hazardous Materials on, under, from, or about the Premises, or if
Landlord at any time discovers or is informed that Hazardous Materials (other
than Preexisting Hazardous Materials) have been released, disposed of, spilled,
or leaked on, under, from, or about the Premises, Tenant shall, at Landlord's
request, immediately prepare and submit to Landlord within thirty (30) days
after such request a comprehensive plan, subject to Landlord's approval,
specifying the actions to be taken by Tenant to return the Premises to the
condition existing prior to the introduction of such Hazardous Materials.
Landlord, in its sole discretion, may retain a consultant, which shall be at
Tenant's sole cost and expense, to review and comment upon such plan. Upon
Landlord's approval of such clean-up plan, Tenant shall, at Tenant's sole cost
and expense, implement such plan and proceed to clean up such Hazardous
Materials as soon as reasonably possible, but in any event within the time
period prescribed by any Government authority in accordance with Environmental
Law and as required by such plan and this Lease. Tenant acknowledges that
Landlord's review of and comments upon such plan will not prevent any
governmental agency with appropriate jurisdiction from imposing further or other
requirements. All such cleanups and remedial actions shall be at Tenant's sole
cost and expense.
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8.7.5 Landlord Participation. Landlord, at Tenant's sole cost and
expense, shall have the right, but not the obligation, to join and participate
in any legal or administrative proceedings or actions involving Tenant in
connection with any claims, demands, or causes of action arising out of the
storage, generation, handling, use, or disposal of Hazardous Materials (other
than Preexisting Hazardous Materials) on, under, from, or about the Premises.
8.7.6 Fees and Expenses. All sums reasonably disbursed, deposited, or
incurred by Landlord in connection with its rights and remedies under this
Article, including without limitation, all costs, expenses, and actual
attorneys' and consultants' fees, shall be due and payable by Tenant to Landlord
as an item of Additional Rent, on demand by Landlord, together with interest
thereon at the Default Rate from the date 30 days after the date of such demand
until paid by Tenant.
8.8 Landlord's Indemnity. Landlord and Tenant are each in possession of
a copy of the Phase I Environmental Assessment Report dated October 17, 1995
performed by Xxxxx, Xxxxxx & Associates, Inc. (the "Assessment"). To the best
knowledge of Landlord, based solely on the Assessment, there are no Hazardous
Materials on the Premises. Landlord shall defend, fully indemnify and hold free
and harmless Tenant from and against all claims, judgments, damages, penalties,
fines, costs, liabilities or losses and costs of remediation, if any, that arise
after the Commencement Date, and that are imposed on or paid by or asserted
against Tenant by reason of or on account of Hazardous Materials which were
present at any time or times on the Premises prior to the Commencement Date (the
"Preexisting Hazardous Materials").
9. MAINTENANCE AND ALTERATIONS.
9.1 Obligation to Maintain. During the Term, Tenant shall keep and
maintain the Premises and the Shoreside Complex in good order, condition and
repair and for so long as Tenant is the Partnership in accordance with the
provisions of the Joint Venture Agreement and the provisions of Article
28 of this Lease, subject to Casualty and Condemnation (governed by the separate
applicable provisions of this Lease), reasonable wear and tear, and any other
conditions that Tenant is not required to repair pursuant to this Lease.
9.2 Tenant's Right to Perform Alterations. At Tenant's sole cost and
expense, Tenant shall be entitled but not required to make and from time to time
alter, modify or reconstruct, any improvements, repairs, or alterations to the
Premises without Landlord's consent subject to the provisions of this Lease, as
Tenant shall consider necessary or appropriate. Tenant shall perform all
construction work in connection with any improvement, repair or alteration to
the Premises or the Shoreside Complex in compliance with all Laws and Permitted
Exceptions.
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10. PROHIBITED LIENS.
10.1 Tenant's Covenant. Tenant shall provide Landlord a performance and
payment bond, satisfactory to Landlord, naming Landlord as a dual obligee for
all construction work undertaken on the Premises. Tenant shall not suffer or
permit any Prohibited Lien to be filed. If a Prohibited Lien is filed then
Tenant shall, within thirty (30) days after receiving Notice of such filing (but
in any case within fifteen (15) days after receipt of Notice of commencement of
foreclosure proceedings), commence and then prosecute appropriate action to
cause such Prohibited Lien to be paid, discharged or bonded (by issuance to
Landlord of a title insurance endorsement insuring against all loss or damage
arising pursuant to such Prohibited Lien). Nothing in this Lease shall be
construed to restrict Tenant's right to contest the validity of any Prohibited
Lien and to pursue Tenant's position to a final judicial determination provided
that an appropriate and adequate title insurance endorsement is issued to
Landlord to assure that there may be no forfeiture (including any judicial or
foreclosure sale) of the Leasehold Estate or the Fee Estate.
10.2 Protection of Landlord. Notice is hereby given that Landlord shall
not be liable for any labor or materials furnished or to be furnished to Tenant
or any Subtenant upon credit, and that no mechanic's or other lien for any such
labor or materials shall attach to or affect the Fee Estate. Nothing in this
Lease shall be deemed or construed in any way to constitute Landlord's consent
or request, express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer, equipment or material supplier for the performance of
any labor or the furnishing of any materials or equipment for any improvement,
alteration or repair of, or to, the Premises, or any part of the Premises, nor
as giving Tenant or any Subtenant any right, power or authority to contract for,
or permit the rendering of, any services, or the furnishing of any materials
that would give rise to the filing of any liens against the Fee Estate. Tenant
shall Indemnify Landlord against any work performed on the Premises and/or the
Shoreside Complex for or by Tenant or any Subtenant.
11. INDEMNIFICATION; LIABILITY OF LANDLORD.
11.1 Mutual Indemnity Obligations. Landlord and Tenant shall each
Indemnify the other against: (a) any wrongful act, wrongful omission or
negligence of the Indemnitor (and, in the case of Tenant, that of any
Subtenants) or its or their partners, directors, officers, or employees; and (b)
any breach or default by the Indemnitor under this Lease. In addition to and
without limiting the generality of the foregoing indemnity, Tenant shall
Indemnify Landlord against all the following matters (except to the extent any
claim arises from any wrongful act, wrongful omission or gross negligence of
Landlord): (x) the conduct, management or occupancy of or from any work or
activity performed in and on the Premises and/or the Shoreside Complex during
the Term; (y) the condition of the Premises and the Shoreside Complex or any
adjoining street, curb or sidewalk, or of any vaults, tunnels, passageways or
space under, adjoining or appurtenant thereto; and (z) any accident, injury or
damage whatsoever caused to any individual or property occurring during the
Term, in or on the Premises, the Shoreside Complex or upon or under any
adjoining sidewalks or appurtenant street, curb, vaults, tunnel, passageway or
space. Furthermore, Tenant agrees to pay, and to Indemnify Landlord against,
reasonable legal costs, including reasonable counsel fees and
24
disbursements, incurred by Landlord in obtaining possession of the Premises and
the Shoreside Complex if Tenant fails to surrender possession upon the
expiration or earlier termination of the Term. Notwithstanding anything to the
contrary in this Lease, Tenant shall not be required to Indemnify Landlord from
or against Landlord's intentional acts or omissions or gross negligence.
11.2 Liability of Landlord. Tenant is and shall be in exclusive control
and possession of the Premises and Shoreside Complex during the Term as provided
in this Lease. Subject to Section 11.1, Landlord shall not be liable
for any injury or damage to any property or to any individual occurring on or
about the Premises or the Shoreside Complex. Furthermore, subject to Section ,
Landlord shall not be liable for any injury or damage to any property of Tenant,
Subtenants or of any other person, during the Term. The provisions of this Lease
permitting Landlord to enter and inspect the Premises and Shoreside Complex are
intended to allow Landlord to be informed as to whether Tenant and Subtenants
are complying with the agreements, terms, covenants and conditions of this
Lease, and to the extent permitted by this Lease, to perform such acts required
by this Lease as Tenant or Subtenants shall fail to perform. Such provisions
shall not be construed to impose upon Landlord any liability to third parties.
11.3 Indemnification Procedures. Wherever this Lease requires an
Indemnitor to Indemnify an Indemnitee, the following procedures and requirements
shall apply:
11.3.1 Prompt Notice. The Indemnitee shall give the Indemnitor prompt
Notice of any claim. To the extent, and only to the extent, that both (a) the
Indemnitee fails to give prompt Notice and (b) the Indemnitor is thereby
prejudiced, the Indemnitor shall be relieved of its indemnity obligations under
this Lease.
11.3.2 Selection of Counsel. The Indemnitor shall be entitled to select
counsel (reasonably acceptable to the Indemnitee, but counsel to the
Indemnitor's insurance carrier shall be deemed satisfactory). Notwithstanding
anything to the contrary in the preceding sentence, the Indemnitee, unless the
Indemnitee or an Affiliate of the Indemnitee has previously approved the
selection of counsel as a partner of Indemnitor, shall be entitled to select the
Indemnitee's own counsel and be represented by such counsel, and if the
Indemnitee selects its own counsel, then such counsel shall consult and
reasonably cooperate with the Indemnitor's counsel and the Indemnitor and the
Indemnitee shall each pay fifty percent (50%) of the reasonable attorneys' fees
of the Indemnitee's counsel.
11.3.3 Settlement. The Indemnitor may, with the consent of the
Indemnitee, not to be unreasonably withheld, settle the claim, except that no
consent by the Indemnitee shall be required as to any settlement by which (x)
the Indemnitor procures (by payment, settlement, or otherwise) a release of the
Indemnitee pursuant to which the Indemnitee is not required to make any payment
whatsoever to the third party making the claim, (y) neither the Indemnitee nor
the Indemnitor acting on behalf of the Indemnitee makes any admission of
liability, and (z) the continued effectiveness of this Lease is not jeopardized
in any way.
11.3.4 Insurance Proceeds. The Indemnitor's obligations shall be
reduced by net insurance proceeds paid to an insured person or entity in
satisfaction of an Indemnitee's
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liability to such person or entity or by net insurance proceeds actually
collected by the Indemnitee on account of the loss.
12. RIGHT OF CONTEST.
Tenant shall have the right to contest, at its sole expense, by
appropriate legal proceedings diligently conducted in good faith, the
amount or validity of any Imposition or Prohibited Lien; the valuation,
assessment or reassessment (whether proposed or final) of the Premises or
Shoreside Complex for purposes of real estate taxes; the validity of any Law or
the application of any Law to the Premises or Shoreside Complex. Tenant may
defer payment of the contested Imposition, Prohibited Lien or compliance with
the contested Law pending the outcome of such contest, provided that such
deferral does not subject the Premises to risk of imminent forfeiture or
Landlord to any risk of criminal liability; that any Prohibited Lien is bonded
pending such contest and thereafter removed permanently as required by Section
10.1 hereof. Landlord shall not be required to join in any such contest
proceedings unless a Law shall require that such proceedings be brought in the
name of Landlord as owner of the Fee Estate. In such case, Landlord shall
cooperate with Tenant so as to permit such proceedings to be brought in
Landlord's name. In addition to, and without limiting, Landlord's obligations
under the preceding sentence, Landlord appoints Tenant as Landlord's
attorney-in-fact, irrevocably, with full power of substitution, to execute and
deliver any documentation, and to otherwise act on Landlord's behalf to the full
extent Landlord could and in Landlord's place and stead, in any such proceeding.
This appointment is coupled with an interest and is irrevocable. Tenant shall
pay all costs and expenses (including attorneys' fees) incident to such
proceedings. Tenant shall Indemnify Landlord against such contest. Tenant shall
be entitled to any refund of any Imposition (and penalties and interest paid by
Tenant) based upon Tenant's prior overpayment of such Imposition, whether such
refund is made during or after the Term. Upon termination of Tenant's contest of
an Imposition, Tenant shall pay the amount of such Imposition (if any) as has
been finally determined in such proceedings to be due, together with any costs,
interest, penalties or other liabilities in connection with such Imposition.
Upon final termination of Tenant's contest of a Law, Tenant shall comply with
such final determination. Provided no Event of Default has occurred, Landlord
shall not enter any objection to any contest proceeding undertaken by Tenant
pursuant to this Article. Provided no Event of Default has occurred, Tenant's
right to contest any Imposition or the valuation, assessment or reassessment of
the Premises for tax purposes shall be to the exclusion of Landlord, and
Landlord shall have no right to contest the foregoing without Tenant's consent,
not to be unreasonably withheld.
13. INSURANCE.
13.1 Tenant to Insure. Tenant shall, at Tenant's sole cost and expense,
during the Term, obtain and maintain the insurance specified on Exhibit F to
this Lease.
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14. DAMAGE OR DESTRUCTION.
14.1 Notice; No Rent Abatement; Restoration Obligations. Tenant shall
promptly give Landlord Notice of any Casualty. There shall be no abatement or
reduction of Rent on account of a Casualty. Except as otherwise set forth below,
Tenant shall restore the Shoreside Complex as provided in the Joint Venture
Agreement, the Players' Lease and the Xxxxxx'x Lease unless the Partnership is
no longer the Tenant in which case Tenant shall restore the Shoreside Complex as
nearly as may be practicable to its condition, quality, and class immediately
prior to such Casualty.
14.2 Lease Termination for Casualty. This Lease shall not, so long as
no Default has occurred and is then continuing, terminate or be terminated by
reason of any Casualty unless Tenant determines not to restore the Premises
and/or Shoreside Complex or sufficient portion thereof to continue operation of
the Premises. It shall be a condition of Tenant's right to agree to a
termination of this Lease that all Prime Mortgagee(s) whose Prime Mortgage(s)
grant them the power to withhold consent to such termination shall have
consented to or joined in such termination agreement. If Tenant and the other
parties so agree, Tenant shall have the right to terminate this Lease, subject
to the Reciprocal Easement Agreement, upon the date specified in Tenant's Notice
to Landlord, whereupon Tenant shall remove Tenant's Property, demolish damaged
improvements and restore the Premises as nearly as possible to their condition
prior to construction of the Shoreside Complex and surrender the Premises to
Landlord; all casualty or hazard insurance proceeds from any insurance carried
by either Landlord or Tenant with respect to the Premises or Shoreside Complex
shall be paid to the Tenant and shall be distributed in accordance with the
terms of the Joint Venture Agreement. Notwithstanding the foregoing, if this
Lease is terminated as aforesaid within the last three (3) years of the Term
hereof such insurance proceeds shall be payable to Landlord.
15. CONDEMNATION.
15.1 Substantial Condemnation. If a Substantial Condemnation of the
Premises or the Shoreside Complex shall occur, then this Lease shall terminate
as of the effective date of such Substantial Condemnation, and the Rent shall be
apportioned accordingly. The proceeds of the Substantial Condemnation shall be
allocated between Landlord and Tenant as follows: first, Landlord shall be
entitled to receive such portion of the award, as shall equal the book value of
the Premises taken plus the present value of Percentage Rent that would have
been paid but for such termination; and second, Tenant shall be entitled to
receive the entire remaining balance of any such award or awards. All
determinations of value required by the preceding sentences shall be made as if
the Condemnation had never occurred, the Leasehold Estate had not been
terminated, and the Lease had continued for the remainder of the Term.
15.2 Insubstantial Condemnation. If an Insubstantial Condemnation shall
occur, then any award or awards shall be applied in accordance with the
provisions of the Joint Venture Agreement and after dissolution of the
Partnership or the Partnership no longer is the Tenant first to reconfiguration
and reconstruction of any remaining part of the improvements not so taken.
Tenant shall perform such repair, restoration or reconstruction in accordance
with applicable requirements of this Lease. The balance of any such award or
awards remaining
27
after the repair, restoration or reconstruction shall be distributed to Landlord
and Tenant as if they were proceeds of a Substantial Condemnation affecting only
the portion of the Premises taken.
15.3 Other Governmental Action. In the event of any action by any
Government not resulting in a Condemnation but creating a right to compensation,
such as the changing of the grade of any street, then this Lease shall continue
in full force and effect without reduction or abatement of Rent and Tenant shall
be entitled to receive the award or payment made in connection with such action.
Notwithstanding the foregoing, Landlord shall be entitled to receive such award
or payment if such right to compensation is established within the last three
(3) years of the Term.
15.4 Settlement or Compromise. Neither Landlord or Tenant shall settle
or compromise any Condemnation award without consent by the other party and by
any Subtenant whose Sublease provides for such right of consent.
15.5 Prompt Notice. If either party becomes aware of any Condemnation
or threatened or contemplated Condemnation, then such party shall promptly give
Notice thereof to the other party.
16. TRANSFERS.
16.1 By Tenant. For so long as the Partnership is Tenant and HMHC is a
partner thereof, Tenant shall only Transfer all or part of the
Leasehold Estate in accordance with the provisions of the Joint Venture
Agreement. If the Partnership is no longer Tenant, Tenant shall not Transfer,
except as is provided under Section 17.2, all or part of the Leasehold Estate
without Landlord's consent, which consent shall not be unreasonably withheld.
Tenant agrees, without limiting the exercise of Landlord's reason, that Landlord
would be reasonable in not consenting to any Transfer to a Transferee that is
(i) a Prohibited Person (Tenant), or (ii) for the period (the "Prohibition
Period") ending on the seventh anniversary of the Effective Date (as defined in
the Joint Venture Agreement) a Prohibited Person (as defined in the Joint
Venture Agreement) or (iii) fails to satisfy the criteria established in Exhibit
G. Except as is provided under 17.2, any Transfer in the nature of an assignment
shall require the assignee to assume all obligations of Tenant under this Lease
in writing in form and substance reasonably acceptable to Landlord.
16.2 By Landlord. Landlord shall not transfer the Fee Estate to a
Prohibited Person (Landlord).
17. MORTGAGES.
17.1 Landlord's Rights. Landlord shall have the right to execute and
deliver Fee Mortgage(s) at any time and from time to time during the Term,
provided that (a) the Fee Mortgage by its terms recites that it is subordinate
to this Lease and any and all estates arising from this Lease; and (b) the
proposed Fee Mortgagee is not a Prohibited Person (Landlord).
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Any Fee Mortgage entered into in violation of the preceding sentence shall be
null and void. If Landlord executes and delivers a Fee Mortgage, then Landlord
shall within ten (10) Business Days provide Tenant with a copy of such Fee
Mortgage. If a Fee Mortgagee forecloses under its Fee Mortgage or accepts a deed
in lieu of such foreclosure, then this Lease shall continue in full force and
effect and Tenant shall attorn to the holder of the Fee Estate as successor
Landlord under this Lease (subject to the limitations on such Fee Mortgagee's
liability for defaults of its Mortgagor, as are provided in this Lease). Such
attornment shall in no way diminish or impair Tenant's rights and remedies
against Landlord hereunder or require waiver of any Landlord default. Tenant
shall not be required to join in any Fee Mortgage or subordinate this Lease to
any Fee Mortgage.
17.2 Tenant's Rights. Tenant shall have the right, without Landlord's
consent, to execute and deliver Prime Mortgage(s) to any Institutional Lender(s)
encumbering this Lease and the Leasehold Estate, that is not a Prohibited Person
(Tenant). Tenant shall not grant a Prime Mortgage to any Person other than an
Institutional Lender(s) that is not a Prohibited Person (Tenant) or, during the
Prohibition Period to a Prohibited Person, without first obtaining Landlord's
prior written consent, which consent shall not unreasonably be withheld.
Landlord shall not be required to join in or "subordinate" the Fee Estate to any
Prime Mortgage.
17.3 Effect of a Prime Mortgage. Tenant's making of a Prime Mortgage
shall not be deemed to constitute an assignment or transfer of the Leasehold
Estate, nor shall any Prime Mortgagee, as such, or in the exercise of its rights
under this Lease, be deemed to be an assignee or transferee or mortgagee in
possession of the Leasehold Estate so as to require such Prime Mortgagee, as
such, to assume or otherwise be obligated to perform any of Tenant's obligations
under this Lease except when, and then only for so long as, such Prime Mortgagee
has entered into possession of the Premises in the exercise of its remedies
under its Prime Mortgage (as distinct from its rights under this Lease to cure
Defaults or exercise Mortgagee's Cure Rights). No Prime Mortgagee (or purchaser
at a foreclosure sale held pursuant to a Prime Mortgage) shall be liable under
this Lease unless and until such time as it becomes, and then only for so long
as it remains, the owner of the Leasehold Estate.
17.4 Sale and Leaseback. If Tenant sells, assigns, transfers or
otherwise conveys the Leasehold Estate to an Institutional Lender and Tenant or
an Affiliate of Tenant substantially concurrently enters into or reserves,
retains or receives a Sublease of the Premises or similar interest, then: (a)
such third party shall be deemed to be a "Prime Mortgagee" and the Sublease
shall be deemed to be a "Prime Mortgage"; and (b) such third party shall not be
deemed to have assumed or become liable under this Lease except to the extent
that such third party has exercised remedies against Tenant under Tenant's
Sublease functionally equivalent to foreclosure under a Prime Mortgage or
acceptance of an assignment in lieu thereof.
17.5 Modifications Required by Prime Mortgagee. If any Prime Mortgagee
or prospective Prime Mortgagee shall require any modification(s) of this Lease
(including clarifications and supplements to Mortgagee's Cure Rights), then
Landlord shall, at Tenant's request, promptly execute and deliver to Tenant such
instruments in recordable form effecting such modification(s) as such Prime
Mortgagee or prospective Prime Mortgagee shall require, provided that such
modification(s): (i) do not materially adversely affect any of Landlord's
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rights or materially increase any of Landlord's obligations under this Lease and
(ii) are consistent with the customary requirements of Institutional Lenders
making loans secured by similar collateral, or are required by banking,
insurance or similar laws and regulations setting forth provisions that must
appear in a lease in order for such lease to be accepted as security by the
Prime Mortgagee or prospective Prime Mortgagee requesting the change.
17.6 Further Assurances. Upon request by Tenant or by any existing or
prospective Prime Mortgagee, Landlord shall deliver to the requesting party a
separate written instrument in recordable form signed and acknowledged by
Landlord setting forth and confirming the rights of Prime Mortgagees under this
Lease.
17.7 Protection of Fee Mortgagees. If Tenant shall give Landlord any
Notice of Default, then Tenant shall simultaneously give a copy of such Notice
of Default to all Fee Mortgagee(s) provided that Tenant shall have received
Notice of their names and addresses and their Fee Mortgage(s) shall not have
been satisfied or discharged of record. Such Fee Mortgagee(s) shall be permitted
to correct or remedy Landlord's alleged breach or default within the same time
within which Landlord is permitted to do so, and with like effect as if Landlord
had done so. Tenant's failure to give Fee Mortgagee(s) the Notice required by
this Section shall not be a Default by Tenant, but no Notice by Tenant of any
default by Landlord shall be legally effective against such Fee Mortgagee(s)
unless and until Tenant shall have given such Notice to such Fee Mortgagee(s).
17.8 Foreclosure. Notwithstanding anything to the contrary in this
Lease, any sale of this Lease and of the Leasehold Estate to a Prime Mortgagee
or of the Fee Estate to a Fee Mortgagee in any proceedings for the foreclosure
of any Prime Mortgage or Fee Mortgage (as applicable), or any assignment,
transfer or conveyance to a Prime Mortgagee or a Fee Mortgagee in lieu of such
foreclosure, shall not be deemed to violate this Lease.
18. NOTICE TO LANDLORD OF PRIME MORTGAGES.
18.1 Initial Notice. If Tenant enters into any Prime Mortgage(s), then
the Prime Mortgagee(s) thereunder shall be entitled to the Prime Mortgagee
protections provided for under this Lease only from and after such time as
Tenant or such Prime Mortgagee has given Landlord Notice of the name and address
of such Prime Mortgagee, accompanied by a copy of the executed Prime Mortgage.
18.2 Change of Address. Any Prime Mortgagee shall be free to change its
name and address from time to time by Notice to Landlord. In the event of a
change of name, such Notice may be provided either by the original Prime
Mortgagee or by the Prime Mortgagee under its new name, without proof of any
kind confirming the change of name. Notice of any change of a Prime Mortgagee's
identity or address, or of a transfer of a Prime Mortgage, may be made by any
means permitted for the original Notice of the Prime Mortgagee's original name
and address.
18.3 Termination of Prime Mortgagee's Rights. If a Prime Mortgagee is
entitled to the Prime Mortgagee protections provided for under this Lease, then
such entitlement shall not
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terminate unless and until such time, if any, as the Prime Mortgage shall have
been satisfied and discharged of record as evidenced by the written report of a
title insurance company licensed in the State or notice to Landlord signed by
such Prime Mortgagee.
18.4 Transfer of Fee Estate. Notice to Landlord of the name and address
of a Prime Mortgagee shall bind any subsequent holder of the Fee Estate provided
that such Prime Mortgagee's Prime Mortgage was recorded before the deed
conveying the Fee Estate to such transferee. The foregoing shall not limit the
right of any Prime Mortgagee to give any successor Landlord Notice of the name
and address of such Prime Mortgagee, and thereby become entitled, as against
such successor Landlord, to all the rights and protections of Prime Mortgagees
under this Lease.
18.5 Landlord's Acknowledgment of Prime Mortgagee. Landlord shall, upon
request, acknowledge receipt of the name and address of any Prime Mortgagee (or
proposed Prime Mortgagee) and confirm to such Prime Mortgagee that such Prime
Mortgagee is (or would be, upon closing of its loan) a Prime Mortgagee and has
(or would have) all the rights of a Prime Mortgagee under this Lease and is (or
would be) an Institutional Lender, if applicable. Such acknowledgment shall, if
requested, be in recordable form. If Landlord reasonably determines that any
purported Prime Mortgagee does not or would not qualify as such or as a
permitted Institutional Lender, then Landlord shall promptly give Notice of such
determination to Tenant and the purported Prime Mortgagee, which Notice shall
specify the reasonable basis for such determination.
19. PROTECTION OF PRIME MORTGAGEES.
If Tenant at any time or from time to time enters into any Prime
Mortgage(s), then so long as such Prime Mortgagee(s) are entitled to the
protections provided for under this Lease:
19.1 Cancellation, Surrender, Amendment, Etc. No voluntary
cancellation, termination, surrender, acceptance of surrender, abandonment,
amendment, or modification of this Lease shall bind a Prime Mortgagee if done
without the prior consent of such Prime Mortgagee, if the Prime Mortgagee
requires such consent.
19.2 Copies of Notices. If Landlord shall give any Notice to Tenant
(including any Notice of Default and a Notice of termination of this Lease for
any reason), then Landlord shall at the same time and by the same means give a
copy of such Notice to each Prime Mortgagee. No Notice to Tenant shall be
effective unless and until so given to each Prime Mortgagee. No Event of Default
or termination of this Lease predicated upon the giving of Notice to Tenant
shall be deemed to have occurred unless like Notice shall have been so given to
each Prime Mortgagee at the same time and by the same means, which Notice shall
describe in reasonable detail the alleged Default.
19.3 Tenant's Cure Period Expiration Notice. If Tenant is in Default
under this Lease and the cure period applicable to Tenant expires without cure
of Tenant's Default, then Landlord shall promptly give Notice of such fact to
each Prime Mortgagee, which Notice
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shall describe in reasonable detail Tenant's Default (a "Tenant's Cure
Period Expiration Notice").
19.4 Right to Perform Covenants and Agreements. Any Prime Mortgagee
shall have the right, but not the obligation, to perform any obligation of
Tenant under this Lease and to remedy any Default by Tenant. Landlord shall
accept performance by or at the instigation of a Prime Mortgagee in fulfillment
of Tenant's obligations, for the account of Tenant and with the same force and
effect as if performed by Tenant. No such performance by a Prime Mortgagee shall
cause such Prime Mortgagee to become a "mortgagee in possession" or otherwise
cause such Prime Mortgagee to be deemed to be in possession of the Premises or
bound by this Lease. Notwithstanding the foregoing, in the event a leasehold
mortgagee of any Subtenant is undertaking the performance of a Non-Monetary
Default or the remedy of a Non-Monetary Default, a Prime Mortgagee shall not
have the right to undertake the same as long as such leasehold mortgagee is
pursuing the performance of such obligation or remedy of such Non-Monetary
Default with due diligence and in good faith.
19.5 Transfer of Tenant's Rights. Tenant may delegate or otherwise
transfer to a Prime Mortgagee any or all of Tenant's rights under this Lease,
but no such delegation or transfer shall bind Landlord unless and until Landlord
shall have received a copy of a written instrument effecting such delegation
accompanied by a photocopy of the Prime Mortgagee's fully executed Prime
Mortgage. Such delegation or transfer of authority may be effected by the terms
of the Prime Mortgage itself, in which case service upon Landlord of an executed
counterpart or certified copy of such Prime Mortgage, together with a written
notice specifying the provisions of such Prime Mortgage that delegate or
transfer such authority to the Prime Mortgagee, shall be sufficient to bind
Landlord to such delegation or transfer of rights.
19.6 Notice of Default and Mortgagee's Cure Rights. Upon receiving any
Notice of Default, any Prime Mortgagee shall have the same cure period granted
to Tenant under this Lease, plus the additional time provided for below, within
which to take (if such Prime Mortgagee so elects) whichever of the actions set
forth below shall apply with respect to the Default described in such Notice of
Default (such actions, "Mortgagee's Cure"; and a Prime Mortgagee's rights to
take such actions, "Mortgagee's Cure Rights"):
19.6.1 Monetary Defaults and Non-Monetary Defaults Curable Without
Obtaining Possession. In the case of a Monetary Default, or a Non-Monetary
Default that is reasonably susceptible of being cured by a Prime Mortgagee
without obtaining possession of the Premises, Prime Mortgagee shall be entitled
(but not required) to cure such Default within a cure period consisting of
Tenant's cure period under this Lease extended through the date sixty (60) days
after such Prime Mortgagee shall have received Tenant's Cure Period Expiration
Notice as to such Default. If the amount of any Monetary Default has not been
finally determined (for example, if a dispute has arisen between Landlord and
Tenant regarding the proper amount of Percentage Rent), then in place of curing
such Monetary Default a Prime Mortgagee shall be entitled instead to (a) cure
such Monetary Default to the extent the amount thereof is not in dispute; and
(b) escrow the remaining disputed portion of such Monetary Default into an
escrow account established and managed in the manner provided in Section of this
Lease. For the purposes of (b) above, in the event an escrow
32
for this purpose is established by Players under Section 3.2 of the Players'
Lease, the escrow requirement hereunder shall be deemed to be satisfied.
19.6.2 Other Non-Monetary Defaults Curable Without Obtaining
Possession. In the case of any other Non-Monetary Default (other than a Personal
Default or a Non-Monetary Default that is not reasonably susceptible of being
cured by a Prime Mortgagee without having possession of the Premises), Prime
Mortgagee shall be entitled, but not required, to: (x) within a period
consisting of Tenant's cure period for the Default, extended through the date
ninety (90) days after receipt of the Tenant's Cure Period Expiration Notice as
to such Default, advise Landlord of Prime Mortgagee's intention to take all
reasonable steps necessary to remedy such Non-Monetary Default, (y) duly
commence the cure of such Non-Monetary Default within such extended period, and
thereafter diligently prosecute to completion the remedy of such Non-Monetary
Default, subject to Unavoidable Delay, and (z) complete such remedy within a
reasonable time under the circumstances, subject to Unavoidable Delay.
19.6.3 Defaults Curable Only by Obtaining Possession and Personal
Defaults. In the case of a Non-Monetary Default that is not reasonably
susceptible of being cured by a Prime Mortgagee without obtaining possession of
the Premises (including failure to Complete the Shoreside Complex) or a Personal
Default by Tenant, Prime Mortgagee shall be entitled (but not required) to do
the following, so long as, with respect to any Defaults other than those
referred to in this Section, such Prime Mortgagee has exercised or is exercising
the applicable Mortgagee's Cure Rights as defined in this Lease:
19.6.3.1 During Cure Period. At any time during the cure period (if
any) that applies to Tenant, extended through the date ninety (90) days after
such Prime Mortgagee's receipt of the Tenant's Cure Period Expiration Notice as
to such Default, or if no cure period applies to Tenant, then within ninety (90)
days after receiving Notice of the Non-Monetary Default, Prime Mortgagee shall
be entitled to institute proceedings, and (subject to any stay in any
proceedings involving the bankruptcy, insolvency, or reorganization of Tenant or
the like, or any injunction, unless such stay or injunction is lifted),
diligently prosecute the same to completion subject to Unavoidable Delay to
obtain possession of the Premises as mortgagee (including possession by a
receiver), or acquire the Leasehold Estate by foreclosure proceedings or
otherwise, including delivery of an assignment in lieu of foreclosure (the
obtaining of such possession or the completion of such acquisition, "Control of
the Premises").
19.6.3.2 Further Cure Obligations. Upon obtaining Control of the
Premises (before or after expiration of any otherwise applicable cure period),
Prime Mortgagee shall be entitled (but not required) to proceed with diligence
and continuity to cure such Non-Monetary Defaults as are reasonably susceptible
of being cured by such Prime Mortgagee (excluding Tenant's Personal Defaults,
which Prime Mortgagee shall not be required to cure), subject to Unavoidable
Delay.
19.6.3.3 Law Limitation. If a Prime Mortgagee is a Prohibited Person
(Tenant) or is otherwise denied the authority by the Missouri Gaming Commission
acting pursuant to the Missouri Gambling Law, or pursuant to any other
applicable Law, other
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than a temporary stay of foreclosure in Tenant's Bankruptcy Proceedings, to
obtain Control of the Premises, then the extended cure periods applicable to
Non-Monetary Defaults that are not reasonably susceptible of cure without
obtaining possession of the Premises shall, from and after such date, no longer
be applicable to or benefit such Prime Mortgagee unless such Prime Mortgagee
transfers its Prime Mortgage to a Prime Mortgagee that is so qualified.
19.6.3.4 Operating Covenant Default. Notwithstanding any provision to
the contrary in Sections 19.61, 19.62 or 19.63, owing to the severe
impact that an Operating Covenant Default will have on the Shoreside Complex and
the Premises, the cure period applicable to an Operating Covenant Default shall
be limited to that provided in Section 27.1.3.
19.7 Effect of Cure. A Prime Mortgagee shall not be required to
continue to exercise Mortgagee's Cure Rights or otherwise proceed to obtain or
to exercise Control of the Premises if and when the Default that such Prime
Mortgagee was attempting to cure shall have otherwise been cured.
19.8 Quiet Enjoyment. So long as the time period for a Prime Mortgagee
to exercise Mortgagee's Cure Rights with respect to a Non-Monetary Default by
Tenant has not expired (and provided that all Monetary Defaults are cured within
Prime Mortgagee's cure period provided for under this Lease), Landlord shall not
(i) re-enter the Premises, (ii) serve a notice of election to terminate this
Lease or (iii) bring a proceeding on account of such Default to (A) dispossess
Tenant and/or other occupants of the Premises, (B) re-enter the Premises, (C)
terminate this Lease or the Leasehold Estate, or (D) otherwise exercise any
other rights or remedies under this Lease by reason of such Default. Nothing in
the Prime Mortgagee protections provided for in this Lease shall be construed to
either (a) extend the Term beyond the expiration date provided for in this Lease
that would have applied if no Default had occurred; (b) require any Prime
Mortgagee to cure any Personal Default by Tenant; (c) excuse Tenant or any
Subtenant from personal liability for the performance of Lease obligations; or
(d) prevent or delay any personal action against Tenant or any Subtenant or any
of their respective assets. If however, a Prime Mortgagee shall fail to cure a
Default within the time provided to it under this Article 19, Landlord shall be
free to exercise all remedies otherwise provided in the Lease or available at
law or equity for such Default without further notice or opportunity to Prime
Mortgagee to effect cure.
19.9 Subordinate Liens Affecting Leasehold Estate. Provided the
Prohibited Lien does not constitute a lien on the Fee Estate, a Prime Mortgagee
shall not be required to discharge a Prohibited Lien that is junior in priority
to the lien of its Prime Mortgage, except as necessary to prevent such
Prohibited Lien from foreclosing upon the Premises prior to the completion of
foreclosure of such Prime Mortgagee's Mortgage (and resulting extinguishment of
such junior lien).
19.10 Prime Mortgagee's Right to Enter Premises. Subject to constraints
of applicable Law, including, without limitation, the Missouri Gambling Law,
Landlord and Tenant authorize each Prime Mortgagee to enter the Premises as
necessary to effect Mortgagee's Cure and take any action(s) reasonably necessary
to effect Mortgagee's Cure.
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19.11 Rights of Prime Mortgagee Upon Acquiring Control. If any Prime
Mortgagee or a purchaser at a foreclosure sale shall acquire Control of the
Premises and shall cure all Monetary Defaults and proceed and continue to
exercise Mortgagee's Cure Rights and cure all other Defaults in accordance with
the provisions of this Lease, then (i) any Personal Defaults by Tenant shall not
be asserted against such Prime Mortgagee or any or its direct or remote
permitted Transferees; and (ii) Landlord shall recognize any purchaser of the
Leasehold Estate pursuant to a foreclosure sale under a Prime Mortgage, or any
transferee of the Leasehold Estate under an assignment in lieu of foreclosure,
or, if the Prime Mortgagee should be such purchaser or assignee, the Prime
Mortgagee and any assignee of the Prime Mortgagee, provided such Person (a) is
not a Prohibited Person (Tenant); and (b) assumes in writing all obligations
under this Lease.
20. PRIME MORTGAGEE'S RIGHT TO A NEW LEASE.
20.1 New Lease. If this Lease shall terminate before its stated
expiration date for any reason other than the failure of a Prime Mortgagee to
effect cure of any Default within the cure periods provided in this Lease or
pursuant to the provisions of Article and Article hereof, then (in addition to
any other or previous Notice required to be given by Landlord to a Prime
Mortgagee) Landlord shall, within ten (10) Business Days, give Notice of such
termination to each Prime Mortgagee entitled to Prime Mortgagee protections
under this Lease. Landlord shall, upon a Prime Mortgagee's request given within
sixty (60) days after such Prime Mortgagee's receipt of such notice, enter into
(and if Landlord fails to do so, shall be deemed to have entered into) a new
lease of the Premises, effective as of the Termination Date, for the remainder
of the Term on the same terms and provisions contained in this Lease, but
excluding any requirements that have already been performed or no longer apply
(a "New Lease"), provided such Prime Mortgagee shall, at the time of execution
and delivery of such New Lease, pay to Landlord any and all sums then due under
this Lease as if this Lease had not been terminated and cure all Defaults other
than Personal Defaults of the Tenant. If a Prime Mortgagee enters into a New
Lease, then such Prime Mortgagee shall pay all reasonable expenses, including
reasonable attorneys' fees, court costs and disbursements, incurred by Landlord
in connection with Tenant's Default and the termination of this Lease, the
recovery of possession of the Premises, and the preparation, execution and
delivery of the New Lease. The following additional provisions shall apply to
any New Lease:
20.2 Form and Priority. Any New Lease shall be in recordable form. Such
New Lease shall not be subject to any rights, liens, or interests other than
those to which this Lease was subject at the time of its termination or any
priority liens established in Tenant's Bankruptcy Proceedings. The provisions of
the immediately preceding sentence shall be self- executing. Landlord shall, if
requested, execute and deliver such corporate resolutions, partnership
certificates and other documents as shall be reasonably necessary to enable the
tenant under such New Lease (the "New Tenant") to obtain title insurance with
respect to the New Lease, at such New Tenant's expense.
20.3 Pendency of Dispute. If Landlord and the New Tenant disagree
regarding any payment due Landlord in connection with execution of a New Lease,
then New Tenant (if an Institutional Lender or a Prime Mortgagee's Agent) shall
be deemed to have performed its
35
payment obligation if such New Tenant: (a) pays Landlord the full amount not in
controversy and (b) escrows any additional sum claimed to be due by Landlord in
an escrow account established and governed in the manner established in Section
3.2 hereof. The parties shall cooperate to determine any disputed
amount promptly in accordance with the terms of this Lease or the New Lease,
whichever applies.
20.4 Assignment of Certain Items. Upon execution of a New Lease,
Landlord shall assign to New Tenant all of Landlord's right, title and interest
in and to: (a) all moneys (including insurance proceeds and Condemnation
awards), if any, then held by, or payable to, Landlord that Tenant would have
been entitled to receive but for termination this Lease; and (b) all Subleases,
subject to Landlord's assignment of rights under the Players' Lease.
20.5 Preservation of Subleases. Between the Termination Date and the
date of execution and delivery of a New Lease, if a Prime Mortgagee shall have
requested a New Lease and be entitled to a New Lease under this Article 20,
Landlord shall not cancel any Sublease or accept any cancellation, termination
or surrender of a Sublease (unless such termination shall be effected as a
matter of law upon the termination of this Lease, in which case such Sublease
shall, at New Tenant's option, be reinstated upon execution of the New Lease)
without the consent of such Prime Mortgagee.
21. INTERACTION OF MORTGAGES WITH OTHER ESTATES AND PARTIES.
21.1 Prime Mortgages and Fee Mortgages. A Prime Mortgage shall not
encumber or in any other way affect the Fee Estate or affect, limit or restrict
Landlord's rights and remedies under this Lease except as expressly provided in
this Lease. Any Fee Mortgage made by Landlord at any time shall be subject to
this Lease. Any Fee Mortgagee, and in the event of a foreclosure of a Fee
Mortgage or delivery of a deed in lieu of such foreclosure, the Fee Mortgagee or
grantee or successful bidder at the foreclosure sale, shall succeed only to the
Fee Estate, subject to this Lease (whether this Lease [or a New Lease in
substitution therefor] is at the time held by Tenant or by a Prime Mortgagee as
New Tenant or pursuant to foreclosure, delivery of an assignment in lieu of
foreclosure, or otherwise). Upon a foreclosure under a Prime Mortgage or
delivery of an assignment of this Lease in lieu of foreclosure under a Prime
Mortgage, the Prime Mortgagee shall succeed only to the Leasehold Estate, and
any such foreclosure or assignment in lieu of foreclosure shall not affect the
Fee Estate (subject to this Lease) or the rights of any Fee Mortgagees as
against Landlord or the Fee Estate (which shall in all events remain subject to
this Lease).
21.2 Prime Mortgagee's Agent. Any Prime Mortgagee that is an
Institutional Lender may exercise its rights (including Mortgagee's Cure Rights
and the right to obtain a New Lease) under this Lease, or perform any action
permitted to be taken by a Prime Mortgagee under this Lease, through a Prime
Mortgagee's Agent. A Prime Mortgagee's Agent shall be entitled to all the
rights, privileges, and protections of Prime Mortgagees under this Lease.
21.3 Interaction Between Lease and Prime Mortgage. If a Prime
Mortgagee's Prime Mortgage limits such Prime Mortgagee's exercise of any rights
and protections provided for in
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this Lease, then as between Tenant and such Prime Mortgagee the terms of such
Prime Mortgage shall govern. Tenant's default as mortgagor under a Prime
Mortgage shall not constitute a Default under this Lease except to the extent
that Tenant's actions or failure to act in and of itself constitutes a Default
under this Lease.
21.4 Conflicts Between Mortgagees. If more than one Prime Mortgagee
desires to exercise Mortgagee's Cure Rights or the right to obtain a New Lease,
or if more than one Prime Mortgagee or more than one Fee Mortgagee desires to
exercise any other right or privilege provided for Mortgagees under this Lease,
then the party against whom such rights or privileges are to be exercised shall
be required to recognize either: (a) only the Fee Mortgagee or Prime Mortgagee,
as applicable, that desires to exercise such right or privilege and whose Fee
Mortgage or Prime Mortgage, as applicable, is most senior in lien (as against
other Mortgages of its type [Fee or Prime, as applicable]) or (b) such other Fee
Mortgagee or Prime Mortgagee, as applicable, as has been designated in writing
by all Fee Mortgagees or Prime Mortgagees, as applicable, to exercise such right
or privilege. Priority of Mortgages shall be conclusively evidenced either by
(a) the report or certificate of a title insurance company licensed to do
business in the State; or (b) joint written instructions of all Prime Mortgagees
and/or fee mortgagees, as applicable; or (c) order of court of competent
jurisdiction.
21.5 No Merger. Without the written consent of Landlord, Tenant, and
all Mortgagees, the Fee Estate and the Leasehold Estate shall remain distinct
and separate estates and shall not merge, notwithstanding the acquisition of
both the Fee Estate and the Leasehold Estate by Landlord, Tenant, any Mortgagee,
or a third party, whether by purchase or otherwise.
22. BANKRUPTCY.
22.1 Affecting Tenant. If Tenant (as debtor in possession) or a trustee
in bankruptcy for Tenant rejects this Lease in connection with any proceeding
involving Tenant under the United States Bankruptcy Code or any similar state or
federal statute for the relief of debtors (a "Bankruptcy Proceeding"), then
Landlord agrees for the benefit of each and every Prime Mortgagee that such
rejection shall be deemed Tenant's assignment of the Lease and the Leasehold
Estate to Tenant's Prime Mortgagee(s), in the nature of an assignment in lieu of
foreclosure. Upon such deemed assignment, this Lease shall not terminate and
each Prime Mortgagee shall continue to have all the rights of a Prime Mortgagee
under this Lease as if the Bankruptcy Proceeding had not occurred, unless such
Prime Mortgagee shall reject such deemed assignment by Notice to Landlord within
thirty (30) days after receiving Notice of the rejection of this Lease in
Bankruptcy Proceedings. If any court of competent jurisdiction shall determine
that this Lease shall have been terminated notwithstanding the deemed assignment
provided for in place of rejection of this Lease, then Tenant's Prime Mortgagees
shall continue to be entitled to a New Lease as provided in Article 20 of this
Lease.
In the event of an assignment by operation of law or otherwise in a
Bankruptcy Proceeding, if Landlord does not or is not permitted to terminate
this Lease, the assignee shall provide Landlord with adequate assurance of
future performance of all of the terms, covenants
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and conditions of this Lease, which shall include but not be limited to,
assumption of all of the terms, covenants and conditions of this Lease by the
assignee and the making by the assignee of the following express covenants to
the Landlord:
(a) the assignee has sufficient capital to pay the Rent and
other amounts due under the Lease for the entire Term or actually pays the
Default Substitute Percentage Rent or the Approved Substitute Rent, as the case
may be, and performs the other obligations of Tenant under this Lease;
(b) the assignee either (i) holds all Government licenses,
permits and approvals necessary to operate the Premises in accordance with this
Lease; or (ii) is diligently pursuing the obtaining of such licenses, permits
and approvals, none of which have been permanently denied; and
(c) the assignee is not a Prohibited Person (Tenant).
22.2 Affecting Landlord. If Landlord (as debtor in possession) or a
trustee in bankruptcy for Landlord rejects this Lease in connection with any
Bankruptcy Proceeding involving Landlord, then:
22.2.1 Tenant's Election. Tenant shall not have the right to elect to
treat this Lease as terminated except with the prior written consent of each and
every Prime Mortgagee whose recorded Prime Mortgage requires such consent by the
applicable Prime Mortgagee.
22.2.2 Continuation of Lease. If Tenant does not properly elect to
treat this Lease as terminated, then this Lease shall continue in effect without
change upon all the same terms and conditions as are set forth in this Lease,
including provisions relating to Rent and New Leases. Thereafter, Tenant and its
successors (including Prime Mortgagees) shall be entitled to offset against Rent
any damages arising from such rejection, including but not limited to attorneys'
fees and expenses reasonably incurred in connection with the rejection of this
Lease and adjustment of the parties' subsequent rights and duties among
themselves, in accordance with applicable law governing the Bankruptcy
Proceeding, and any such offset properly made shall not be a Default. If Tenant
claims a greater offset than the offset to which Tenant is lawfully entitled,
then the taking of such excessive offset by Tenant shall constitute a Monetary
Default as to which Tenant and Prime Mortgagees shall be entitled to Notice and
opportunity to cure as provided in this Lease.
22.2.3 Assumption of Lease. If Landlord (as debtor in possession) or a
trustee in bankruptcy for Landlord moves to assume this Lease or provides for
assumption of this Lease in any Bankruptcy Proceeding involving Landlord, Tenant
shall, in addition to all its other rights and remedies, be compensated promptly
for all costs and expenses (including but not limited to attorneys' fees and
expenses) resulting from or reasonably incurred in connection with the
proceedings involving assumption (whether or not such assumption is granted or
confirmed), any subsequent proceedings to assign the Lease to another or to
reject the Lease, enforcement of rights to cure and to compensation for damages
resulting from a
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breach of the Lease, and adjustment of the parties' subsequent rights
and duties among themselves.
22.2.4 Continuation of Prime Mortgages. The lien of any Prime Mortgage
that was in effect before the rejection of this Lease shall extend to Tenant's
continuing possessory rights with respect to the Premises following such
rejection, with the same priority as it would have enjoyed had such rejection
not taken place.
23. QUIET ENJOYMENT.
There shall be no express or implied covenant of quiet enjoyment by
Landlord under this Lease, except for acts or omissions of Landlord itself.
24. FORCE MAJEURE.
Tenant's obligation to perform or observe any term, condition, covenant
or agreement on Tenant's part to be performed or observed pursuant to this Lease
(other than Tenant's obligation to pay any item of Rent when due) shall be
suspended during such time as such performance or observance is prevented or
delayed by reason of any Unavoidable Delay.
25. ACCESS.
Landlord and its agents, representatives and designees shall have the
right to enter the Premises and the Shoreside Complex upon reasonable notice to
Tenant during regular business hours, and in accordance with Tenant's or
Subtenant's reasonable instructions, for the purpose of curing Tenant's or
Subtenant's Defaults (provided that Landlord shall have given Tenant or
Subtenant prior Notice of such Default in accordance with this Lease) or for
purposes relating to the mortgaging or sale of the Fee Estate in compliance with
this Lease. In entering the Premises or the Shoreside Complex pursuant to this
Article, Landlord and its authorized individuals shall not unreasonably
interfere with the conduct of operations thereon by Tenant or any Subtenant and
shall comply with Tenant's and such Subtenant's reasonable security procedures.
26. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.
26.1 Landlord's Option. If Tenant shall at any time fail to make when
required under the Lease any payment or perform any other act on its part to be
made or performed, then Landlord, after ten (10) Business Days' Notice to
Tenant, or with such notice (if any) as is reasonably practicable under the
circumstances, in case of an emergency, and without waiving or releasing Tenant
from any obligation of Tenant or from any default by Tenant and without waiving
Landlord's right to take such action as may be permissible under this Lease as a
result of such Default, may (but shall be under no obligation to) make such
payment or perform such act on Tenant's part to be made or performed pursuant to
this Lease. Landlord may enter upon the Premises for such purpose, and take all
such action on the Premises, as
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may be reasonably necessary under the circumstances, but in doing so shall not
interfere with the conduct of operations on the Premises by Tenant or any
Subtenant and shall comply with Tenant's or Subtenant's reasonable security
procedures.
26.2 Reimbursement by Tenant. All reasonable sums paid by Landlord and
all costs and expenses reasonably incurred by Landlord, together with reasonable
attorneys' fees, in connection with the exercise of Landlord's cure rights under
Section 26.1, shall constitute Additional Rent. Tenant shall pay such Additional
Rent together with interest thereon at the Default Rate within thirty (30) days
after Landlord's demand accompanied by evidence reasonably establishing such
costs and expenses in accordance with this Lease.
27. DEFAULT BY TENANT; REMEDIES.
27.1 Definition of Event of Defaults. The term "Event of Default" shall
mean and refer to the occurrence of any one or more of the following
circumstances:
27.1.1 Players' Lease Default. If the occupant of Players' Premises
shall have failed to pay Percentage Rent or Substitute Percentage Rent as and
when due in accordance with this Lease, or any other Event of Default (as
defined in the Players Lease) shall occur under the Players Lease.
27.1.2 Monetary Default. If any other Monetary Default shall occur and
the Monetary Default shall continue for sixty (60) days after Landlord has given
Tenant Notice of such Monetary Default, specifying in reasonable detail the
amount of money required to be paid by Tenant and the nature of such payment,
provided however that if Tenant shall fail on more than two occasions in any
Percentage Rent Year to make payment of or cause the occupant of Players'
Premises to make payment of Percentage Rent before Landlord gives such Notice
(whether or not such payment was made within the aforesaid cure period), the
notice and cure period for subsequent payments due hereunder within such
Percentage Rent Year and the next Succeeding Percentage Rent Year shall be
shortened to ten (10) days.
27.1.3 Operating Covenant Defaults. If Tenant, or the occupant
of Players' Premises breaches the provisions of Section 7.2 hereof
voluntarily (a "Voluntary Operating Covenant Default") or if Tenant or such
occupant is denied (a "Governmental Denial") the necessary Government licenses,
permits, certificates or approvals (collectively "Licenses and Approvals") of
the Missouri Gaming Commission or any other Government agency to operate the
Players Premises and such denial is not rescinded or revoked within seventy-two
(72) hours or, if any application for Licenses and Approvals is rejected or if
any Licenses and Approvals are rescinded, revoked or suspended for more than
seventy-two (72) hours (an "Involuntary Operating Covenant Default") and in the
case of a Voluntary Operating Covenant Default such Voluntary Operating Covenant
Default is not remedied within thirty (30) days after Landlord has given Tenant
notice of such Voluntary Operating Covenant Default in reasonable detail (the
"Voluntary Operating Covenant Cure Period") and in the case of an Involuntary
Operating Covenant Default such Involuntary Operating Covenant Default is not
remedied within the "Appeal Period" (hereinafter defined) (the "Involuntary
Operating Covenant Cure Period") provided in the case of a Voluntary Operating
Covenant Default or
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an Involuntary Operating Covenant Default Tenant or such occupant is paying
Landlord Default Substitute Percentage Rent during the Voluntary Operating
Covenant Cure Period or the Involuntary Operating Covenant Cure Period, as the
case may be, subject to the right of a Prime Mortgagee or leasehold mortgage of
such occupant to extend the Voluntary Operating Covenant Cure Period or
Involuntary Operating Covenant Cure Period, as the case may be, in order to
substitute another operator of the Premises, so long as such Mortgagee pays
Landlord Default Substitute Percentage Rent and performs the other obligations
under this Lease or the applicable Sublease. For purposes hereof, the "Appeal
Period" shall be the period during which Tenant or such occupant in good faith
and with due diligence pursues a final non-appealable determination concerning
the validity of a Governmental Denial. In the event there is an Operating
Covenant Default, Tenant hereby assigns to Landlord all of Tenant's rights to
enforce like obligations under Section 29.1.3. of the Players' Lease and any
other Sublease of Players' Premises in Landlord's own name or in the name of
Tenant and all other remedies of Tenant upon the occurrence of an Operating
Covenant Default afforded Tenant under the Players' Lease. A Voluntary Operating
Covenant Default and an Involuntary Operating Covenant Default are collectively
referred to herein as an "Operating Covenant Default".
27.1.4 Non-Monetary Default. If any other Non-Monetary Default shall
occur and the Non-Monetary Default shall continue and not be remedied by Tenant
within ninety (90) days after Landlord shall have delivered to Tenant a Notice
describing the same in reasonable detail, or, in the case of a Non-Monetary
Default that cannot with due diligence be cured within ninety (90) days from
such Notice, if Tenant shall not (x) within ninety (90) days from Landlord's
Notice advise Landlord of Tenant's intention to take all reasonable steps
necessary to remedy such Non-Monetary Default, (y) duly commence the cure of
such Non-Monetary Default within such period, and then diligently prosecute to
completion the remedy of the Non-Monetary Default and (z) complete such remedy
within a reasonable time under the circumstances.
27.1.5 Reciprocal Easement Default. An Event of Default (as defined in
the Reciprocal Easement Agreement) shall occur under the Reciprocal Easement
Agreement.
27.2 Remedies. Subject to the provisions of Section 27.2.1 hereof, upon
occurrence of an Event of Default, Landlord may exercise any or all of the
following remedies, and any other remedies provided for under this Lease or
available by law, all of which shall be cumulative and all of which shall be
subject to the rights of Prime Mortgagees under this Lease: (a) Landlord shall
have the right (unless such Event of Default is caused solely by the acts or
omissions of HMHC) to proceed by appropriate judicial proceedings, either at law
or in equity, to enforce performance or observance by Tenant of the applicable
provisions of this Lease and/or to recover damages against Tenant for breach of
this Lease; and/or (b) Landlord may give Tenant a notice of intention to end the
Term at the expiration of thirty (30) days from the date of service of such
notice of intention. Upon the expiration of such thirty (30) day period, unless
Tenant shall have cured the Event of Default that gave rise to such notice, this
Lease, the Leasehold Estate and the Term shall terminate and Landlord shall
retake possession of the Premises and all rights of Tenant shall come to an end
with the same effect as if that day were the expiration date of this Lease.
Tenant shall peaceably and quietly yield up and surrender to Landlord the
Premises.
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27.2.1 Assignment of Remedies. Notwithstanding any provision to the
contrary in this Section 27.2 or elsewhere in this Lease, until such time as the
Players' Lease is terminated, Landlord's sole remedy upon the occurrence of (a)
a Monetary Default by Tenant relating to the payment of Percentage Rent or
Substitute Percentage Rent and/or (b) an Operating Covenant Default, shall be to
pursue Tenant's remedies under the Players' Lease or any other Sublease of
Players' Premises, which remedies Tenant hereby assigns to Landlord.
27.3 Re-entry. Upon the occurrence of an Event of Default, this Lease,
at the option of Landlord, shall be terminated and Landlord or Landlord's agents
and employees may (to the extent permitted by law and subject to the rights of
Prime Mortgagees under this Lease) re-enter the Premises, or any part of the
Premises, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force (to the extent permitted by Laws of the State) or
otherwise, without being liable to indictment, prosecution or damages, and may
repossess the same, and may remove any individual from the Premises, all so that
Landlord may have, hold and enjoy the Premises.
27.4 Damages. In addition to Landlord's other remedies hereunder, if
Landlord terminates this Lease by reason of an Event of Default, Tenant shall be
liable to Landlord for an amount equal to the excess of (A) the present value as
of the date of termination of all installments of Rent through the end of the
Term [the amount of Rent to be based upon the average annual Rent paid hereunder
for the immediately preceding two (2) years, or if less than two (2) years of
the Term has elapsed, based upon the amount of Four Million Five Hundred
Thousand Dollars ($4,500,000.00) per year], such present value to be computed
using a reasonable per annum discount rate, compounded semiannually, from the
respective dates upon which such Rent would be paid, over (B) the present value
as of such termination date of the fair market rental value of the Premises
through the end of the Term (such fair market rental value shall be reduced to
the extent that Tenant and/or any Subtenant fails to surrender its applicable
gaming license to the Missouri Gaming Commission and fails to cooperate with
Landlord's application to obtain a new gaming license on termination and
thereupon a non-gaming use of the Premises [or portion thereof for which a
gaming license is not so surrendered] shall be assumed). Such fair market rental
value of the Premises is to be determined by mutual agreement of Landlord and
Tenant or, if they cannot agree within ten (10) days of such notice, by an
arbitration as provided herein. Such present value is to be computed using a
reasonable per annum discount rate mutually agreed upon by Landlord and Tenant
or, if they cannot agree within ten (10) days, by arbitration as provided
herein, compounded semiannually, from the respective dates upon which such Rent
would be paid. The above damages shall be reduced by any damages paid to
Landlord pursuant to the provisions of the Players' Lease. Landlord shall have
no general duty to mitigate the aforesaid damages, but Landlord shall be
required to negotiate in good faith with a proposed successor to Tenant which
meets the criteria set forth on Exhibit G hereto and which is willing to assume
all obligations of Tenant or Tenant's Affiliate under the Joint Venture
Agreement and to execute and deliver to Landlord a Lease which is in form
identical to this Lease including, without limitation, the same Percentage Rent
payable hereunder with the exception of modifications necessitated by the change
in the identity of Tenant.
27.5 Injunctive Relief. In the event of any breach or threatened breach
by Tenant of any Lease covenants or agreements, Landlord shall be entitled to
enjoin such breach or
42
threatened breach. The provisions of this Section shall be construed so as to be
consistent with the Law of the State so that remedies of Landlord described in
this Lease shall be available to the full extent but only to the extent that
they are not invalid or unenforceable under the Law of the State.
27.6 Pending Dispute Regarding Event of Default. Notwithstanding
anything to the contrary in the foregoing remedies provided for Landlord under
this Lease, if Tenant shall have given Landlord Notice before termination of
this Lease that Tenant contests Landlord's determination that an Event of
Default has occurred, then Landlord shall not disturb Tenant's possession of the
Premises, Tenant shall be entitled to remain in possession of the Premises under
this Lease, and the Term shall be deemed to continue, so long as Tenant: (a)
continues to pay Landlord the Rent (and to escrow the disputed portion of any
Rent into an escrow account established and managed in the manner set
forth in Section 3.2); and (b) continues to perform such other obligations under
this Lease as are not in dispute; and (c) is prosecuting appropriate judicial
proceedings to prevent Landlord from terminating this Lease. If the Subtenant
occupying Players' Premises is contesting the same event under the Players'
Lease or any other Sublease of Players' Premises then Tenant shall not be
entitled to independently invoke this Section, and the outcome of such contest
shall be determinative of rights under this Lease.
27.7 Arbitration. Upon the occurrence of a Non-Monetary Default or a
Monetary Default, the amount of which is disputed by Tenant, Tenant may, by
written notice to Landlord, elect an arbitration which shall be conducted in
accordance with the following procedures:
27.7.1 Voluntary Appointment. Landlord and Tenant shall appoint a
single Qualified Arbitrator who is not affiliated with either Landlord or
Tenant. Such Qualified Arbitrator shall render a decision within thirty (30)
days of such appointment.
27.7.2 Appointment by Arbitrators. If Landlord and Tenant cannot agree
on a single Qualified Arbitrator within twenty (20) days after an election to
submit the matter to arbitration, then Landlord and Tenant shall each appoint
one Qualified Arbitrator within ten (10) days following such twenty (20) day
period. The two appointed Qualified Arbitrators shall within ten (10) days of
such referral appoint a third Qualified Arbitrator, and if such Qualified
Arbitrators are not able to agree on such third Qualified Arbitrator, then, on
five (5) days' notice in writing to the other Qualified Arbitrator, either
Qualified Arbitrator shall apply to the branch of the American Arbitration
Association in St. Louis, Missouri to designate and appoint such third Qualified
Arbitrator. The three Qualified Arbitrators shall reach a decision within twenty
(20) days after the appointment of the third Qualified Arbitrator.
27.7.3 Failure to Appoint. If either Landlord or Tenant fails to
appoint a Qualified Arbitrator, then the single Qualified Arbitrator designated
by the other party shall act as the sole Qualified Arbitrator and shall be
deemed to be the unanimously approved Qualified Arbitrator to resolve such
dispute. The decision and award of such sole Qualified Arbitrator shall be
binding upon the parties.
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27.7.4 Fees and Expenses. The fees and expenses of the Qualified
Arbitrators shall be paid by the party whose position is not adopted by the
Qualified Arbitrators. The award of any Qualified Arbitrators made in accordance
with this Section shall be binding on the parties and enforceable in any court
of competent jurisdiction.
27.7.5 Proceedings. All proceedings by the Qualified Arbitrators shall
be conducted in accordance with the Uniform Arbitration Act as enacted in the
State of Missouri, except to the extent the provisions of such Act are modified
by this Lease or the mutual agreement of the parties. Unless otherwise agreed,
all arbitration proceedings shall be conducted in St. Louis, Missouri.
27.7.6 Arbitration Decisions. In all arbitration proceedings submitted
to any Qualified Arbitrators, the Qualified Arbitrators shall be required to
agree upon and approve the substantive position advocated by one party with
respect to each disputed item. The Qualified Arbitrator(s) shall exclusively
determine whether a particular dispute falls within the scope of their
authority.
There shall be no right to submit a matter to arbitration under this
Lease in the event such matter has been or is being arbitrated in accordance
with the terms of the Joint Venture Agreement or the Players' Lease, in which
case, the outcome of such other arbitration shall be determinative of rights
under this Lease.
28. TERMINATION.
28.1 Rights on Termination. Upon the Termination Date, all improvements
constituting part of or located on the Premises [other than, subject to the
provisions of Section hereof, (i) the portion of any signs bearing any
Subtenant's trademarks, servicemarks or other marks owned by a Subtenant, which
such Subtenant may remove within thirty (30) days after the Termination Date;
(ii) Tenant's Property that is not affixed to the Premises; and (iii) Gaming
Equipment shall become Landlord's property unless Landlord requires the
Restoration (hereinafter defined) as hereinafter provided and Landlord and
Tenant shall have the rights and obligations set forth in this Article.
28.2 Possession. Unless Landlord elects for Tenant to undertake the
Restoration, Tenant shall deliver to Landlord possession of the Premises, in its
then current condition and state of repair, unless the Termination Date occurs
by reason of Casualty or Condemnation whereupon Tenant shall deliver to Landlord
possession of the Premises or proceeds of Condemnation, as the case may be, in
accordance with the provisions of Section 14.2 or Section 15.1 hereof, as
applicable.
28.3 Documentation. If possession of the Premises and/or Shoreside
Complex are being returned to Landlord without the Restoration, Tenant shall
deliver to Landlord copies or originals of all contracts which shall be
terminated at its sole cost and expense on the Termination Date unless otherwise
elected, maintenance and service records, plans, specifications, manuals and all
other papers and documents that may be necessary or appropriate for the proper
operation and management of the Shoreside Complex.
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28.4 Miscellaneous Assignments. If possession of the Premises and/or
Shoreside Complex are being returned to Landlord without the Restoration, Tenant
shall assign to Landlord, without recourse, all assignable licenses and permits
affecting the Premises and all assignable contracts, warranties and guarantees
then in effect relating to the Shoreside Complex.
28.5 Termination of Memorandum of Lease. If the parties shall have
entered into and recorded a Memorandum of Lease, then they shall enter into a
memorandum, in recordable form reasonably satisfactory to both parties,
terminating the Memorandum of Lease.
28.6 Restoration. If Landlord so elects, Landlord may require Tenant
(to such extent as Landlord may reasonably require) as of the Termination Date,
at Tenant's sole cost and expense, to demolish all improvements on the Premises
and restore the Premises as nearly as possible to their condition prior to the
construction of the Shoreside Complex (the "Restoration").
28.7 Personal Property and Equipment. Even if Tenant is not required to
effect the Restoration, Tenant shall remove or cause Subtenants to remove all
Tenant's Property that is not attached to the Premises. Landlord shall be
entitled at its option to assume Tenant's or Subtenant's rights under any leases
of Gaming Equipment (which Tenant hereby agrees to assign or caused to be
assigned to Landlord). Landlord shall also be entitled at its option to purchase
any personal property or equipment that Tenant and/or Subtenants are required to
remove pursuant to this Section (other than personal property or equipment
bearing any trademark, service xxxx or other xxxx owned by a Subtenant or any
other affiliate or subsidiary of Subtenant) at its then fair market value,
payment to be made by certified check on the Termination Date. Tenant's Property
not removed from the Premises at or within thirty (30) days after the
Termination Date shall be deemed abandoned and become property of Landlord,
without the necessity of any payment from Landlord, and Tenant shall remain
liable for the cost of removal of such property and for the cost of repair of
any damage to the Shoreside Complex occasioned thereby.
29. NO BROKER.
Neither Landlord nor Tenant has engaged the services of a broker,
finder or agent in this transaction as it relates to the Premises, and neither
has employed, nor authorized any other Person to act in such capacity. Landlord
and Tenant each hereby agree to indemnify and hold the other harmless from and
against any and all claims, losses, liabilities, damages or expenses (including,
without limitation, reasonable attorneys' fees, costs and disbursements incurred
in the enforcement of this indemnity) suffered or incurred by the other party as
a result of a claim brought by a Person engaged or claiming to be engaged as a
finder, broker or agent by the indemnifying party. The foregoing representation,
warranty and indemnity shall survive the expiration or earlier termination of
this Lease.
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30. WAIVERS.
30.1 No Waiver by Silence. Failure to complain of any act or omission
shall not be deemed a waiver of any of rights under this Lease. No waiver,
express or implied, of any breach of any provision of this Lease shall be
effective unless set forth in writing signed by the waiving party or be a waiver
of a breach of any other provision of this Lease or a consent to any subsequent
breach of the same or any other provision. No acceptance by Landlord of any
partial payment shall constitute an accord or satisfaction but shall only be
deemed a part payment on account.
30.2 Waiver of Trial by Jury. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE
OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, INCLUDING ANY CLAIM OF INJURY OR DAMAGE, AND ANY EMERGENCY OR
STATUTORY REMEDY WITH RESPECT TO THE FOREGOING.
31. MEMORANDUM OF LEASE.
The parties shall, contemporaneously herewith, execute, acknowledge and
deliver duplicate originals of a recordable memorandum of lease (the "Memorandum
of Lease") in the form of Exhibit H.
32. ESTOPPEL CERTIFICATES.
32.1 Rights of Each Party. Upon not less than ten (10) Business Days'
prior written request (an "Estoppel Certificate Request") by either party to
this Lease (the "Requesting Party"), the other party to this Lease (the
"Certifying Party") shall execute, acknowledge and deliver to the Requesting
Party (or directly to a third party whose name and address are provided by the
requesting party [a "Third Party"]) up to four original counterparts of an
Estoppel Certificate. An Estoppel Certificate Request shall not be valid unless
accompanied by a certificate by the Requesting Party that to the best of the
Requesting Party's knowledge the proposed form of Estoppel Certificate is
substantially correct and omits no material information required to be disclosed
in such Estoppel Certificate. Any Estoppel Certificate may be relied upon by any
Third Party to whom an Estoppel Certificate is required to be directed.
33. MISCELLANEOUS.
33.1 Reasonableness. Wherever this Lease states that approval by either
party shall not be unreasonably withheld: (a) such approval shall not be
unreasonably delayed or conditioned; and (b) no withholding of approval shall be
deemed reasonable unless withheld by Notice specifying reasonable grounds, in
reasonable detail, for such withholding of
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approval. Where reasonableness is not specified as the standard for
action, a party may act in its sole discretion.
33.2 Documents in Recordable Form. Wherever this Lease requires either
party to deliver to the other a document in recordable form, both parties shall
be deemed to have consented to the recording of such document, at the sole
expense of the party that elects to record it.
33.3 Further Assurances. Each party agrees to execute and deliver such
further documents, and perform such further acts, as may be reasonably necessary
to achieve the intent of the parties with respect to Tenant's leasing of the
Premises from Landlord, as set forth in this Lease. Without limiting the
generality of this Section, upon request at any time or from time to time either
party shall execute and deliver to the other: (a) additional counterparts of
this Lease or any related documents, provided such additional counterparts are
prepared at the expense of the party requesting them; and (b) such documentation
as any title insurance company shall require to evidence such matters as due
formation, authorization and execution of the Lease on the part of the party of
whom the request is made.
33.4 No Third Party Beneficiaries. Nothing in this Lease shall be
deemed to confer upon any Person (other than Landlord, Tenant, Prime Mortgagees
or Fee Mortgagees) any right to insist upon, or to enforce against Landlord or
Tenant, the performance or observance by either party of its obligations under
this Lease.
33.5 Interpretation. No inference in favor of or against any party
shall be drawn from the fact that such party has drafted any portion of this
Lease. The parties have both participated substantially in the negotiation,
drafting and revision of this Lease with representation by counsel and such
other advisers as they have deemed appropriate. Material in brackets constitutes
parenthetical material within other parenthetical material and is intended to be
part of this Lease.
33.6 Captions. The captions of this Lease are for convenience and
reference only and in no way affect this Lease.
33.7 Cumulative Remedies. Except when expressly otherwise provided, the
remedies to which either party may resort under this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of redress to
which such party may lawfully be entitled in the event of any breach or
threatened breach by the other party of any provision of this Lease.
33.8 Right of Injunction. In the event of a breach by either party of
any of its obligations under this Lease, the other party shall have the right to
obtain an injunction, in addition to the rights and remedies provided for under
this Lease.
33.9 Entire Agreement. This Lease contains all the terms, covenants and
conditions relating to Tenant's leasing of the Premises.
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33.10 Amendment. Any modification or amendment to this Lease must be in
writing signed by Landlord and Tenant and consented to by any Prime Mortgagee(s)
and Fee Mortgagee(s) having the right to consent to amendments or modifications
of this Lease pursuant to the terms of this Lease. Modifications or amendments
of this Lease executed by either party may be exchanged and delivered by
facsimile transmission, and shall be effective upon such transmission. The
parties shall promptly exchange original signature counterparts of amendments
executed by either party and initially exchanged and delivered by facsimile
transmission.
33.11 Partial Invalidity. If any term or provision of this Lease or the
application of such term or provision to any party or circumstance shall to any
extent be invalid or unenforceable, then the remainder of this Lease, or the
application of such term or provision to Persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected by such
invalidity, and each remaining term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
33.12 Successors and Assigns. This Lease shall bind and benefit
Landlord and Tenant and their successors and assigns, but the foregoing shall
not limit or supersede any Transfer restrictions contained in this Lease.
33.13 Governing Law. This Lease and its interpretation and performance
shall be governed, construed and regulated by the laws of the State, without
regard to principles of conflict of laws.
33.14 Obligation to Perform. Wherever this Lease requires either party
to perform any obligation, such party shall be entitled to discharge such
obligation by causing it to be performed by some other person, but the foregoing
shall in no way limit, restrict or excuse Landlord's or Tenant's obligations
under this Lease or the restrictions on assignment, conveyance or transfer
contained in this Lease.
33.15 Counterparts. This Lease may be executed in counterparts, each of
which shall constitute one and the same agreement.
33.16 Time Periods. Whenever this Lease requires either party to
perform any action within a specified period, or requires that a particular
event occur within a specified period, if the last day of such period is not a
Business Day, then the period shall be deemed extended through the close of
business on the first Business Day following such period as initially specified.
This Section shall in no event delay or defer the effective date of any Rent
adjustment or the commencement of any period with respect to which interest on a
payment shall accrue.
33.17 Rule Against Perpetuities. If the rule against perpetuities or
any rule of law with respect to restrictions on the alienation of property or
any other rule of law shall limit the time when any event contemplated by this
Lease may occur, the happening of such event shall not be impaired within any
period permitted by such rule. Such period with respect to the rule against
perpetuities shall expire upon the expiration of twenty (20) years after the
death of the last survivor of the following individuals:
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Xxxxx Xxxxxxxxx of Memphis, Tennessee
Xxxxx Xxxxxxxx of Memphis, Tennessee
Dylan Buffalo of Germantown, Tennessee
The intent of this provision is to allow to the maximum extent
permissible by an applicable rule of law the occurrence of any event
contemplated by this Lease.
33.18 No Agency or Partnership. Nothing herein contained shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that no provision
contained herein, nor any acts of the parties hereto, shall be deemed to create
any relationship between the parties hereto other than the relationship of
Tenant and Landlord.
34. NOTICES.
All Notices and other communications required or permitted to be given
or delivered hereunder shall be in writing, addressed to Landlord or Tenant at
the addresses set forth below or at such other address as Landlord or Tenant may
designate by notice given to the other party in the manner herein provided, and
shall be deemed to have been given (a) on the date received if given by United
States mail, postage prepaid, registered or certified, return receipt requested,
or (b) on the date delivered if given by personal delivery or recognized
overnight courier service, provided that delivery is acknowledged in writing by
the receiving party or employee of such party:
Landlord:
XXXXXX'X MARYLAND HEIGHTS LLC
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy to:
XXXXXX'X ENTERTAINMENT, INC.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
Fax No.: (000) 000-0000
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Tenant:
RIVERSIDE JOINT VENTURE
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx,XX 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Horn, Goldberg, Gorny, Daniels, Plackter & Xxxxx
Suite 500 Citicenter Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
35. GAMING LICENSE.
Landlord shall undertake to obtain and shall maintain all gaming
licenses and approvals required by the State to enable Landlord to receive the
Percentage Rent.
36. RECIPROCAL EASEMENT AGREEMENT.
The parties shall, contemporaneously herewith, execute, acknowledge and
deliver the Reciprocal Easement Agreement.
37. JOINT VENTURE AGREEMENT.
Landlord acknowledges that the Joint Venture Agreement provides for the
purchase of the Fee Estate in connection with the buyout by Players of HMHC's
interest under the Joint Venture Agreement for an amount equal to the greater of
(i) the cost of the Fee Estate or (ii) fair market value of the Fee Estate and
should the Fee Estate become vested in a person or entity other than Landlord
such person or entity shall be bound by this Lease pursuant to the provisions of
the Joint Venture Agreement to consummate such sale to Players.
38. SURVIVAL.
The obligations of the Tenant and Landlord herein which are not fully
performed upon the expiration or termination of this Lease shall survive such
expiration or termination hereof.
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THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
on the Commencement Date.
"Landlord"
XXXXXX'X MARYLAND HEIGHTS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxx,
Authorized Representative
"Tenant"
RIVERSIDE JOINT VENTURE
BY: PLAYERS MH, L.P., General Partner
BY: PLAYERS MARYLAND
HEIGHTS, INC., Its General
Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx,
Secretary
BY: XXXXXX'X MARYLAND HEIGHTS
CORPORATION, General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxx,
Authorized Representative
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