AMENDED AND RESTATED LEASE AGREEMENT
BY AND BETWEEN
THE PORT AUTHORITY OF KANSAS CITY, MISSOURI
("LANDLORD")
AND
HILTON HOTELS CORPORATION
("TENANT")
DATED AS OF
AUGUST 21, 1995
AMENDED AND RESTATED
LEASE AGREEMENT
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THIS AMENDED AND RESTATED LEASE AGREEMENT (the "Lease") is made and entered
into by and between THE PORT AUTHORITY OF KANSAS CITY, MISSOURI (the "Landlord")
and HILTON HOTELS CORPORATION, a Delaware corporation (the "Tenant"), as of the
____ day of August, 1995.
RECITALS
The following recitals are a material part of this Lease:
A. Landlord is a body politic created and formed by the city of Kansas City,
Missouri (the "City") under Ordinance Number 47523 adopted February 11,
1983 by virtue of the power granted to the City under Sections 68.010 et. seq.
of the Revised Statutes of Missouri.
B. Tenant submitted a proposal dated December 30, 1992, and supplemented on
January 11, 1993 (collectively, the "Proposal"), to construct gaming facilities
on property leased by Landlord from the City. Landlord and Tenant signed a
Development Agreement on March 12, 1993, under which Tenant attempted to develop
such facilities on Site B and agreed to construct related infrastructure on
behalf of Landlord and the City. Because of difficult site constraints, changing
regulatory requirements, changes in the Missouri gaming laws, and concern of
Landlord and Tenant with potential problems relating to environmental and
archaeological issues at Site B, Landlord and Tenant have agreed, subject to the
Development Agreement (as defined herein), to construct Tenant's gaming
enterprise at Site A instead of at Site B and to modify the requirements of the
Development Agreement relating to infrastructure construction and development.
C. The City, as present owner of the Demised Premises (as defined herein)
has, under that certain Kansas City Riverfront Lease Agreement dated May 14,
1993 as amended by agreements dated September 30, 1994 and ________________,
1995 (collectively "City Lease"), leased the Demised Premises (as herein
defined) to Landlord with all necessary right, title and interest thereto in
order for Landlord to have the full legal ability to further sublease the same
to other parties such as Tenant.
D. Subject to and in connection with that certain Development Agreement made
and entered into by and between the Landlord and Tenant on March 12, 1993, and
amended by Addenda One through Fourteen (collectively the "Development
Agreement"), the first and signature pages of each of which are attached hereto
identified as Exhibit A, Landlord has agreed to sublease to Tenant the Demised
Premises and the Easements (as defined herein) and Tenant has agreed to sublease
the same from Landlord.
E. On March 12, 1993, Landlord and Tenant entered into a certain Lease
Agreement (the "Lease") under which Landlord leased to Tenant the Demised
Premises and additional real property.
F. In the Twelfth and Thirteenth Addendums to the Development Agreement
(Exhibit D) the parties agreed that Tenant would construct its riverboat gaming
floating facility ("Riverboat Gaming Facility") in a basin adjacent to the
Missouri River.
G. The parties hereto have determined that the Lease should be amended and
restated.
WITNESSETH, that for and in consideration of the sum of Ten and NO/100
Dollars ($10.00) to each of them paid by the other, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged by each of them, the parties hereto do hereby covenant and agree as
follows:
ARTICLE I.
Demised Premises
Section 1.01 DEMISE. Landlord hereby subleases to Tenant, and Tenant hereby
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leases from Landlord, the real property described in Exhibit B attached hereto,
together with all buildings and improvements to be constructed in accordance
with the Development Agreement ("Site Improvements") (collectively the "Demised
Premises"), and specifically including the Riverboat Gaming Facility and
including the following easements and appurtenances:
(a) That certain driveway easement conveyed to Landlord by Kansas City Power
and Light Company ("KCPL") in the document entitled "Service Access
Easement Agreement," which is recorded as Document No. ____ in Volume ____ at
Page ____ of the Recorder of Deeds Office of Xxxxxxx County, Missouri and which
was executed by such parties for the purpose of ingress and egress to and from
the Demised Premises and Riverfront Road and which such easement is described in
Exhibit B-1, which is attached hereto and incorporated herein by reference; and
(b) A certain pedestrian easement (the "Pedestrian Access Easement") to be
conveyed to and inuring to the benefit of Landlord in accordance with the
Development Agreement and providing access for pedestrians crossing Front Street
for the purpose of using Tenant's Riverboat Gaming Facility (to be attached to
this Lease and identified as Exhibit B-2, as part of a future amendment to this
Lease); and
(c) Any other easements or other rights in adjoining property inuring to the
benefit of Landlord by reason of the City Lease including any and all easements
reasonably required for the installation, maintenance, operation and service of
sewer, water, gas, power, and other utility lines and services;
(d) All machinery, equipment and fixtures and other items of personal
property and any replacements thereof, attached to or used in connection with
the use, occupation and operation of the Demised Premises and the Easements,
except those items specifically referred to as Tenant's Personalty and Fixtures
in Section 4.01 hereof, and all alterations, additions and improvements
hereafter made to the Demised Premises, title to which may now or hereafter vest
in City and/or Landlord.
Following the conveyance of the Pedestrian Access Easement to Landlord,
this Lease shall be amended by the addition of the legal description for such
easement.
The Pedestrian Access Easement and the Service Access Easement referred to in
subsections (a) and (b) are hereinafter referred to as "the Easements."
Landlord warrants that it and no other entity now has the right to sublease the
Demised Premises and the Easements to Tenant, and that so long as Tenant is not
in default hereunder or under the Development Agreement, Tenant shall have
peaceful and quiet use of the Demised Premises and the Easements, subject to all
matters presently of record and all other agreements and encumbrances to which
this Lease is or may hereafter be subordinated or otherwise made subject to as
permitted herein or in the Development Agreement, and such use by Tenant shall
also be subject to the following:
(i) any state of facts which an accurate survey may show; and
(ii) easements, covenants and restrictions of record, if any, to the extent
that the same are in force or effect; and
(iii) present and future zoning laws, ordinances, resolutions and
regulations of the City, and all present and future ordinances, laws,
regulations and orders of all boards, bureaus, commissions and bodies of any
municipal, county, state or federal government or governmental authority now or
hereafter having or acquiring jurisdiction of the Demised Premises and/or the
use and improvement thereof and/or the operation of gaming or other enterprises
thereat or in connection therewith; and
(iv) violations of law, ordinances, orders and requirements, whether or not
of record, of any federal, state or municipal department or authority having
jurisdiction over or affecting the Demised Premises, as the same may exist on
the date hereofor may be hereafter enacted; and
(v) condition and state of repair of the Demised Premises as the same may be
on the date of execution hereof.
Notwithstanding anything to the contrary contained herein, the Demised
Premises, the Easements, and all improvements presently existing thereon,
Landlord's interest therein and City's title thereto have been examined by
Tenant and when accepted by it as evidenced by its execution hereof or by its
use thereof shall be deemed to have been accepted by it in its then present "as
is" condition, except as set out in Article VIII hereof.
Section 1.02 TERM. The term of this Lease (the "Term") shall commence on the
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date hereof (the "Commencement Date") and shall terminate on the
Termination Date (as defined herein), except as renewed under Article XIX hereof
or as earlier terminated under Article XVIII hereof. The date on which the Tern
shall terminate (the "Termination Date") shall be the earlier of:
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(a) Ten (10) years after the date on which Tenant begins operation of its
riverboat gaming enterprise ("Actual Opening Date") on the Demised Premises; or
(b) Ten (10) years after the Deemed Opening Date (which shall be twenty-four
(24) months after the Commencement Date, subject to extension for force majeure
delay as defined in Section 5.4 of the Development Agreement) (the Actual
Opening Date or the Deemed Opening Date, whichever first occurs is sometimes
referred to herein as the "Opening Date").
Landlord and Tenant agree, upon demand of the other, to execute and deliver
to the other party hereto, a declaration setting forth the Termination Date (in
conformance herewith) as soon as it has been determined.
Section 1.03 TERMINATION. This Lease shall terminate on the Termination Date
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(unless renewed in accordance with the provisions for renewal contained in
Article XIX hereof, or unless otherwise extended by written agreement of
Landlord and Tenant), without the necessity of any additional notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives notice to
then vacate or quit the Demised Premises and agrees that Landlord shall then be
entitled to the benefit of all provisions of law respecting the summary recovery
of possession of the Demised Premises from a tenant holding over to the same
extent as if statutory notice had been given. Tenant hereby agrees that if it
fails to surrender the Demised Premises and the Easements an the Termination
Date, Tenant will be liable to Landlord for any and all damages which Landlord
shall suffer by reason thereof including, but not being limited to, damages
under Section 1.04 hereof and liquidated damages as described in Section 2.06
hereof or elsewhere described herein.
Section 1.04 HOLDING OVER. If Tenant shall be in possession of the Demised
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Premises after the expiration of the Term, or, if applicable, after any validly
exercised renewal thereof as provided for herein, the tenancy under this Lease
shall become one from month to month, terminable by either party on thirty (30)
days prior written notice, and shall be subject to all of the terms and
conditions of this Lease as though the Term had been extended from month to
month, except that: (i) the Minimum Net Rent (as defined herein) payable
hereunder for each month during said holdover period shall be equal to twice the
monthly installment of Minimum Net Rent (as defined herein) payable during the
last month of the Term (or any such renewal thereof); (ii) the installment of
Percentage Rent (as defined herein) payable hereunder for each such month shall
be equal to one-twelfth (1/12th) of the average annual Percentage Rent payable
hereunder, if any, for the immediately preceding three (3) years of the Term (or
any renewal thereof); and (iii) all Additional Rent payable hereunder shall be
prorated for each month during such holdover period.
ARTICLE II.
Rent
Section 2.01 AMOUNT AND MEDIUM OF PAYMENT. Throughout the Term and any
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renewal thereof, 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 within the City, State of Missouri, as
rent hereunder (collectively, the "Rent") the following:
(a) Interim Fixed Rent as called for in Section 2.02 hereof; plus
(b) Minimum Net Rent as called for in Section 2.03 hereof; plus
(c) Percentage Rent as called for in Section 2.05 hereof; plus
(d) Additional Rent as called for in Section 2.10 hereof.
Section 2.02 INTERIM FIXED RENT. In lieu of Tenant's otherwise agreeing to
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reimburse Landlord for expenses paid and/or incurred by Landlord for attorneys,
accountants and other consultants retained by Landlord in connection with its
requesting Tenant's Proposal and selecting Tenant as developer (which led to the
execution of this Lease by Landlord), and so as to ensure that Landlord
shall incur no expense with respect to the riverboat gaming enterprise of
Tenant, as Tenant agreed to so do under the Proposal, Tenant agrees (i) that any
payments made by it to Landlord on or before June 30, 1994 which might under
prior agreements have been a credit against Minimum Net Rent, shall not be so
deemed and Landlord shall not be obligated to credit such payments or any part
thereof against monies due to Landlord hereunder, and (ii) that beginning on
July 1, 1994 and continuing through the Opening Date or the Termination Date,
whichever first occurs, Tenant shall pay monthly interim fixed rent ("Interim
Fixed Rent") to Landlord at the rate of Twenty-Five Thousand and NO/100 Dollars
($25,000.00) per calendar month, payable in advance on the first day of each
such calendar month, three-fifths (3/5) of which sum, as so paid, shall on
Opening Date be credited against Minimum Net Rent due hereunder. Tenant shall
have no further liability to Landlord for any such Landlord expenses.
Section 2.03 MINIMUM NET RENT. Subject to credit therefor under Sections
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2.02, 2.04 and 2.13 hereof, beginning on the opening Date and continuing during
the remainder of the Term and any renewal thereof (as adjusted under Section
2.04 with respect thereto), Tenant shall pay to Landlord a minimum net annual
rent, over and above the other payments to be made by Tenant as hereinafter
provided, at the rate of Two Million and NO/100 Dollars ($2,000,000.00) per year
(as the same may be adjusted during any renewal term hereof). Such minimum net
rental (the "Minimum Net Rent") shall be paid in equal annual installments of
Two Million and NO/100 Dollars ($2,000,000.00) each, in advance, on the Opening
Date and on the date of each and every annual anniversary of the Opening Date
thereafter.
Section 2.04 PARTIAL MONTH. If the Commencement Date and/or the Opening Date
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shall occur on any day other than the first day of a calendar month, Tenant
shall pay Landlord on the Commencement Date and receive a credit on the Opening
Date, as applicable, of the proportionate amount of Interim Fixed Rent accrued
for the balance of such current calendar month.
Section 2.05 PERCENTAGE RENT. Beginning with the Opening Date and continuing
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throughout the entire remaining Term of this Lease and any renewal thereof,
pursuant to the terms of Section 2.07 hereof Tenant shall pay to Landlord as
minimum percentage rent (the "Percentage Rent") a sum of money equal to three
and one quarter percent (3 1/4%) of Gross, Revenues (as defined herein) less
Minimum Net Rent paid hereunder. As used herein, the term "Gross Revenues" shall
mean the sum of "adjusted gross receipts" as such term is defined under the
Missouri Gaming Laws of the Revised Statutes of Missouri, plus all revenues from
admissions, sales of food, beverages, merchandise, services, parking charges,
and all other business endeavors at the Demised Premises and/or Tenant's
riverboat gaming enterprise as are derived from use of the Demised Premises
and/or operation of Tenant's riverboat gaming enterprise (including any parking
facilities or concessions operated with respect thereto) by Tenant or any
licensee, sublessee, franchisee or other operator of all or any portion of any
such business endeavors, on or in connection with all or any portion of the
Demised Premises or the Easements.
Section 2.06 OBLIGATION TO OPERATE. At all times from and after the Opening
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Date during the Term of this Lease (including any validly exercised renewals of
the original or any extended term hereof), Tenant will continuously use and
occupy the Demised Premises and operate its riverboat gaming enterprise in
connection therewith in good faith and in such a manner as shall assure the
transaction of a maximum volume of business in and at the Demised Premises and
from said riverboat gaming enterprise. If Tenant shall fail to cause its said
riverboat gaming enterprise to be operated as required under the immediately
preceding sentence, then, in addition to any other remedy available to Landlord
under this Lease, Tenant shall pay to the Landlord in lieu of Percentage Rent
and in addition to any other Rent payable hereunder, and as liquidated damages
for such failure to so operate, a sum equal to fifty percent (50%) of the then
applicable Minimum Net Rent applicable to each day or portion thereof during
which Tenant shall fail to so operate (e.g. if not operating for forty (40)
days, 40/365th of 50% of the then applicable Minimum Net Rent as Percentage Rent
for such forty (40) days). Notwithstanding the foregoing, solely for the
purposes of this Section 2.06 Tenant's failure to so operate shall be deemed
unavoidable and not a failure to so operate, if and so long as non-operation
shall be directly caused by fire or other casualty, national emergency,
condemnation, enemy action, civil commotion, strikes, lockouts, or national
defense preemptions, acts of God, energy shortages, changes in the Missouri law
which prohibits the continuation of Tenant's business, changes in the Kansas
City, Missouri gaming industry which make Tenant's gaming operations
unprofitable for a continuous period of one (1) year or more, or any other
similar causes beyond the reasonable control of Tenant, and provided further
that Tenant shall continually thereafter use its diligent best efforts to
alleviate the cause for such cessation of operation and commence operation as
soon thereafter as is practicable.
Section 2.07 QUARTERLY STATEMENT/PAYMENT OF PERCENTAGE RENT. Tenant shall
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deliver to Landlord, within thirty (30) days after the end of each third month
of the Term of this Lease after Opening Date, a written statement, in form
reasonably acceptable to Landlord, certified to as true, complete and accurate
by an authorized officer of Tenant, setting out its Gross Revenues during the
immediately preceding three (3) month period ("Tenant's Quarterly Statement"). A
similar statement, certified as correct by Tenant's chief financial officer
shall be delivered to Landlord within thirty (30) days after each anniversary of
the Opening Date ("Tenant's Annual Statement"). Tenant shall pay any Percentage
Rent due, based on Tenant's Quarterly Annual Statement, within thirty (30) days
after the end of the quarter or year reported in Tenant's Quarterly or Annual
Statement, which statement reflects that any Percentage Rent is due hereunder,
as a result of 3-1/4% of Gross Revenues during the total period of time
reflected therein exceeding the Minimum Net Rent due for the 12-month period of
time as to which said Quarterly or Annual Statement relates.
Section 2.08 ACCOUNTING RECORDS AND AUDITING RIGHTS.
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2.08.1 Accounting Records. Tenant shall maintain at the Demised Premises or
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at a central accounting location maintained in the City, and identified to
Landlord upon request, account records and procedures complying with generally
accepted accounting principles consistently applied, as defined by the American
Institute of Certified Public Accountants ("AICPA") and the Financial Accounting
Standards Board ("FASB"); provided, however, that such principles shall
comply in all respects and conform to all rules, regulations and requirements of
the Gaming Commission of the State of Missouri or any similar body established
in Missouri relating to accounting principles for the determination of adjusted
gross receipts of Tenant, so as to enable Tenant to calculate, and Landlord to
verify, any Percentage Rent due under this Lease. Tenant shall preserve Tenant's
said books and records relating to each calendar year for at least three (3)
years after the end of such calendar. If at the conclusion of such three-year
period, a dispute is pending between Landlord and Tenant regarding the amount of
Percentage Rent due, then Tenant shall continue to preserve such records pending
the final disposition of such dispute.
2.08.2 Audit Procedures. Within (and in no event later than) seventy-five
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(75) days after the end of each calendar year of Tenant, Tenant shall cause the
certified public accountant then regularly auditing Tenant's books and records
(which CPA shall be licensed in Missouri and shall be a member of AICPA) to
audit Tenant's (and/or any subtenant's, licensee's, franchisee's or
concessionaire's) books and records relevant to the calculation of Rents and
other payments and Gross Revenues reported by Tenant and/or which should have
been reported by Tenant during its preceding calendar year and to certify to
Landlord the correctness of same and the compliance thereof with the definitions
and requirements of this Lease. Tenant shall provide to Landlord, at the time of
filing thereof, copies of all financial reports and tax returns furnished to the
State of Missouri and/or the Gaming Commission thereof in connection with the
determination of Tenant's taxable gaming revenue and/or adjusted gross receipts.
Further, if Tenant shall fail to so provide to Landlord such certification
and/or copies as and when due hereunder or if Landlord shall desire to audit
such statement(s), Landlord, in conjunction with the City Auditor and Director
of Finance for the City, shall have the right to audit the books and records of
Tenant with respect to Percentage Rent or other payments provided for in this
Lease at any time upon reasonable notice; provided that Landlord agrees to
exercise this audit right not more frequently than once per fiscal year. Any
such audit shall be performed in accordance with generally accepted auditing
standards, during ordinary business hours and without unreasonably interfering
with Tenant's business. If such certification was not provided or if any such
audit reveals that Gross Revenue or any portion of Percentage Rent due hereunder
was understated, then within thirty (30) days after receipt of the audit with
appropriate backup documentation, Tenant shall pay to Landlord the additional
Percentage Rent due on account of the audit or audit corrections. Any adjusting
payment due on account of previous underpayment shall bear interest at the
Interest Rate (as defined herein) from the date it would have been paid had
Tenant's Quarterly Statement been correct, until the date actually paid. If such
certification was not so provided or if Percentage Rent reported therein was
understated by more than two percent (2%) for any audited period of time, then
Tenant shall pay the reasonable cost of the audit showing same and/or disclosing
such understatement; otherwise the audit shall be conducted at Landlord's
expense.
Section 2.09 NET LEASE. It is the purpose and intent of Landlord and Tenant
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that this is a net lease and that from and after the opening Date, the Minimum
Net Rent (and any Percentage Rent and/or Additional Rent) shall, except as
herein otherwise provided, be absolutely net to Landlord, so that this Lease
shall thereafter yield, net, to Landlord, the Minimum Net Rent specified in
section 2.03 hereof in each remaining year during the Term and any renewal
thereof, together with the Percentage Rent provided for in Section 2.05 hereof,
and the Additional Rent provided for in Section 2.10 hereof, and that all costs,
expenses and obligations of every kind and nature whatsoever relating to
the Demised Premises and/or the operation of Tenant's riverboat gaming
enterprise thereon and/or in connection therewith, except as herein otherwise
provided, which may arise or become due during or out of the original or any
renewal Term of this Lease, shall be paid by Tenant, and that Landlord shall be
protected, defended, indemnified and held harmless by Tenant from and against
the payment of same or any obligation to pay the same.
Section 2.10 ADDITIONAL RENT. Except as herein otherwise provided, Tenant
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shall also pay without notice except as may be required in this Lease, and
without abatement, deduction or set-off, as additional rent ("Additional Rent"),
all sums, Impositions (as defined in Article III hereof), costs, expenses and
other payments which Tenant assumes or agrees to pay hereunder, and, in the
event of any non-payment thereof, Landlord shall have all the rights and
remedies provided for herein or by law.
Section 2.11 ABSOLUTE RIGHT TO RENT. Rent due hereunder shall be paid to
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Landlord without notice or demand and without abatement, deduction or set-off,
except as herein otherwise specifically provided.
Section 2.12 ABSOLUTE MINIMUM RENT. Notwithstanding anything to the contrary
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contained herein, the Minimum Net Rent shall never be less than $2,000,000.00
per year (subject to sum credited under Section 2.03, 2.04 and 2.13 hereof as
rent received) and the amount of Additional Rent due hereunder shall always
reflect the expenses incurred or made upon which Additional Rent is due.
Section 2.13 GRANT AND CREDIT AGAINST RENT. As additional consideration to
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Landlord for Landlord's entering into this Lease and the Development Agreement,
Tenant shall make a grant to Landlord in the amount of TEN MILLION DOLLARS
($10,000,000.00), payable in all events as follows: ONE MILLION AND NO/100
DOLLARS ($1,000,000.00) on the Opening Date, and a like sun of ONE MILLION AND
NO/100 DOLLARS ($1,000,000.00) on the anniversary of the Opening Date in each of
the next nine (9) consecutive years after the year in which the Opening Date
occurs. This grant, in the aggregate, shall be known as the "Riverfront Park
Grant." Said Riverfront Park Grant, along with Minimum Net Rent payable during
the initial ten (10) year term hereof, shall be utilized, inter alia, for
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completion of the work described in Exhibit I of the Development Agreement (or
for bond financing payments due with respect thereto), and for the purposes set
out in Exhibit D attached hereto.
Section 2.14 Bond Issue. Tenant acknowledges that Landlord intends to employ
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the Rents and Riverfront Park Grant in part to cover debt service under and
other costs of a tax exempt revenue bond issue (the "Bond Issuance") utilizing
the Tenant's credit and its payment obligations hereunder in order to fund the
costs of the work described in Exhibit I to the Development Agreement. Tenant
further acknowledges that its obligations hereunder are not subordinate to any
of its most senior or other debts or obligations and that Landlord has not
subordinated this Lease and/or Tenant's obligation hereunder to any other debt
or obligations of Tenant. Tenant also acknowledges that in order to complete
such work, it is necessary for Landlord to have net proceeds totaling in the
aggregate not less than $20,000,000.00, in addition to amounts sufficient to
fund interest reserves and to pay costs of issuance of the bonds, available to
it as a result of the sale of such bonds.
In addition, should said net proceeds be less than $20,000,000.00, Tenant
shall on opening Date waive that portion of the credit to be given under Section
2.02 of this Lease which is equal to the amount by which $20,000,000.00 exceeds
the actual net proceeds of the Bond Issuance (provided however, such waiver
shall not exceed the sum of $195,000.00).
As additional consideration for Landlord entering into this Lease with
Tenant, Tenant agrees, that, on the Commencement Date, it shall pay Landlord
in lieu of the anticipated cost of a forward interest rate swap or other
derivative or financing device selected by Landlord, the sum of Three Hundred
Fifty Thousand Dollars ($350,000.00).
ARTICLE III.
Payment of Taxes, Assessments, Etc.
Section 3.01 IMPOSITIONS. Tenant shall pay or cause to be paid (except as in
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Section 3.03 hereof provided) , before any fine, penalty, interest or cost
may be added thereto for the non-payment thereof, all taxes, general and/or
special assessments, water, fire line, steam and sewer rents, fees, rates and
charges, levies, license and permit fees and all other governmental charges,
general and special, ordinary and extraordinary, foreseen or unforeseen, of any
kind and nature whatsoever, which at any time on or after the Commencement Date
may be assessed, levied, confirmed, imposed upon, and/or become due and payable
during the balance, if any, of the original Term or any renewal or extension
thereof, out of or in respect of, or become a lien on, the Demised Premises, or
any part thereof or any appurtenance thereto and/or Tenant's riverboat gaming
enterprise (all such taxes, assessments, water, fire line, steam and sewer
rents, fees, rates and charges, levies, license and permit fees and other
governmental charges being hereinafter referred to as "Impositions," and any of
the same being hereinafter referred to as an "Imposition"); provided, however,
that
(a) if, by law, any Imposition may, at the option of the taxpayer, be paid
in installments, Tenant may pay the same in equal installments over the period
of time allowed under the terms thereof, provided, however that Tenant shall pay
all such installments remaining unpaid at the expiration or earlier
termination of the Term of this Lease or any properly exercised renewal or
extension thereof; and
(b) all Impositions for the calendar or tax years in which the Commencement
Date occurs and the Term or any renewal term ends shall be apportioned so that
Tenant shall pay only those portions thereof which correspond with the portion
of said calendar years as are within the Term and/or any renewal or extension
thereof and are payable by Tenant hereunder.
Section 3.02 FURNISHED RECEIPTS. Tenant, upon request of Landlord, shall
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furnish to Landlord or, if requested by Landlord, to City and/or any mortgagee
of Landlord, within thirty (30) days after the date when any Imposition would
become delinquent, official receipts of payment issued by the appropriate taxing
authority, or other evidence satisfactory to Landlord, City and/or such
mortgagee, evidencing the payment thereof.
Section 3.03 SEEKING OF REDUCTION OF IMPOSITIONS BY TENANT. Tenant shall be
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entitled to seek a reduction in the valuation of the Demised Premises for tax
purposes and to contest in good faith by appropriate proceedings, at Tenant's
sole cost and expense, and at no cost or expense to Landlord, the amount, rate,
or validity in whole or in part of any Imposition, and if permitted by law may
defer payment thereof, so long as no interest or penalty shall accrue thereon or
with respect thereto or provided that such interest or penalty is deposited with
Landlord or such taxing authority by Tenant to protect Landlord's interest if
Tenant does not prevail in such proceeding.
Section 3.04 JOINING OF LANDLORD. Landlord shall not be required to join in
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any proceedings to contest any Imposition unless the provisions of any law, rule
or regulation at the time in effect shall require that such proceedings be
brought by or in the name of Landlord, in which event Landlord shall join in
such proceedings or permit the same to be brought in its name. Landlord shall
not ultimately be subjected to any liability for the payment of any costs or
expenses in connection with any such proceedings, and Tenant shall protect,
defend, indemnify and hold Landlord harmless from any such costs and expenses.
Tenant shall be entitled to any refund of any Imposition and penalties or
interest thereon which are recovered by Landlord and which have already been
paid by Tenant, or which have been paid by Landlord and previously reimbursed in
full by Tenant.
Section 3.05 PRIMA FACIE EVIDENCE. The certificate, advice, receipt or xxxx
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of the appropriate official designated by law to make or issue the same or to
receive payment of any Imposition or of non-payment of such Imposition shall be
prima facie evidence that such Imposition is due and unpaid or has been paid at
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the time of the making or issuance of such certificate, advice, receipt or xxxx.
Section 3.06 UTILITIES. During the Term hereof, and any renewals thereof,
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Tenant shall be responsible for obtaining, maintaining, supplying and paying for
all utilities required for operation of its business on and in connection with
the Demised Premises and shall make all payments for or with respect to the same
on a timely basis. Such payments as and when due shall also be considered
"Impositions" hereunder.
ARTICLE IV.
Surrender
Section 4.01 REMOVAL OF PERSONALTY AND FIXTURES. The Riverboat Gaming
--------------------------------------
Facility, together with its contents and including trade fixtures and personalty
shall, until termination of this Agreement, be the absolute property of the
Tenant. Following the termination of this Agreement, Tenant shall have a period
of sixty days (60) in which to remove all or part of the furniture, trade
fixtures and business equipment within the Riverboat Gaming Facility ("Removal
Period"). Tenant's furniture, trade fixtures and business equipment shall
include and be limited to the following: (1) all gaming equipment including slot
machines, table games (Blackjack, Craps, Poker, Mini Baccarat), slot bases, slot
systems (tracking, data and communications), cards, chips, cups, etc.; (2) All
gaming-related furnishings, fixtures and equipment including tables, chairs and
stools; (3) unattached casino bar equipment and related items (e.g. mixers and
blenders), office furniture and portable panel systems and equipment other than
that located in general business offices; (4) All computers and equipment other
than that located in general business offices (5) All interior and exterior
signage (attached and freestanding); (6) All security and surveillance and
specialized audio visual equipment and systems related to casino operation only
and not to any portion of the Demised Premises as a structure; (7) All (i) other
special decorative elements and (ii) advertising elements, related to or
expressing the brand name of Tenant or concerning Tenant's corporate identity;
(8) reader or other message type boards whether installed on the interior or
exterior and (9) special decorative doors, windows or lighting fixtures but only
if Tenant on such removal replaces such items with items of comparable
functional and decorative quality. In addition, Tenant will reasonably repair
any material damage to the Riverboat Gaming Facility caused by Tenant's exercise
of its right to remove Tenant's Personalty and Fixtures. Provided, however,
Tenant shall not have the right to remove any: (i) wiring or other apparatus or
devise (including that for general building security systems) that is installed
within the walls, floors or ceilings of the Riverboat Gaming Facility on a
permanent or semi-permanent basis, or (ii) signage that is of a generic nature
such as that for exits and restrooms. All of the above is referred to herein as
"Tenant's Personalty and Fixtures". Following Removal Period and subject to
Tenant's absolute right to remove Tenant's Personalty and Fixtures, any
furniture, trade fixtures and business equipment remaining within the Riverboat
Gaming Facility following the Removal Period shall become the property of
Landlord and Tenant shall transfer all title and interest in the Riverboat
Gaming Facility and remaining personalty, equipment and fixtures to Landlord.
Section 4.02 SURRENDER AND DELIVERY OF DEMISED PREMISES. Except as is
------------------------------------------
herein otherwise provided, Tenant shall on the last day of the Term hereof, or
any valid renewal or extension thereof, or upon the date of any earlier
termination of this Lease, will and truly surrender and deliver up the Demised
Premises and the Easements to the possession and use of Landlord without fraud
or delay and in good order, condition and repair, except for reasonable wear and
tear after the last necessary repair, replacement, restoration or renewal made
by Tenant pursuant to its obligations, or the obligations of any of its
subtenants, franchisees, licensees or invitees hereunder, and the transfer to
Landlord of any reserve accounts with respect thereto, free and clear of all
lettings and occupancies other than subleases then immediately terminable at the
option of the Landlord or subleases to which Landlord shall have specifically
consented, and free and clear of all liens and encumbrances other than those, if
any, presently existing, or hereafter created and specifically consented to in
writing by Landlord, without any payment or allowance whatever by Landlord for
or on account of any improvements which may then be on the Demised Premises.
Section 4.03 PERSONAL PROPERTY NOT REMOVED. Any personal property of Tenant
-----------------------------
which shall remain in or on the Demised Premises after the expiration of the
Removal Period may, at the option of Landlord, be deemed to have been abandoned
by Tenant and either may be retained by Landlord as its property or be disposed
of, without accountability, in such manner as Landlord may see fit, or if
Landlord shall give written notice to Tenant to such effect, such property shall
be immediately removed by Tenant at Tenant's sole cost and expense. Upon
entering into any agreement with any subleasee, licensee, franchise or other
operator which occupies or is entitled to place any personal property on or in
the Demised Premises, Tenant shall advise Landlord of same (appropriately
redacted by Tenant to protect proprietary or confidential information) and
furnish to Landlord a copy of the agreement between Tenant and such party, so
that Landlord may notify such third party of Landlord's right to any personal
property remaining in or an the Demised Premises after the end of the Renewal
Period.
Section 4.04 LANDLORD NOT RESPONSIBLE. Landlord shall not be responsible for
------------------------
any loss or damage occurring to any personal property owned by Tenant or any
sublessee, licensee or franchisee of Tenant or any of their respective
suppliers, customers or invitees.
Section 4.05 FULL REPLACEMENT COST INSURANCE. The provisions of this Article
-------------------------------
IV shall survive any termination of this Lease.
ARTICLE V.
Insurance
Section 5.01 FULL REPLACEMENT COST INSURANCE. Tenant, at its sole cost and
--------------------------------
expense and at no cost or expense to Landlord, shall keep all of the
improvements on the Demised Premises (now or hereafter existing) or used in
connection therewith including, without limitation the Riverboat Gaming
Facility, insured, during the Term and each renewal and extension thereof,
against any loss or damage by fire, flood, earthquake and all other casualties
and perils, and including, without limitation, all other perils as are included
within what is commonly known as "all risk coverage" for any improvements on the
Demised Premises, as the same shall from time to time be customary for
premises similarly situated in Kansas City, Xxxxxxx County, Missouri, with full
replacement cost insurance, in amounts sufficient to prevent City, Landlord or
Tenant from being or becoming a co-insurer within the terms of the policy or
policies in question and in no event less than the full replacement cost value
thereof, exclusive of the cost of foundations, excavations, and footings below
the lowest basement floor, and without any deduction being made for
depreciation. Such full replacement cost value shall be determined from time to
time, but not more frequently than once in any twelve (12) consecutive calendar
months, at the request of Landlord, by an appraiser, architect, ship builder
and/or contractor or one or more of same, as applicable, who shall be acceptable
to Landlord in its sole discretion. No omission on the part of Landlord to
request any such determination shall relieve Tenant of its obligation hereunder.
Section 5.02 OTHER INSURANCE. Tenant, at its sole cost and expense and at no
---------------
cost or expense to Landlord, shall maintain during the Term and all renewals
thereof:
(a) for the mutual benefit of City, Landlord and Tenant, general commercial
(comprehensive) public liability insurance, and specifically including but not
being limited to indemnity insurance against claims for personal injury, bodily
injury, death or property damage, occurring upon, in or about or adjacent to the
Demised Premises, and/or any adjacent public improvements, garage, bridge,
walkway or elevators, and on, in or about the adjoining sidewalks, walkways and
passageways, including, without limitation, insurance protecting against claims
for personal injury, bodily injury or claim, death or property damage resulting
directly or indirectly from ownership, use, occupancy or maintenance thereof
including any change, alteration, improvement or repair thereof, to afford
protection for at least $200,000,000.00 to any one individual per occurrence
combined single limit and $200,000,000.00 in the aggregate; and
(b) rental value insurance against loss of rental or other income to be
derived by Landlord from the operation of Tenant's business in connection with
the Demised Premises due to the risks referred to in Section 5.01 hereof
(including those embraced by "all perils coverage") in an amount sufficient to
prevent Tenant from becoming a co-insurer within the terms of the policy or
policies in question, but in no event in an amount or amounts less than the
aggregate amount of the Minimum Net Rent and Percentage Rent, the Additional
Rent payable hereunder for a period of one (1) year; and Tenant hereby assigns
to Landlord the proceeds of such insurance so that in the event the improvements
an the Demised Premises shall be destroyed or seriously damaged, such proceeds
shall be held as security for the payment of such sums due hereunder until the
restoration of such improvements and, as Tenant shall make payment of such sums
to Landlord, Landlord shall, if Tenant shall not then be in default under this
Lease, pay out to Tenant from said amount the sums which shall have been so paid
by insurance proceeds. Tenant may, at its election, carry such insurance as a
coverage contained in a business interruption insurance policy; and
(c) such other insurance, and in such amounts, as may from time to time be
reasonably required by Landlord against other insurable hazards and liabilities
which at the time are customarily insured against in the case of premises and/or
business operations similarly situated in the State of Missouri, due regard
being or to be given to the type of improvements and the construction, use and
occupancy thereof, including but not being limited to workers' compensation and
other comparable insurance; and
(d) with respect to any construction or remodeling of improvements on the
Demised Premises, Tenant shall provide or shall require that each contractor
performing such work shall carry and maintain, at no cost or expense to
Landlord, with customary deductibles:
(i) commercial (comprehensive) liability insurance, including (but not
limited to) contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford protection, with respect
to personal injury, bodily injury, death or property damage of not less than
$1,000,000.00 per occurrence combined single limit; and
(ii) comprehensive automobile liability insurance with limits for each
occurrence of not less than $1,000,000.00 combined single limit; and
(iii) workers' compensation insurance or similar insurance in form and
amounts required by law, including employer's liability in the amount of not
less than $1,000,000.00 each occurrence, $1,000,000.00 by disease and
$1,000,000.00 each person by disease;
(iv) Builder's risk insurance, insuring the Demised Premises and related
property under construction or remodeling of improvements thereon with limits
previously approved by Landlord; and
(v) umbrella and excess umbrella insurance with limits previously approved
by Landlord.
(e) The amount of the coverages set out herein shall be subject to increase
or decrease at the time of each renewal of this Lease in accordance with
Consumer Price Index provisions of Section 19.01 below.
Section 5.03 TYPE OF POLICIES.
------------------
A. All insurance provided for in this Article shall be effected and
continuously maintained under valid and enforceable policies issued by insurers
of recognized responsibility licensed to do business in the State of Missouri,
or be a recognized insurance facility, in either case acceptable to Landlord,
which acceptance shall not be unreasonably withheld. Upon the execution of this
Lease, and thereafter not less than fifteen (15) days prior to the expiration
dates of the expiring policies theretofore furnished pursuant to this Article V,
originals or binders of the policies (or, in the case of general public
liability insurance, certificates of the insurers) bearing notations evidencing
the payment of premiums in full, or accompanied by other evidence satisfactory
to Landlord of such payment, shall be delivered by Tenant to Landlord.
B. Nothing in this Article V shall prevent Tenant from taking out insurance
of the kind and in the amounts provided for under this Article V under a blanket
insurance policy or policies covering properties in addition to the Demised
Premises, provided, however, that any such policy or policies of blanket
insurance (i) shall specify therein, or Tenant shall furnish Landlord with a
written statement from the insurers under such policy or policies specifying,
the amount of the total insurance allocated to the Demised Premises, which
amounts shall not be less than the amounts required by Sections 5.01 and 5.02
hereof and (ii) with respect to property coverage, such amounts so specified
shall be sufficient to prevent any one of the insureds from becoming a
co-insurer within the terms of the applicable policy or policies, and provided
further, however, that any such policy or policies of blanket insurance, as to
the Demised Premises, shall otherwise comply as to endorsements and coverage
with the provisions of this Article.
Section 5.04 NAMED INSURERS.
---------------
A. All policies of insurance provided for in this Article V shall name City,
Landlord and Tenant as the insured, as their respective interests may
appear, and also each fee and/or each leasehold mortgagee of the Demised
Premises, when requested, as the interest of any such mortgagee may appear, by
standard mortgagee clause, if obtainable, provided that any such mortgagee shall
agree that the proceeds of such insurance shall be applied in accordance with
this Lease. In case of any particular casualty resulting in damage or
destruction not exceeding $500,000.00 in the aggregate, the loss under such
policies shall be adjusted by Tenant and the insurance companies. In case of
such damage or destruction in excess of $500,000.00, the loss shall be adjusted
with the insurance companies by Tenant and Landlord. Notwithstanding the
foregoing, Tenant shall adjust any loss with respect to the Riverboat Gaming
Facility unless an Event of Default shall exist and be uncured on the date of
any such loss, in which case any such loss shall be adjusted by Landlord.
B. All such policies shall provide that the loss, if any,. thereunder &hall
be adjusted and paid as hereinabove provided. Each such policy shall contain a
provision that no involuntary act or omission of Tenant or anyone operating
under rights granted by it shall affect or limit the obligation of the issuing
insurance company to so pay the amount of any loss sustained.
Section 5.05 CANCELLATION NOTICE. Each such policy or certificate therefor
--------------------
issued by the insurer shall contain an agreement by the insurer that such policy
shall not be canceled or amended without at least thirty (30) days prior
written notice to Landlord and wording such that the insurer must notify
Landlord of any such impending cancellation or amendment.
ARTICLE VI. Landlord's Right to Perform Tenant's Covenants
Section 6.01 RIGHT TO MAKE PAYMENTS. If Tenant shall at any time fail to pay
----------------------
any Imposition or utility cost or charge in accordance with the provisions
of Article III hereof, or to take out, pay for, maintain or deliver any of the
insurance policies or certificates thereof or as provided for in Article V
hereof , or shall fail to make any other payment or perform any other act on its
part to be made or performed under this Lease, then Landlord, after ten (10)
days notice to Tenant (or without notice in case of an emergency) and Tenant's
failure to cure the same with the time period, if any, allowed for such cure,
and without waiving or releasing Tenant from any obligation of Tenant contained
in this Lease or from any default by Tenant hereunder 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):
(a) pay any Imposition or other charge payable by Tenant pursuant to the
provisions of Article III hereof, or
(b) take out, pay for and maintain any of the insurance policies provided
for in Article V hereof, or
(c) make any other payment or perform any other act on Tenant's part to be
made or performed under this Lease,
and may enter upon the Demised Premises for any such purpose, and take all such
action thereon, as may be necessary therefor or in connection therewith.
Section 6.02 REPAYMENT BY TENANT. All sums so paid by Landlord under this
---------------------
Article VI and or as a result of the exercise by Landlord of any of its rights
under this Article VI, and all costs and expenses incurred by Landlord with
respect thereto or in connection therewith, including, without limitation,
reasonable attorneys' fees in connection with the performance of any such act,
together with interest thereon at the Interest Rate from the date of such
payment or incurrence by Landlord of such cost and expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord on demand.
ARTICLE VII.
Repairs and Maintenance of the Demised Premises
Section 7.01 REPAIRS. Throughout the Term of this Lease and any renewal
-------
thereof, Tenant shall, at its sole cost and expense and at no cost or expense to
Landlord, take good care of the Demised Premises and all improvements and
additions thereon or thereto, including, without limitation, all alleyways,
walkways, passageways, sidewalks, curbs and streets, parking facilities and
bridges adjoining the same and shall keep the same in good order and condition,
except for reasonable wear and tear after the last necessary repair,
replacement, restoration or renewal made by Tenant pursuant to its obligations
hereunder, and shall make all necessary repairs thereto, interior and exterior,
structural and non-structural, ordinary and extraordinary, and foreseen and
unforeseen. All repairs, replacements, restorations and renewals made by Tenant
shall be at least equal in quality and class to the original work with respect
thereto.
Section 7.02 MAINTENANCE. Tenant shall at its sole cost and expense, and at
-----------
no cost or expense to Landlord, put, keep and maintain all portions of the
Demised Premises and the sidewalks, curbs, streets, bridges, alleyways, walkways
and passageways, bridges and parking facilities adjoining the same in a clean
and orderly condition, free of dirt, rubbish, snow, ice and unlawful
obstructions. Tenant shall also provide for structural maintenance, repair and
replacement of the portions of the Demised Premises normally requiring same.
Section 7.03 NO SERVICES FURNISHED. Landlord shall not be required to
---------------------
furnish to Tenant any utilities, facilities or services of any kind whatsoever
during the Term hereof or any renewal thereof, such as, but not limited to,
water, steam, heat, gas, telephone, cable televisions, hot water, electricity,
light, and/or power. Landlord shall in no event be required to make any
alterations, rebuildings, replacements, changes, additions, improvements or
repairs during the Term of this Lease or any renewal thereof.
ARTICLE VIII.
General and Specific Compliance with Laws, Insurance,
Development Agreement and Exhibits Thereto, Etc.
Section 8.01 GENERAL COMPLIANCE. Throughout the Term of this Lease and any
-------------------
renewal thereof, Tenant, at its sole cost and expense and at no cost or expense
to Landlord, shall promptly comply with all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state and
municipal governments, departments, commissions, boards and officers, and all
other body or bodies exercising similar functions, foreseen or unforeseen,
ordinary as well as extraordinary, which 'may be applicable to the Demised
Premises and the Easements or any portion thereof, and/or the sidewalks,
alleyways, walkways, passageway &, curbs, streets, parking facilities and
bridges adjoining the same or to the use or manner of use of the Demised
Premises and the Easements or any portion thereof, or the owners or occupants
thereof, including but not limited to the operation of any Riverboat Gaming
Facility used in connection therewith and the operation of any riverboat gaming
enterprise in connection with the Demised Premises and the Easements, whether or
not such compliance is required by reason of any condition, event or
circumstance existing prior to or after the commencement of the Term or any
renewal thereof. Provided, however, that nothing in this Lease shall be
construed to invalidate the Frustration of Purpose provisions found in Section
5.7 of the Development Agreement, which provisions are hereby incorporated
herein by reference.
Section 8.02 SPECIFIC COMPLIANCE. Notwithstanding the foregoing or anything
-------------------
else contained in this Lease to the contrary, and not intending to limit the
same, Tenant agrees that after its improvement and/or construction of
improvements on the Demised Premises, or the modification of same, Tenant shall
do and/or comply with each and all of the following:
8.02.1 Building Laws. Such improvements and their use by Tenant, its
--------------
sublessees, franchisees, licensees and its and/or their respective agents,
employees, contractors or invitees, shall comply fully with all environmental,
air quality, zoning, flood plain, planning, subdivision, building, health,
labor, discrimination, fire, traffic, safety, wetlands, shoreline and other
governmental and regulatory rules, laws, ordinances, statutes, codes and
requirements applicable to the Demised Premises or any portion thereof,
including, without limitation, the Fair Housing Act of 1968 (as amended) and the
Americans with Disabilities Act of 1990 (collectively, the "Building Laws").
Tenant shall obtain such final certificates as may be required or customary
and evidencing compliance with all building codes and permits, and approval of
full occupancy of such improvements (as improved) and of all installations
therein or improvements thereto. Tenant shall cause the Demised Premises to be
continuously in compliance with all Building Laws (as the same may be amended or
enacted from time to time). Tenant agrees to protect, defend, (with counsel
reasonably satisfactory to Landlord) indemnify and hold City and Landlord and
Landlord's Commissioners, officers, employees, contractors and agents harmless
from and against all liability threatened against or suffered by them or either
of them by reason of a breach by Tenant of any of the foregoing representations
and warranties contained herein. The foregoing indemnity shall include the cost
of all alterations to the Demised Premises (including, without limitation, all
architectural, engineering, legal and accounting costs), all fines, fees and
penalties, and all legal and other expenses (including, without limitation,
reasonable attorneys' fees), incurred in connection with the Demised Premises or
any portion thereof, being in violation of any Building Law and for the cost of
collection of the sums. due under this indemnity.
8.02.2 Toxic/Hazardous Substances; Tenant's Responsibilities. With respect
-----------------------------------------------------
to environmental liabilities and risks, the following shall apply:
(i) Definitions. "Toxic or Hazardous Substances" shall be interpreted
-----------
broadly to include, but not be limited to, any material or substance that is
defined or classified under federal, state or local laws as: (a) a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601(14), or 311 of the Federal
Water Pollution Control Act, 33 U.S.C. 1321, as now or hereafter amended; (b) a
"hazardous waste" pursuant to 1004 or 3001 of the Resource Conservation
and Recovery Act, 42 U.S.C. 6921, as now or hereafter amended; (c) a "toxic
pollutant" under 307 (1) (a) of the Federal Water Pollution Xxxxxxx Xxx, 00
X.X.X. 0000(x)(x), as now or hereafter amended; (d) a "hazardous air pollutant"
under 112 of the Clean Air Act, 42 U.S.C. 7412, as now or hereafter amended;
(e) a "hazardous material" under the Hazardous Material Transportation Act, 49
U.S.C. 1802(2), as now or hereafter amended; (f) toxic or hazardous pursuant to
regulations promulgated now or hereafter under any of the aforementioned laws;
or (g) presenting a risk to human health or the environment under other
applicable federal, state or local laws, ordinances or regulations, as now or as
may be passed or promulgated in the future. "Toxic or Hazardous Substances"
shall also 'mean any substance that after release in the environment and upon
exposure, ingestion, inhalation or assimilation, either directly from the
environment or directly by ingestion through food chains, will or may reasonably
be anticipated to cause death, disease, behavior abnormalities, cancer or
genetic abnormalities. "Toxic or Hazardous Substance" specifically includes, but
is not limited to, asbestos, polychlorinated biphenyls (PCBs) , petroleum and
petroleum based derivatives, and urea formaldehyde.
(ii) Use Restrictions/Compliance with Applicable Laws. Tenant, its
------------------------------------------------
sublessees, franchisees, licensees, and its and their respective agents,
employees, contractors and invitees, shall not use the Demised Premises in a
manner that violates any applicable federal, state or local law, regulation or
ordinance, including, but not limited to, any such law, regulation or ordinance
pertaining to air and water quality, the handling, transportation, storage,
treatment, usage or disposal of Toxic or Hazardous Substances, air emissions,
other environmental matters or any zoning and/or other land use matters. Tenant
shall not cause or permit the release or disposal of any Toxic or Hazardous
Substance on or from the Demised Premises. Tenant shall obtain prior written
approval from Landlord before causing or permitting any Toxic or Hazardous
Substance to be brought upon, kept or used in or about the Demised Premises by
Tenant, its sublessees, franchisees, licensees, and/or its or their respective
agents, employees, contractors or invitees.
(iii) Representations and Warranties. Tenant represents and warrants to
------------------------------
Landlord that:
a. Tenant is financially capable of performing and satisfying in full its
obligations pursuant to this Lease, including the provisions of this Article.
b. Tenant is not in violation of, or subject to, any existing, pending or
threatened investigation by any governmental authority under any applicable
federal state or local law, regulation or ordinance pertaining to air and water
quality, the handling, transportation, storage, treatment, usage or disposal of
Toxic or Hazardous Substances, air emissions, other environmental matters, or
any zoning or other land use matter.
c. Prior to the signing of this Amended and Restated Lease Agreement, Tenant
has made 'all appropriate inquiry,' into the previous ownership and uses of the
Demised Premises within the meaning of the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, or any other environmental law
described or referred to herein. Based on the conclusions reached by its
environmental consultant after performing a site assessment and based on
Landlord's representations and warranties herein, Tenant does not know and has
no reason to know or suspect that any Toxic or Hazardous substance has been
disposed of or released on, in or at the Demised Premises.
d. Tenant's intended use of the Demised Premises will not result in the
disposal or release of any Toxic or Hazardous Substance on or to the Demised
Premises or adjacent river.
e. Tenant does not and will not use any Toxic or Hazardous Substance on the
Demised Premises or adjacent river without the prior written approval of
Landlord.
f. Tenant will not change its intended use of the Demised Premises or the
nature of its said operations in connection therewith without prior notice to,
and written approval of, Landlord.
(iv) Indemnities and Financial Assurances. Tenant agrees to protect,
---------------------------------------
indemnify, defend (with counsel reasonably satisfactory to Landlord) and hold
City and Landlord and all of their respective commissioners, officers,
employees, contractors and agents harmless from any and all claims, judgments,
damages, penalties, fines, expenses, liabilities and losses arising during or
after the Term of this Lease or any renewals thereof, out of or in any way
relating to the presence, release or disposal of any Toxic or Hazardous
substance on or from all or any portion of the Demised Premises or the Easements
if such Toxic or Hazardous Substance is proved to be first present after
the Commencement Date solely as a result of the actions of Tenant (or its
employees, contractors or agents) or a third party or to a breach of the
environmental warranties made by Tenant in this Lease. Such indemnity shall
include, without limitation, all costs incurred in connection with any Toxic or
Hazardous Substance present on or under the Demised Premises or adjacent river
as a result of any discharge, dumping or spilling (accidental or otherwise) on
the Demised Premises or in the adjacent river after the Commencement Date.
To the extent directly involved with an indemnifiable occurrence described
above, the indemnification provided by this Article shall also specifically
cover, without limitation, all costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal and
restoration work required by any federal, state or local governmental agency or
political subdivision or other third party because of the presence or suspected
presence of any Toxic or Hazardous Substance in the soil, groundwater, or soil
vapor on or under the Demised Premises and/or adjacent river. Such costs may
include, but not be limited to, diminution in the value of the Demised Premises,
damages for the loss or restriction on use of rentable or useable space or of
any amenity of the Demised Premises, sums paid in settlements of claims,
attorneys' fees, consultants fees, and expert fees. The foregoing environmental
indemnity shall survive the expiration or earlier termination of this Lease
and/or any transfer of all or any portion of the Demised Premises, or of any
interest in this Lease.
(v) Notification Requirements. Tenant shall promptly notify Landlord in
--------------------------
writing of all spills or releases of any Toxic or Hazardous Substance, all
failures to comply with any federal, state, or local law, regulation or
ordinance, all inspections of the Demised Premises and/or adjacent river by any
regulatory entity concerning the same, all notices, orders, fines and
communications of any kind from any governmental entity or third party that
relate to the existence of or potential for environmental pollution of any kind
existing on or resulting from the use of the Demised Premises or any portion
thereof and/or adjacent river, or any activity conducted thereon, and. all
responses or interim cleanup action taken by or proposed to be taken by Tenant
or any government entity or private party on the Demised Premises or any portion
thereof or adjacent river.
Upon request by Landlord, Tenant shall provide Landlord with a written
report (a) listing each Toxic or Hazardous Substance that was/is used or stored
on the Demised Premises; (b) discussing all releases of any Toxic or Hazardous
Substance that occurred or were discovered on the Demised Premises and all
compliance activities related to such Toxic or Hazardous Substance or adjacent
river, including all contacts with and all requests from third parties for
cleanup or compliance; (c) providing copies of all permits, manifests, business
plans, consent agreements or other contracts relating to any Toxic or Hazardous
Substance executed or requested during the time period requested; and (d)
including such other information as may be reasonably requested by Landlord. The
report shall include copies of all documents and correspondence related to such
activities and written reports of verbal contacts.
(vi) Inspection Rights. Landlord, its officers, employees, contractors and
------------------
agents shall have the right, but not the duty, to inspect the Demised Premises
and Tenant's relevant environmental and land use documents upon reasonable
notice to Tenant and to perform such tests on the Demised Premises and/or
adjacent river as are reasonably necessary to determine whether Tenant is
complying with the terms of this Lease. Tenant shall be responsible for paying
for any testing that is conducted if it is determined that Tenant is not in
compliance with this Lease due to Tenant's or any of its sublessee's,
franchisee's or licensee's operations or use of the Demised Premises and/or
adjacent river.
8.02.3 Toxic/Hazardous Substances; Landlord Responsibilities.
--------------------------------------------------------
(i) Landlord hereby represents and warrants to Tenant that to the best of
its knowledge and based on The Phase II Environmental Report dated November 23,
1994 by Xxxxxxxx-Xxxxx Consultants and prepared on behalf of Tenant:
a. No Toxic or Hazardous Substance is present on, in, under or migrating
onto or from the Demised Premises;
b. There has been no release or discharge, or threat of release or
discharge, of any Toxic or Hazardous substance on, in, under or migrating onto
or from the Demised Premises;
c. The Demised Premises and any previous or current uses and operations
concerning the Demised Premises are not in violation of any applicable federal,
state or local statute, ordinance, law, regulation, consent decree,
administrative order, guidance document, remediation directive, or common law
relating to the public health and safety and protection of the environment
(hereinafter "Environmental Law");
d. Landlord has no actual or constructive knowledge of any notice of any
governmental entity or third party claiming that the Demised Premises or any
uses of and operations on or of the Demised Premises have resulted in any
violation of any Environmental Law;
e. No litigation is pending or proposed, threatened, or anticipated with
respect to any Toxic or Hazardous Substance at the Demised Premises or any
proposed use thereon or thereto; and
f. No underground storage tank containing petroleum or any other Toxic or
Hazardous Substance is or was located on or under the Demised Premises at any
time.
(ii) Indemnities and Financial Assurances. Landlord agrees to protect,
---------------------------------------
indemnify, defend (with counsel reasonably satisfactory to Tenant) , and hold
Tenant and all of its officers, employees, contractors and agents harmless from
any and all claims, judgments, damages, penalties, fines, expenses, liabilities
and losses arising during or after the Term of this Lease or any renewals
thereof, out of or in any way relating to (1) the presence, release or disposal
of any Toxic or Hazardous Substance on or from all or any portion of the Demised
Premises or the Easements, unless such Toxic or Hazardous Substance is
proved to be first present after the Commencement Date solely as a result of the
actions of Tenant (or its officers, employees, contractors or agents) or a third
party; or (2) the breach of the environmental warranties made by Landlord in
this Lease; or (3) the underground abandoned oil pipeline identified by
Xxxxxxxx-Xxxxx Consultants in that certain Phase 11 Environmental Report dated
November 23, 1994, and prepared by Xxxxxxxx-Xxxxx on behalf of Tenant, and any
related Toxic or Hazardous Substances. To the extent directly involved within an
indemnifiable occurrence described above, the indemnification provided by this
Article shall also specifically cover, without limitation, all costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any federal, state or local governmental
agency or political subdivision or other third party because of the presence or
suspected presence of any Toxic or Hazardous Substance in the soil, groundwater,
or soil vapor or under the Demised Premises, the Easements and/or adjacent
river. Such costs may include, but not be limited to, diminution in the value of
the Demised Premises and the Easements, damages for the loss or restriction on
use of rentable or useable space or of any amenity of the Demised Premises and
the Easements, sums paid in settlement of claims, attorneys' fees, consultants'
fees and expert fees. The foregoing environmental indemnity shall survive the
expiration or earlier termination of this Lease and/or any transfer of all or
any portion of the Demised Premises, the Easements, or of any interest in this
Lease.
Section 8.03 COMPLIANCE WITH INSURANCE. Tenant shall likewise observe and
---------------------------
comply with the requirements of all insurance policies of public liability,
property and all other policies of insurance required to be supplied by Tenant
and at any time in force with respect to the Demised Premises or the Easements,
whether or not such observance or compliance is required by reason of any
condition, event or circumstance existing prior to or after the Commencement
Date, and Tenant shall, upon learning of the existence of any violation or any
attempted violation of any of the provisions of this Article of this Lease by
any other person or entity, take steps, immediately upon knowledge of such
violation or attempted violation, to remedy or prevent the same as the case may
be.
Section 8.04 COMPLIANCE WITH DEVELOPMENT AGREEMENT. Tenant shall strictly
-------------------------------------
observe and fully comply with all of the requirements, terms and conditions of
the Development Agreement and all Exhibits thereto.
Section 8.05 CONTEST OF LAWS. Tenant shall have the right, after prior
---------------
written notice to Landlord, to contest by appropriate administrative and/or
legal proceedings, diligently conducted in good faith, in the name of Tenant or
Landlord or both, without cost or expense to Landlord and/or the City, the
validity or application of any law, ordinance, order, rule, regulation or
requirement of the nature referred to herein, subject to the following:
(a) if by the terms of any such law, ordinance, order, rule, regulation or
requirement, compliance therewith pending the prosecution of any such proceeding
may legally be delayed without the incurrence of any lien, charge or
liability of any kind against the Demised Premises, the Easements, or any part
thereof or operation of the Riverboat Gaming Facility, and without subjecting
Tenant or Landlord and/or the City to any liability, civil or criminal, for
failure so to comply therewith, Tenant may delay compliance therewith until the!
final determination of such proceeding; or
(b) if any lien, charge or civil liability would be incurred by reason of
any such delay, Tenant nevertheless may contest as aforesaid and delay as
aforesaid, provided that such delay would not subject Landlord and/or the City
to criminal liability or fine, and Tenant (i) furnishes to Landlord security,
reasonably satisfactory to Landlord, against any loss or injury by reason of
such contest or delay, and (ii) prosecutes the contest with due diligence.
Landlord, without cost to it, shall, subject to the foregoing, execute and
deliver any appropriate documents and instruments which may be reasonably
requested by Tenant in order to permit Tenant to so contest the validity or
application of any such law, ordinance, order, rule, regulation or requirement.
ARTICLE IX.
Improvements, Etc.
Section 9.01 IMPROVEMENTS. Tenant shall construct the Site Improvements as
------------
that term is defined in the Development Agreement. All construction, improvement
or renovation of or to the improvements by Tenant pursuant to this Lease
shall be done in strict and full compliance with all provisions hereof and of
the Development Agreement, shall be commenced within sixty (60) days after the
execution of the Contingencies Waiver Addendum, subject to the provisions in the
Development Agreement made for Unavoidable Delays as that term is defined in
Section 5.4 of the Development Agreement, and shall be completed in accordance
with Critical Path timing requirements of the Development Agreement.
Section 9.02 TITLE TO TENANT'S PERSONALTY AND FIXTURES. Title to Tenant's
-----------------------------------------
Personalty and Fixtures shall at all times during the Term of this Lease be that
of the Tenant. Title to all other Site Improvements including the Riverboat
Gaming Facility, any equipment and/or appurtenances thereto and all changes,
additions and alterations therein and all renewals and replacements thereof,
when made, erected, constructed, installed or placed upon the Demised Premises
or the Easements by Tenant shall be the property of the Landlord.
Section 9.03 DESTRUCTION/DAMAGE. If any of the improvements as erected and
------------------
constructed on the Demised Premises hereunder or under the Development Agreement
shall be substantially damaged by f ire or other casualty or as a result of a
taking mentioned herein, the provisions hereof shall govern.
Section 9.04 CHANGES AND ALTERATIONS. Tenant shall erect new buildings or
-----------------------
improvements on the Demised. Premises, the Easements, and/or make changes or
additions to existing improvements thereon only subject to, and in compliance
with, the provisions hereof and the relevant provisions of the Development
Agreement. Before beginning any such improvement and/or construction, Tenant
shall submit to Landlord a copy of the plans and specifications for same, and
any amendments thereto, together with an estimate which shall show in reasonable
detail, allocated among the various trades, the approximate cost of same. Such
plans and specifications shall comply with all relevant legal requirements, the
provisions hereof, and of the relevant provisions of the Development Agreement.
Section 9.05 PERFORMANCE BOND. Before beginning the addition or change to
----------------
any improvements which may at any time be on, adjacent to, or a part of the
Demised Premises, or the construction of any new building or other improvement
with respect thereto, Tenant will comply with all performance bond requirements
of City and/or other governmental authorities having jurisdiction with respect
thereto.
Section 9.06 INSURANCE ENDORSEMENTS. Before making any such change or
----------------------
alteration or before beginning the letting of any contracts relating to the
construction of any new improvement on the Demised Premises, Tenant shall supply
Landlord with such endorsements to the existing insurance policies by Tenant as
shall be necessary to covet the contemplated work.
Section 9.07 ADDITIONAL IMPROVEMENTS. If, after satisfactory completion of
-----------------------
all work to be done by it hereunder and under the Development Agreement, Tenant
desires to alter, enlarge or structurally change any improvements then on the
Demised Premises, Tenant may do so provided that Landlord has first approved in
writing Tenant's written plans and specifications for same, which approval shall
not be unreasonably withheld by Landlord if Tenant performs the same subject to
the provisions of this Lease and in particular this Article IX, as if such
additional work were called for under the Development Agreement.
Section 9.08 COMPLIANCE WITH LAWS. All improvements and/or additions made
--------------------
and/or erected hereunder shall be designed, constructed and completed in
compliance with all requirements of law and with all ordinances, regulations and
orders of any and all Federal, State, County and Municipal and other public
authorities relating thereto. on completion of same, Tenant will procure a final
Certificate of occupancy and deliver to Landlord the original or a copy thereof.
Section 9.09 SURRENDER OF IMPROVEMENTS. Any and all buildings, structures,
-------------------------
alterations, additions and improvements upon the Demised Premises and the
Easements, at the expiration or sooner termination of this Lease, shall then
become the property of Landlord and shall be surrendered in accordance with the
provisions hereof.
ARTICLE X.
Discharge of Liens
Section 10.01 NO LIENS. Tenant shall not create or permit to be created or
---------
to remain, and shall discharge, any and all mechanic's, laborer's or
materialman's liens and any and all conditional sale, title retention
agreements, chattel mortgages or security interests, which might be or become a
lien, encumbrance or charge upon or claim against the Demised Premises and the
Easements or any part thereof and having any priority or preference over or
ranking on a parity with the estate, rights and interest of Landlord in the
Demised Premises or any part thereof.
Section 10.02 DEFENSE OF LIEN CLAIM. If any mechanic's, laborer's,
---------------------
architect's, engineer's, materialman's or nurseryman's lien shall at any time be
filed against the Demised Premises and the Easements or any part thereof,
Tenant, within ten (10) days after notice of the filing thereof, shall cause the
same to be discharged of record by payment, deposit, bond, order of a court of
competent jurisdiction, or otherwise. if Tenant shall fail to cause such lien to
be so discharged within the period aforesaid, then, in addition to any other
right or remedy hereunder, Landlord, after ten (10) days,' notice to Tenant,
may, but shall not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such lien by deposit
or by bonding proceedings, and in any such event Landlord shall be entitled, if
Landlord so elects, to compel the prosecution of an action for the foreclosure
of such lien by the lienor and to pay the amount of the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by Landlord and
all costs and expenses incurred by Landlord in connection therewith, together
with interest thereon at the Interest Rate (as defined herein) per annum, from
the respective dates of Landlord's making of the payment or incurring of the
cost and expense shall constitute Additional Rent payable by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand.
Section 10.03 NO CONSENT. Nothing in this Lease contained shall be deemed or
----------
construed in any way as constituting the consent or request of Landlord, express
or implied, by inference or otherwise, to any contractor, subcontractor,
laborer, supplier or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration to or
repair of the Demised Premises, the Easements, or any part of either of same.
ARTICLE XI.
No Waste
Tenant shall not do or suffer any material waste or damage, disfigurement
or injury to the Demised Premises or any part thereof.
ARTICLE XII.
Use of Property
Section 12.01 PROPER USE. Tenant shall not use or allow the Demised
-----------
Premises, the Easements, or any improvements thereon or any appurtenances
thereto, for any unlawful purpose or in violation of any certificate of
occupancy or license covering or affecting the use of the Demised Premises or
the Easements or which may, by law, constitute a nuisance, public or private, or
which may make void or voidable any insurance then in force with respect
thereto.
Section 12.02 PROHIBITED US. Tenant shall not suffer or permit the Demised
-------------
Premises or any portion thereof to be used by the public as such, without
restriction or in such manner as might reasonably tend to impair Landlord's or
City's title to the Demised Premises and the Easements or any portion thereof,
or in such manner as might reasonably make possible a claim or claims of adverse
usage, adverse possession or prescription by the public, as such, or of implied
dedication, of the Demised Premises and the Easements or any portion thereof.
Tenant hereby acknowledges that Landlord does not hereby consent, expressly or
by implication, to the unrestricted use or possession of the whole or any
portion of the Demised Premises by the public, as such.
ARTICLE XIII.
Entry on Demised Premises by Landlord
Section 13.01 RIGHT TO ENTER. Tenant shall permit Landlord and its
----------------
authorized representatives to enter the Demised Premises at all reasonable times
for the purpose of (a) inspecting the same, and (b) making necessary
repairs by reason of Tenant's failure to make any such repairs or perform any
such work or to commence the same within ten (10) days after written notice from
Landlord (or without notice in case of emergency). Nothing herein shall imply
any duty upon the part of Landlord to do any such work, and performance thereof
by Landlord shall not constitute a waiver of Tenant's default in failing to
perform the same.
Section 13.02 STORAGE. During the progress of any work in, on, or to the
-------
Demised Premises and the Easements performed by Landlord pursuant to any of the
provisions hereof, Landlord may keep and store therein all necessary materials,
tools, supplies and equipment. Landlord shall not be liable for inconvenience,
annoyance, disturbance, loss of business or other damage of Tenant by making
such repairs or the performance of any such work, or on account of bringing
materials, tools, supplies and equipment into the Demised Premises during the
course thereof and the obligations of Tenant under this Lease shall not be
affected thereby.
ARTICLE XIV.
Indemnification of and by Landlord and Tenant
Effective upon the date hereof, Tenant shall fully indemnify and save
harmless Landlord and City and their respective elected and/or appointed
officials, agents, servants, employees, officers and directors, from and against
any and all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, and any and all suits and proceedings in connection therewith,
even if any such suit, claim or proceeding is false, groundless or fraudulent,
including, without limitation, reasonable architects', engineers', accountants',
expert witnesses' and attorneys' fees, which may be imposed upon or incurred by
or asserted against Landlord and/or City, their said elected and/or appointed
officials, agents, servants, officers, directors and employees by reason of or
arising in whole or in part from any of the following or other actual or alleged
matters, occurrences, events, transactions, acts and omissions during the Term
of this Lease or any renewal or extension thereof or for so long as Tenant shall
be in possession of the Demised Premises or any part thereof:
(a) any work or thing done or permitted to be done in, on or about the
Demised Premises and the Easements or any part thereof by Tenant, sublessees,
franchisees, licensees and any of their respective officers, directors, agents,
contractors, employees, and invitees;
(b) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises and the Easements or any part
thereof or any alley, sidewalk, curb, street, bridge, walkway, garage,
passageway or space adjacent thereto or any riverboat gaming enterprise
associated therewith for which Tenant is responsible hereunder;
(c) any negligent or intentional act or omission on the part of Tenant or
any of its agents, contractors, servants, employees, subtenants, licensees or
invitees;
(d) any accident, injury or damage to any person or property occurring in,
on or about or arising from the Demised Premises and the Easements or any part
thereof, or any alley, sidewalk, curb, street, bridge, walkway, passageway or
space adjacent thereto;
(e) any failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms, provisions, conditions or limitations contained in
this Lease and/or the Development Agreement, to be performed or complied with by
it; and/or
(f) any obligation of the Tenant or Tenant's contractors and/or their
subcontractors under workers' compensation laws or the laws of the federal
government or any state's government as to any employee benefits or any
employment related problems under ERISA or any other statutory liabilities, be
they state, local or federal.
Notwithstanding the foregoing, Tenant shall not be obligated hereunder with
respect to the liability or responsibility for any pre-existing environmental
conditions described in Section 8.02.3 hereof.
In case any action or proceeding is brought against Landlord or City by
reason of any such claim, Tenant, upon written notice from Landlord or City,
shall at Tenant's sole cost and expense resist and defend such action or
proceeding by counsel approved by Landlord in writing, which approval Landlord
agrees not to unreasonably withhold.
Landlord shall fully indemnify and save harmless Tenant and its agents,
servants, employees, officers and directors, with respect to any failure on the
part of Landlord to perform or comply with any of the covenants, agreements,
terms, provisions, conditions, or limitations contained in this Lease and/or the
Development Agreement, to be performed or complied with by Landlord and any and
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, and any and all suits and proceedings in connection therewith, even if
any such suit, claim or proceeding is false, groundless or fraudulent,
including, without limitation, reasonable architects', engineers', accountants',
expert witnesses' and attorneys' fees, which may be imposed upon or incurred by
or asserted against Tenant, its said agents, servants, officers, directors and
employees by reason of or arising in whole or in part from any such actual or
alleged matters, occurrences, events, transactions, acts and omissions during
the Term of this Lease or any renewal or extension thereof or for so long as
Tenant shall be in possession of the Demised Premises or any part thereof. In
case any action or proceeding is brought against Tenant by reason of any claim,
Landlord, upon written notice from Tenant, shall at Landlord's sole cost and
expense resist and defend such action or proceeding by counsel approved by
Tenant in writing, which approval Tenant agrees not to unreasonably withhold.
Neither Landlord nor the City shall be responsible or liable to Tenant, or to
those claiming by, through, or under Tenant, nor shall Landlord or the City be
required to protect, defend, indemnify or hold Tenant or any of such persons or
entities harmless from and against any loss or damage which may be occasioned by
or through Tenant or others (including Tenant's business invitees), as a result
of the occupancy or use of the Demised Premises and the Easements or any damage
or injury of any nature whatsoever, including, without limitation, any loss or
damage which arises from any defect in or failure of or danger in connection
with the Demised Premises and the Easements or any improvement thereon or
adjacent thereto, or any utility or other service furnished in connection
therewith all except as described in Section 8.02.3 hereof. Other than as
described in section 8.02.3 hereof, Tenant shall use and occupy the Demised
Premises and the Easements, and all parts thereof and make same available to its
business invitees and others at Tenant's sole risk and at no risk or liability
to Landlord or the City.
ARTICLE XV.
Damage or Destruction
Section 15.01 REPAIR/RESTORATION BY TENANT. In case of damage to or
------------------------------
destruction of any improvements now or hereafter existing on the Demised
Premises and the Easements, including the Site Improvements as defined herein),
Tenant be obligated to repair and/or restore the same. If Tenant shall, as soon
as is practical after any such damage or destruction considering the extent
of the damage, commence repair and/or construction of a new building and/or
other improvements, as applicable, the proceeds of any insurance payable by
reason of such damage or destruction shall be paid to Tenant. If Tenant shall
fail to so commence such repair/construction and diligently pursue completion
within such period of time, such proceeds of insurance shall be the property of
and shall be paid to Landlord, except for proceeds payable with respect to
Tenant's Personalty and Fixtures. Notwithstanding the foregoing, Landlord shall
have all rights to direct use of payments made under insurance provided under
Section 5.02(b) hereof.
Section 15.02 NOTICE. In case of damage to or destruction of any
------
improvements on the Demised Premises and the Easements or any part thereof, by
fire or otherwise, Tenant shall promptly give written notice thereof to
Landlord, and Tenant shall, at Tenant's sole cost and expense, and whether or
not the insurance proceeds, if any, shall be sufficient for such purpose,
restore, repair, replace, rebuild or alter the same as nearly as possible to its
value immediately prior to such damage or destruction, with such changes or
alterations as may be made from time to time at Tenant's election, all in
conformity with and subject to the applicable terms and conditions hereof and of
the Development Agreement.
Section 15.03 NO RIGHT TO TERMINATE/SURRENDER. No destruction of or damage
-------------------------------
to the improvements on the Demised Premises and the Easements or any part
thereof, by fire or any other casualty, shall permit Tenant to surrender this
Lease or shall relieve Tenant from its liability to pay the full Minimum Net
Rent, Percentage Rent, Additional Rent, the Riverfront Park Grant and other
charges payable under this Lease or from any of its other obligations under this
Lease or under the Development Agreement, and Tenant waives all rights now or
hereafter conferred upon it by statute or otherwise to quit or surrender this
Lease or the Demised Premises or any part thereof or to cease its operations
hereunder or to any suspension, diminution, abatement or reduction of Rent on
account of any such destruction or damage.
ARTICLE XVI.
Condemnation
Section 16.01 TAKING. In the event that the Demised Premises or the
------
Easements, or any part thereof, shall be taken in condemnation proceedings or by
exercise of any right of eminent domain or by agreement between Landlord
and Tenant (any such matters being hereinafter referred to as a "taking"),
Landlord and Tenant shall have the right to participate in any such condemnation
proceedings or agreement for the purpose of protecting their interests
hereunder. Each party so participating shall pay its own expenses therein.
Section 16.02 SUBSTANTIAL/COMPLETE TAKING. If at any time during the term
---------------------------
of this Lease or any renewal or extension thereof there shall be a taking of the
whole or substantially all of the Demised Premises, this Lease shall terminate
and expire on the date of such taking and the Rent payable hereunder shall be
equitably apportioned and paid to the date of such taking and Tenant shall have
no further liability to Landlord under this Lease. For the purpose of this
Article, "substantially all of the Demised Premises" shall be deemed to have
been taken if (i) the untaken part of the Demised Premises and/or the Easements
shall be insufficient for the economic and feasible continued operation of the
riverboat gambling enterprise in connection therewith, or (ii) if the taken part
of the Demised Premises and/or Easements includes the Riverboat Gaming Facility.
Section 16.03 TERMINATION FROM TAKING. If this Lease shall have terminated
-----------------------
as a result of such taking:
As to all of any award (regardless of basis for the making of same), Tenant
shall be entitled to that portion of the award which is equivalent to a fraction
in which the numerator is equal to the number of years remaining in the initial
Term (and any potential renewal term) and the denominator is fifty (50) years
("Tenant's Award") and Landlord shall be entitled to the remainder of such
award, provided however that in no event shall Landlord's share of such award be
less than that amount of money required to retire all then outstanding bonds
secured by Landlord's interest in this Lease, on the earliest redemption date to
occur after termination of this Lease. Provided further such minimum Landlord's
share shall not exceed the total principal interest and redemption premium, if
any, that would have been due and owing as of the next redemption date under the
first occurring Bond Issuance contemplated and described in Section 2.14 of this
Lease.
Section 16.04 PARTIAL TAKING. If this Lease shall not have been terminated
--------------
as above provided and shall continue after the taking, then in such event all of
the Award (regardless of the basis for the making of same) shall be
distributed as follows:
(a) Tenant shall be tendered that portion of the award received for all
purposes (including land acquisition) of replacing, improving or making usable
any improvement on or adjacent to the Demised Premises that needs replacement or
alteration or improvement as a result of the taking; and
(b) The remainder of the Award shall be divided between Landlord and Tenant
as set forth in Section 16.03 above, except that the provisions therein for
Landlord's minimum share respecting outstanding bonds shall not apply.
Notwithstanding the foregoing, in the event of exercise of power of eminent
domain by the Missouri Highway Transportation Department ("MHTD") or a successor
thereof, of all or part of Parking Parcel A as that term is defined in that
certain Cooperative Agreement between the City, Landlord and Tenant dated July
31, 1995, Tenant and Landlord shall not be entitled to damages for such taking
and in such event the parties shall modify this Lease as therein provided.
Section 16.05 EASEMENT TYPE TAKING. In the event of the taking of an
----------------------
easement or any other taking which shall be of an interest or estate in the land
less than a fee simple, as a result of which the Demised Premises shall be
insufficient for the economic and feasible continued operation of its business
thereon by Tenant, this Lease shall terminate and expire with the same force and
effect as in the case of a taking pursuant to Section 16.03 hereof. Otherwise,
such taking shall be deemed a taking insufficient to terminate this Lease and
the division of the award shall be governed by Section 16.04 in so far as that
Section shall be applicable; provided, however, that if there shall be any
payment or award predicated on a change in the grade of a street or avenue on
which the Demised Premises abut, Tenant shall be entitled, after making such
change in restoration as may be necessary and appropriate by reason of such
change of grade, to reimbursement for the expense thereof to the extent of the
net amount of any payment or award, after deduction of costs of collection,
including, without limitation, attorneys' fees and expenses, which may be
awarded for such change of grade. Any part of an award for change of grade
which shall remain unexpended after such restoration shall be the property of
Landlord. If any award shall include change of grade and any other item or
element of damage, that part thereof shall be applied in accordance with this
Section 16.05 which shall be specifically attributed to change of grade by the
condemnation award or, if not so attributed, shall be determined by agreement
between the parties.
ARTICLE XVII.
Assignments, Mortgages and Subleases of Tenant's Interest
Except as specifically provided herein and in the Development Agreement,
Tenant, and its permitted successors and assigns, shall have the right to
assign, sublet, mortgage, encumber or otherwise affect this Lease or any
interest therein, with the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Landlord's withholding of such consent
shall be deemed reasonable hereunder unless Tenant and its proposed assignee
comply with requirements substantially similar to those set forth in Section
18.04 B viii, (b) and (c) herein.
With the prior written consent of Landlord, not to be unreasonably withheld or
delayed, Tenant shall have the right to enter into sublease, license, franchise
and concessionaire agreements with persons or entities to operate various types
of ancillary and/or supporting business enterprises to Tenant's gaming business
enterprise at the Demised Premises including, without limitation, those for the
serving of food and beverages.
No assignment or sublease, even if so consented to, shall be effective unless
and until Landlord shall have received an executed counterpart of such
assignment or sublease, in recordable form, under which the assignee shall have
assumed all obligations of Tenant under this Lease and shall specifically agreed
to perform and observe the covenants and conditions in this Lease contained on
Tenant's part to be performed and observed.
Notwithstanding the foregoing, Landlord acknowledges that Tenant is obligated
under provisions of the Development Agreement to cause its riverboat gaming
enterprise to be conducted by an enterprise which is ninety percent (90%) owned
by Tenant and ten percent (10%) owned by minority interests. To the extent
necessary to enable such joint venture to so operate, Tenant may assign its
interest hereunder (but specifically without relieving it of any obligation or
liability hereunder), provided, however, that such enterprise is formed pursuant
to the minority ownership requirements of the Development Agreement and/or any
Exhibit thereto and that on the Opening Date and for a period equal to the
lesser of (i) five (5) years after the date hereof, or (ii) three (3) years
after the Opening Date, and such enterprise shall in fact be ten percent (10%)
minority owned. Tenant further agrees that said ten percent (10%) minority
interest shall be such that such minority interest in the aggregate shall enjoy,
receive and benefit from its aggregate ten percent (10%) ownership interest in
the riverboat gaming enterprise herein provided for.
Landlord shall have the right to, or to allow City to, convey, assign, pledge,
encumber or mortgage any part of its respective interest in the Demised Premises
and/or this Lease, specifically including but not being limited to any
assignment by Landlord to a third party bond trustee, as security for bonds
issued by Landlord and secured by this Lease so long as any such transfer is not
to any person or party in direct competition with Tenant, and, in the event of a
pledge, encumbrance or mortgage, such mortgagees(s) and Tenant enter into a
Non-Disturbance and Attornment Agreement in standard form reasonably
satisfactory to Tenant. Tenant may pledge, encumber or mortgage its leasehold
estate or any part thereof so long as any such transfer is subordinate to the
City's and to Landlord's (or its mortgagee's) estates and provided further that
Landlord and any such mortgagee(s) shall enter into a Non--Disturbance and
Attornment Agreement in standard form reasonably satisfactory to Landlord and
the City.
ARTICLE XVIII.
Default
Section 18.01 "EVENT OF DEFAULT" BY TENANT DEFINED. Any one or more of the
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following events shall constitute an "Event of Default" by Tenant hereunder:
(a) The sale, assignment or other transfer of all or any of Tenant's
interest in this Lease and/or the Demised Premises or any portion thereof (other
than as is permitted under Article XVII hereof) voluntarily, or under
attachment, execution or similar legal process, or if Tenant is adjudicated as
bankrupt or insolvent under any state bankruptcy or insolvency law and such
adjudication or order is not vacated within ninety (90) days and Tenant is not
otherwise in default hereunder.
(b) The commencement of a case under any chapter of the Federal Bankruptcy
Code by or against Tenant or any operating entity of Tenant's riverboat gaming
enterprise ("Operator") in connection with the Demised Premises or any portion
thereof, or the filing of a voluntary or involuntary petition thereunder
proposing the adjudication of Tenant or Operator as bankrupt or insolvent, or
the reorganization of Tenant, or Operator or an arrangement by Tenant or any
such Operator with its creditors, unless the petition filed or case commenced is
withdrawn or dismissed within ninety (90) days after the date of its filing and
Tenant is not otherwise in default hereunder.
(c) The appointment of a receiver or trustee for the business or property of
Tenant or any such Operator, unless such appointment shall be vacated within
ninety (90) days of its entry.
(d) The making by Tenant or any such Operator of an assignment for the
benefit of its creditors, or if in any other manner Tenant's interest in this
Lease shall pass to another person, firm or entity by operation of law except a
merger or reorganization of Tenant in which Tenant shall be the survivor and/or
the same persons or entities in control of Tenant shall remain in control of
such merged or reorganized entity.
(e) The failure of Tenant to pay any portion of properly due Rent within
five (5) days after the giving of notice thereof by Landlord that the same is
due hereunder. Tenant's failure to pay Percentage Rent greater than the Minimum
Net Rent shall not be sufficient ground for termination of this Lease by
Landlord if such failure is the result of a bona fide dispute as to the amount
due and payable and Tenant promptly pays any Percentage Rent underpayment with
interest at the Interest Rate from the due date until paid upon resolution of
such dispute.
(f) Material default by Tenant in the performance or observance of any
covenant or agreement of this Lease (other than a default involving the payment
of Rent), or any obligation of Tenant under the Development Agreement or any
Exhibit thereto, which default is not cured within ten (10) days after the
giving of notice thereof by Landlord, unless such default is of such nature that
it cannot reasonably be cured within such ten (10) day period, in which case no
Event of Default shall occur so long as Tenant shall commence the curing of the
default within such ten (10) day period and shall thereafter diligently
prosecute the curing of same; provided, however, if Tenant shall default in the
performance of any such covenant or agreement of this Lease, the Development
Agreement or any Exhibit thereto two (2) or more times in any twelve (12) month
period, then notwithstanding that each of such defaults shall have been cured by
Tenant, any further default of such covenant or agreement within such twelve
(12) month period shall be deemed an Event of Default without the ability for
cure.
(g) The vacation or abandonment of the Demised Premises at any time after
the Commencement Date by Tenant except a vacation or abandonment permitted under
Section 2.06 hereof.
(h) The occurrence of any other event described as constituting an '"Event
of Default" elsewhere in this Lease or the Development Agreement or any Exhibit
thereto and the continuation of such an Event of Default after the expiration of
any cure period provided herein or therein.
Section 18.02 REMEDIES. Upon the occurrence of an Event of Default and the
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continuation of any such Event of Default after the expiration of any applicable
cure period provided for herein, Landlord, without further notice to Tenant
in any instance (except as expressly provided for below), may do any one or more
of the following:
(a) With or without judicial process, enter the Demised Premises and take
possession thereof without the necessity of legal proceedings, and remove Tenant
and all other persons and property from the Demised Premises, and may store
such property in a public warehouse or elsewhere at the cost of and for the
account of Tenant without resort to legal process and without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage occasioned
thereby; and Landlord may, from time to time without terminating this Lease,
make such alterations and repairs as may be necessary to relet the Demised
Premises or any portion thereof, alone or together with other premises, on
behalf of Tenant and for such term or terms (which may be greater or less than
the period which otherwise would have constituted the balance of the Term or any
then validly exercised renewal thereof) and on such terms and conditions (which
may include concessions or free rent and alteration of the Demised Premises) as
Landlord, in its sole discretion, may determine, but Landlord shall not be
liable for, nor shall Tenant's obligations under this Lease be diminished by
reason of, any failure by Landlord to relet the Demised Premises or any failure
by Landlord to collect any rent due upon such reletting so long as Landlord has
reasonably attempted to mitigate damages as required in Section 18.10. No such
re-entry or the taking of possession of the Demised Premises or any portion
thereof by Landlord shall be construed as an election on its part to terminate
this Lease or to accept a surrender thereof unless a written notice of such
intention be given to Tenant. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach and receive, in addition to any other damages which it
may be entitled, the Default/Termination Damages defined in 18.03 of this Lease
and, in addition, the "Liquidated Damages" described in 18.03(ii) of this Lease;
or
(b) Perform, on behalf and at the expense of Tenant, any obligation of
Tenant under this Lease which Tenant has failed to perform and of which Landlord
shall have given Tenant notice, the cost of which performance by Landlord,
together with interest thereon at the Interest Rate from the date of such
expenditure, shall be deemed Additional Rent and shall be payable by Tenant to
Landlord upon demand. Notwithstanding the provisions of this clause (b) and
regardless of whether an Event of Default shall have occurred, Landlord may
exercise the remedy described in this clause (b) without any notice to Tenant if
Landlord, in its good faith judgment, believes it would be materially injured by
failure to take rapid action or if the unperformed obligation of Tenant
constitutes an emergency; or
(c) Elect to terminate this Lease and the tenancy created hereby by giving
written notice of such election to Tenant, and reenter the Demised Premises and
the Easements, without the necessity of legal proceedings, and remove Tenant and
all other persons and property from the Demised Premises and the Easements, and
may store such property in a public warehouse or elsewhere at the cost and for
the account of Tenant without resort to legal process and without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage occasioned
thereby; or
(d) Exercise any other legal or equitable right or remedy which it may have.
(e) Notwithstanding anything to the contrary contained above or elsewhere
herein or as provided by law or equity generally, in recognition of the major
investment in Site Improvements, grants and fundings to be made by Tenant for
Landlord's benefit as set out herein or in the Development Agreement, Landlord
agrees that after the Commencement Date, it will only elect the remedies of
dispossessing Tenant or terminating this Lease as a last resort in the event
that Tenant has materially failed to perform its obligations hereunder and
Tenant has failed to compensate Landlord for all reasonable damages and costs
caused Landlord by such breach(es) so long as Tenant in good faith is continuing
to operate the riverboat gaming enterprise in substantially the manner
contemplated herein.
All costs and expenses incurred by Landlord (including, without limitation,
reasonable attorneys' fees) in enforcing any of its rights and remedies under
this Lease shall be deemed to be Additional Rent and shall be paid to Landlord
by Tenant upon demand.
Section 18.03 DAMAGES.
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Whether or not this Lease is terminated by Landlord pursuant to Section
18.02 hereof, upon the occurrence of an Event of Default and the continuation of
any such Event of Default after the expiration of any applicable cure period
provided for herein, Tenant shall in all events nevertheless remain liable for
(a) any Rent, any installment of the Riverfront Park Grant (the "Grant"), any
damages which may be due or sustained prior to the last to occur of the date
upon which an Event of Default occurs or the date of expiration of any
applicable cure period with respect to such Event of Default, including damages
under Section 2.06 hereof, and, in addition, all reasonable costs, fees and
expenses, including, but not limited to, reasonable attorneys' fees, costs and
expenses, incurred by Landlord in pursuit of its remedies hereunder, and in
renting the Demised Premises and the Easements or any portion thereof to others
from time to time (all such Rent, Grant, damages, costs, fees and expenses being
referred to herein as "Default/ Termination Damages"), and (b) in the event
Landlord shall attempt to relet or shall relet all or any portion of the Demised
Premises or in the event that this Lease shall be terminated, additional damages
(the "Liquidated Damages"), which, at the election of Landlord, shall be as
follows:
(i) in the event that Landlord has not exercised its right to terminate this
Lease, an amount equal to the Rent which would have become due during the
remainder of the Term or any exercised renewal thereof, less the amount of rent,
additional rent, grant, and other sums, if any, which Landlord shall receive
during such period from others to whom the Demised Premises and/or any portion
thereof may be rented (other than any rent or other sum received by Landlord as
a result of any failure of such other person or entity to perform any of its
obligations to Landlord), in which case such Liquidated Damages shall be
computed and payable in monthly installments, in advance, on the first day of
each calendar month following the occurrence of an uncured Event of Default
under this Lease and continuing until the date on which the Term (or any
exercised renewal thereof with no automatic renewals to occur thereafter) is due
to expire, and any suit or action brought to collect any such Liquidated Damages
for any month shall not in any manner prejudice the right of Landlord to collect
any Liquidated Damages for any subsequent month by a similar proceeding or be
deemed to require repeated lawsuits hereunder; or
(ii) if Landlord shall at any time exercise its right to terminate this
Lease, an amount equal to the present worth (as of the date of such termination)
of Rent and Grant which, but for such termination of this Lease, would have
become due during the remainder of the Term (or any exercised renewal thereof),
less the fair rental value of the Demised Premises for the remainder of the Term
(or any exercised renewal thereof) with no automatic renewals to occur
thereafter, as determined by an independent appraiser named by the presiding
judge of the Circuit Court of Xxxxxxx County, Missouri, in which case such
Liquidated Damages shall be payable to Landlord in one lump sum on demand and
shall bear interest at the Interest Rate until paid. For purposes of this
clause (ii), "present worth" shall be computed by discounting such amount to
present worth at a discount rate equal to the Interest Rate.
If an uncured Event of Default shall take place after the expiration of two
or more years after the Opening Date, then, for purposes of computing the
Liquidated Damages, the Percentage Rent payable with respect to each calendar
year or portion thereof following such uncured Event of Default (including the
balance of the year in which such uncured Event of Default shall take place)
shall be conclusively presumed to be equal to the average Percentage Rent
payable with respect to each complete year preceding such uncured Event of
Default. If such uncured Event of Default shall take place before the
expiration of two years after Opening Date, then, for purposes of computing the
Liquidated Damages, the Percentage Rent payable with respect to each calendar
year or portion thereof following such uncured Event of Default (including the
balance of the calendar year in which such uncured Event of Default shall take
place) shall be conclusively presumed to be equal to twelve (12) times the
average monthly amount of Percentage Rent which was due and payable prior to
such uncured Event of if no Percentage Rent shall have been payable during such
period, then the Percentage Rent for each year of the unexpired Term shall be
conclusively presumed to be a sum equal to that described in Section 2.06 as if
there had been a failure of Tenant to operate its riverboat gaming enterprise.
Default/Termination Damages shall be due and payable immediately upon demand by
Landlord following any uncured Event of Default of this Lease pursuant to
Section 18.02. Liquidated Damages shall be due and payable at the times set
forth herein.
Nothing contained in this Lease shall limit or prejudice the right of Landlord
to prove for and obtain, in proceedings for the termination of this Lease by
reason of bankruptcy or insolvency, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above. The failure or refusal of Landlord to relet the Demised Premises or any
part or parts thereof shall not release or affect Tenant's liability for damages
hereunder so long as Landlord has reasonably attempted to mitigate damages as
required in Section 18.10.
Section 18.04 REMEDIES IN EVENT OF BANKRUPTCY OR OTHER PROCEEDING.
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A. Anything contained herein to the contrary notwithstanding, if termination
of this Lease shall be stayed by order of any court having jurisdiction
over any proceeding described in paragraph (b) of Section 18.01, or by federal
or state statute, then, following the expiration of any such stay, or if Tenant
or Tenant as debtor-in-possession or the trustee appointed in any such
proceeding (being collectively referred to as "Tenant" only for the purposes of
this Section 18.04) shall fail to assume Tenant's obligations under this Lease
within the period prescribed therefor by law or after entry of the order for
relief or as may be allowed by the court, or if Tenant shall fail to provide
adequate protection of Landlord's right, title and interest in and to the
Demised Premises or adequate assurance of the complete and continuous future
performance of Tenant's obligations under this Lease, then Landlord, to the
extent permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease,
without written notice to Tenant, and upon the effective date of such
termination, this Lease shall cease and expire as aforesaid and Tenant shall
immediately quit and surrender the Demised Premises as aforesaid. Upon the
termination of this Lease as provided above, Landlord, without notice, may
re-enter and repossess the Demised Premises using such force for that purpose as
may be necessary without being liable to indictment, prosecution or damages
therefor dispossess Tenant by summary proceedings or otherwise.
B. For the purposes of the preceding paragraph (a), adequate protection of
Landlord's right, title and interest in and to the Demised Premises, and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, shall include, without limitation, the following
requirements:
(i) that Tenant comply with all of its obligations under this Lease;
(ii) that Tenant pay to Landlord, on the first day of each month occurring
subsequent to the entry of such order, or the effective date of such stay, a sum
equal to the amount by which the Demised Premises diminished in value
during the immediately preceding monthly period, but, in no event, an amount
which is less than the aggregate Rent payable for such monthly period;
(iii) that Tenant continue to use the Demised Premises in the manner and for
the purposes originally required by this Lease;
(iv) that Landlord be permitted to supervise the performance of Tenant's
obligations under this Lease;
(v) that Tenant pay to Landlord within fifteen (15) days after entry of
such order or the effective date of such stay, as partial adequate protection
against future diminution in value of the Demised Premises and adequate
assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, a security deposit in an amount reasonably
acceptable to Landlord;
(vi) that Tenant has and will continue to have unencumbered assets after
the payment of all secured obligations and administrative expenses adequate to
assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease;
(vii) that if Tenant assumes this Lease and proposes to assign the same
(pursuant to Title 11 U.S.C. 365, or as the same may be amended) to any person
or entity who/which shall have made a bona fide offer to accept an assignment of
this Lease on terms acceptable to such court having competent jurisdiction over
Tenant's estate, then notice of such proposed assignment, setting forth (x) the
name and address of such person or entity, (y) all of the terms and conditions
of such offer, and (z) if required by law or by any court, the adequate
assurance to be provided Landlord to assure such person's or entity's future
performance under this Lease, including, without limitation, the assurances
referred to in Title 11 U.S.C. S365(b)(3) , as it may be amended, shall be given
to Landlord by Tenant no later than fifteen (15) days after receipt by Tenant of
such offer, but in any event no later than thirty (30) days prior to the date
that Tenant shall make application to such court for authority and approval to
enter into such assignment and assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept, or to cause
Landlord's designee to accept, an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person or entity, less any brokerage commissions which may be
payable out of the consideration to be paid by such person or entity for the
assignment of this Lease; and
(viii) that if Tenant assumes this Lease and proposes to assign the same,
and Landlord does not exercise its option pursuant to paragraph (vii) of this
Section 18.04, Tenant hereby agrees that:
a. such assignee shall have a net worth not less than the net worth of
Tenant as of the Opening Date, or such Tenant's obligations under this Lease
shall be unconditionally guaranteed by a person or an entity having a net worth
equal to Tenant's net worth as of the Opening Date;
b. such assignee shall not use the Demised Premises except subject to all
restrictions contained in this Lease;
c. such assignee shall assume in writing all of the terms, covenants and
conditions of this Lease including, without limitation, all of such terms,
covenants and conditions respecting the permitted use and payment of Rent, and
such assignee shall provide Landlord with assurances satisfactory to Landlord
that it has the experience in operating gaming enterprises similar to that to be
conducted by Tenant hereunder, sufficient to enable it to so comply with all of
the terms, covenants and conditions of this Lease and successfully operate the
Demised Premises for such use; and
d. if such assignee makes any payment to Tenant, or for Tenant's account,
for the right to assume this Lease (including, without limitation, any lump sun
payment, installment payment or payment in the nature of rent over and above the
Rent payable under this Lease), Tenant shall pay over to Landlord one-quarter
(1/4) of any such payment.
Section 18.05 CONTINUED OBLIGATION.
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A. No expiration or termination of this Lease or relief sought or obtained
by Landlord or Tenant hereunder relieve Tenant or Landlord, as the case may be,
of its liability and obligations under this Lease, and such liability and
obligations shall survive any such expiration or termination or enforcement or
attempted enforcement of relief hereunder.
B. In the event that the Demised Premises or any part thereof be re-let by
Landlord for the unexpired term of this Lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, then the amount
of rent reserved upon such re-letting shall, prima facie, be the fair and
----- -----
reasonable rental value for the part or the whole of the Demised Premises so
re-let during the term of the re-letting. Nothing herein contained shall limit
or prejudice the right of Landlord to prove for and obtain, as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in affect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Section 18.06 WAIVER BY TENANT. Tenant hereby expressly waives, so far as
-----------------
permitted by law, the service of any notice of intention to re-enter provided
for in any statute and, except as is herein otherwise provided, Tenant, for and
on behalf of itself and all persons and entities claiming through or under
Tenant (including any leasehold mortgagee or other creditor), also waives any
and all right of redemption or re-entry or re-possession in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge or in case
of re-entry or re-possession by Landlord or in case of any expiration or
termination of this Lease. The terms "enter", "re-enter", "entry" or "re-entry"
as used in this Lease are not restricted to their technical legal meanings.
Section 18.07 NO WAIVER BY LANDLORD OR TENANT. No failure by Landlord or
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Tenant to insist upon the strict performance of any agreement, term, covenant or
condition hereof or to exercise any right or remedy upon a breach of any
agreement, term, covenant or condition hereof, and no acceptance of full or
partial Rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied with
by Tenant or Landlord, and no breach thereof, shall be waived, altered or
modified except by a written instrument executed by the non-breaching party. No
waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant and condition hereof shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
Section 18.08 INJUNCTION. In the event of any breach or threatened breach
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by Tenant or Landlord of any of the agreements, terms, covenants or conditions
contained in this Lease, Tenant or Landlord, as the case may be, shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though other remedies were not provided for in this Lease.
Section 18.09 CUMULATIVE RIGHTS. Each right and remedy provided to Landlord
-----------------
or Tenant in this Lease shall be cumulative and shall be in addition to every
other right or remedy provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
Section 18.10 MITIGATION. While Landlord shall be entitled to pursue each
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and every remedy hereunder as provided above, Landlord shall have the obligation
to use reasonable best efforts to mitigate its damages hereunder by seeking a
new tenant after Landlord has terminated this Lease.
Section 18.11 DEFAULT BY LANDLORD; TENANT REMEDIES. Should Landlord
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materially default in the performance or observance of any covenant or agreement
of this Lease, or any obligation of Landlord under the Development Agreement or
any Exhibit thereto, which default is not cured within ten (10) days after the
giving of notice thereof by Tenant, unless such default is of such a nature that
it cannot reasonably be cured within such ten (10) day period, in which case no
default by Landlord shall occur so long as Landlord shall commence the curing of
the default within such ten (10) day period and shall thereafter diligently
prosecute the curing of same; provided, however, if Landlord shall default in
performance of any such covenant or agreement of this Lease, the Development
Agreement or any Exhibit thereto two (2) or more times in any twelve (12) month
period, then notwithstanding that each of such defaults shall have been cured by
Landlord, any further default of such covenant or agreement within such twelve
(12) month period shall be deemed a default without cure thereof. If Landlord
does not timely cure such a default, Tenant shall have such legal and equitable
remedies as are provided by law for such a default.
All costs and expenses incurred by Tenant (including without limitation
reasonable attorneys' fees) in enforcing any of its rights or remedies under
this Lease shall be paid to Tenant by Landlord upon demand.
ARTICLE XIX.
Renewal Privileges
Section 19.01 EIGHT RENEWAL TERMS. If this Lease shall be in force and
---------------------
effect on the date for the expiration of the initial term hereof, Tenant shall
automatically be deemed to have elected a renewal of the term hereby granted for
a period of five (5) years beginning with the date of such expiration of
such initial term, provided, however, that Tenant shall not have given Landlord
at least twelve (12) months prior written notice negating such election. If
this Lease shall be in force and effect on the date for the expiration of the
first renewal term hereof, Tenant shall automatically be deemed to have elected
a second renewal of the term hereby granted for a period of five (5) years
beginning with the date of such expiration of the first renewal term, provided,
however, that Tenant shall not have given Landlord at least twelve (12) months
prior written notice negating such election. If this Lease shall be in force and
effect on the date for the expiration of the second renewal term thereof, Tenant
shall automatically be deemed to have elected a third renewal of the term hereby
granted for a period of five (5) years beginning with the date of such
expiration of the second renewal term, provided, however, that Tenant shall not
have given Landlord at least twelve (12) months prior written notice negating
such election. If this Lease shall be in force and effect on the date for the
expiration of the third renewal term thereof, Tenant shall automatically be
deemed to have elected a fourth renewal of the term hereby granted for a period
of five (5) years beginning with the date of such expiration of the third
renewal term, provided, however, that Tenant shall not have given Landlord at
least twelve (12) months prior written notice negating such election. If this
Lease shall be in force and effect on the date for the expiration of the fourth
renewal term thereof, Tenant shall automatically be deemed to have elected a
fifth renewal of the term hereby granted for a period of five (5) years
beginning with the date of such expiration of the fourth renewal term, provided,
however, that Tenant shall not have given Landlord at least twelve (12) months
prior written notice negating such election. If this Lease shall be in force
and effect on the date for the expiration of the fifth renewal term hereof,
Tenant shall automatically be deemed to have elected a sixth renewal of the term
hereby granted for a period of five (5) years beginning with the date of such
expiration of the fifth renewal term, provided, however, that Tenant shall not
have given Landlord at least twelve (12) months prior written notice negating
such election. If this Lease shall be in force and effect on the date for the
expiration of the sixth renewal term hereof, Tenant shall automatically be
deemed to have elected a seventh renewal of the term hereby granted for a period
of five (5) years beginning with the date of such expiration of the sixth
renewal term, provided, however, that Tenant shall not have given Landlord at
least twelve (12) months prior written notice negating such election. If this
Lease shall be force and effect on the date for the expiration of the seventh
renewal term hereof, Tenant shall automatically be deemed to have elected an
eighth renewal of the term hereby granted for a period of five (5) years
beginning with the date of such expiration of the seventh renewal term,
provided, however, that Tenant shall not have given Landlord at least twelve
(12) months prior written notice negating such election. Tenant acknowledges
that a provision of the charter of the City may impose a fifty (50) year limit
on the term of the City Lease, which limit may affect the length of the eighth
renewal of the term of this Lease. Tenant acknowledges and agrees that any
resulting limitation on the length of the eighth renewal only of the term of
this Lease shall not give rise to any claim of default under or invalidity of
this Lease or any extension hereof. This Lease shall not be deemed to be or
have been in force and effect on any date on which Tenant shall be in default
hereunder. Each such renewal term shall be upon the same terms and conditions
as contained herein for the initial term (and applicable renewal term(s)) except
for the diminishing of the number of renewal terms remaining as each such
renewal term expires and except that as to each such renewal term, the Minimum
Net Rent payable during same (in equal annual installments as to the Minimum Net
Rent) shall be increased from the Minimum Net Rent payable during the initial
term hereof by the percentage of change in the Consumer Price Index as of the
Opening Date to the Consumer Price Index as of the first day of any such renewal
term. For the purposes of this Section 19.01, the "Consumer Price Index" means
the Consumer 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 equals 100). If no such Index is then being published, as of the
first day of any such renewal term, 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 established before such date.
Section 19.02 NO WAIVER OR RELEASE. No renewal term hereunder shall be
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evidence of a waiver or release of any default or claim of either party hereto
against the other. Any unsatisfied claim of either party hereto against the
other under the terms of this Lease during the initial Term or any renewal term
shall survive and be deemed to be a similar default or claim under any
subsequent renewal term.
ARTICLE XX.
Representations and Warranties
Section 20.01 REPRESENTATIONS AND WARRANTIES OF LANDLORD. The following
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representations and warranties are hereby made by Landlord:
A. POWER AND AUTHORITY. Landlord is a body politic created and formed by
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the City of Kansas City, Missouri by virtue of the power granted to said City by
the laws of the State of Missouri and has the full authority and power to
enter into this Lease and to execute and deliver this Lease and to perform and
observe all of the terms, conditions and provisions of this Lease to be so
observed and performed by it and its said execution and delivery of this Lease
has been duly authorized by all necessary action required of it; and
B. NO CONFLICTS. Nothing herein agreed to by Landlord will conflict with or
------------
result in a breach of the terms and provisions or any existing law, rule,
regulation, contract, agreement, order of any court or governmental body; and
C. NO CONTRACT DEFAULTS. Landlord is not in default under any contract or
--------------------
agreement to which it is a party and which materially and adversely affects its
ability to enter into and perform its obligations hereunder; and
D. NO LITIGATION. There are no claims, suits or other proceedings
-------------
threatened or pending against Landlord which would materially and adversely
affect its ability to enter into and perform its obligations hereunder.
Section 20.02 REPRESENTATIONS AND WARRANTIES OF TENANT. The following
--------------------------------------------
representations and warranties are hereby made by Tenant:
A. POWER AND AUTHORITY. Tenant is a corporation duly organized and validly
--------------------
existing and in good standing under the laws of the State of Delaware and is
qualified to do business in the State of Missouri and has the full authority and
power to enter into this Lease and to execute and deliver this Lease and to
perform and observe all the terms, conditions and provisions hereof to be so
observed and performed by it and its execution and delivery of this Lease has
been duly authorized by all necessary corporate action on its part. (A copy of
the Resolution of its Board of Directors so authorizing the same is attached
hereto identified as Exhibit C.); and
B. NO CONFLICTS. Nothing herein agreed to by Tenant will conflict with or
------------
result in a breach of the terms and provisions of any existing law, rule,
regulation, contract, agreement, order of any court or governmental body; and
C. FINANCIAL CONDITION. Tenant is solvent and is not a party to any
-------------------
assignment for the benefit of its creditors or any bankruptcy proceedings, and
the transaction contemplated herein shall not cause it to become insolvent or
not be able to pay its debts as the same become due; and
D. NO CONTRACT DEFAULTS. Tenant is not in default under the terms of any
--------------------
contract or agreement to which it is a party and which materially and adversely
affects its ability to perform its obligations hereunder; and
E. NO LITIGATION. There are no claims, suits or other proceedings
-------------
threatened or pending against Tenant which materially and adversely affect its
ability to perform its obligations hereunder.
ARTICLE XXI.
Invalidity of Particular Provisions
If any term or provision of this Lease or the application thereof to any
person or entity or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons, entities or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
ARTICLE XXII.
Notices
Any and all notices, demands, requests, submissions, approvals, consents,
disapprovals, objections, offers or other communications or documents required
to be given, delivered or served or which may be given, delivered or served
under or by the terms and provisions of this Lease or pursuant to law or
otherwise, shall be in writing and shall be deemed to have been duly given,
delivered or served; (i) if and when personally delivered or sent by verifiable
facsimile, on the date so delivered or sent, or (ii) three (3) days after being
mailed by registered or certified mail, postage prepaid, or (iii) one (1) day
after the giving of same to an overnight courier delivery service if sent by a
recognized overnight courier delivery service, costs prepaid, addressed if to
the Tenant, at:
Hilton Hotels Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
With copies to:
Hilton Hotels Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxx X. Xxxxxx
Lathrop & Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as Tenant may from time to time designate by written
notice to Landlord, or if to Landlord at:
Port Authority of Kansas City, Missouri
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Executive Director
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxxx
XxXxxxxx, Rice & Xxxxx, a Professional Corporation
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as Landlord may from time to time designate by written
notice to Tenant.
ARTICLE XXIII.
Rent Abatement/Claim for Damages
Except as in this Lease otherwise expressly prohibited Tenant shall have
such rights as are provided by Missouri law for abatement, diminution or
reduction of Rent or charges or other claim for damages based on any material
inconvenience, discomfort, interruption of business, loss or damage to
improvements to the Demised Premises or personal property thereon, or otherwise.
ARTICLE XXIV.
Estoppel Certificates
Section 24.01 TENANT'S CERTIFICATE. Tenant shall, without charge, at any
---------------------
time and from time to time, within ten days after request by Landlord, certify
by written instrument, duly executed, acknowledged and delivered to Landlord or
any other person, firm, entity or corporation specified by Landlord:
(a) that this Lease in unmodified and in full force and effect, or, if there
have been any modifications, that the same is in full force and effect as
modified and stating the modifications;
(b) whether or not there are then existing any set-offs or defenses against
the enforcement of any of the agreements, terms, covenants or conditions hereof
and any modifications hereof upon the part of Tenant to be performed or complied
with, and, if so, specifying the same;
(c) the dates, if any, to which the Minimum Net Rent, Percentage Rent and
Additional Rent and other charges hereunder have been paid in advance; and
(d) the date of expiration of the then current term;
(e) the Rent then payable under this Lease; and
(f) such other matters as Landlord shall reasonably request.
Section 24.02 LANDLORD'S CERTIFICATE. Landlord shall, without charge, at
-----------------------
any time and from time to time, within ten days after request by Tenant, certify
by written instrument, duly executed, acknowledged and delivered to Tenant,
to the effect that this Lease is unmodified and in full force and effect (of if
there shall have been modifications, that the same is in full force and effect
as modified and stating the modifications) and the dates to which the Rent has
been paid, the date of expiration of the current term, the Rent then payable
under this Lease, and stating whether or not, to the best knowledge of the
officer executing such certificate on behalf of Landlord, Tenant is in default
in performance of any covenant, agreement or condition contained in this Lease
and, if so, specifying each such default of which the person executing such
certificate may have actual knowledge and such other matters as Tenant shall
reasonably request.
ARTICLE XXV.
Miscellaneous
Section 25.01 GOVERNING LAW/VENUE. This Lease shall be governed by and
--------------------
construed in accordance with the internal laws of the State of Missouri. Venue
of any action brought pursuant to this Lease or any Exhibit hereto or arising
on, out of, under or by reason of or in any way relating to this Lease or the
landlord/tenant relationship created hereunder or the obligations arising out
of, under, or by reason of the Development Agreement or resulting from any other
transaction hereunder or thereunder or concerning the validity,
interpretation or enforcement hereof or thereof shall only be brought in (or, if
filed in a different venue, shall be transferred to) a State or Federal Court of
appropriate jurisdiction located in or having jurisdiction over Xxxxxxx County,
Missouri. Tenant waives any objection to the jurisdiction of or venue in any
such court, consents to transfer of venue to such court and to the service of
process issued by such court and agrees that each may be served by any method of
process described in the Missouri or Federal Rules of Civil Procedure. Tenant
waives any right to claim that any such court is an inconvenient forum or any
similar defense.
Section 25.02 CONFLICT AMONG PROVISIONS. In the event of a conflict between
-------------------------
or among the terms, covenants, conditions or provisions of this Lease and the
Development Agreement or any Exhibit to either of the same, if such conflict
relates to performance or payment prior to the Commencement Date (except as to
payment of Interim Rent), the provisions of the Development Agreement shall
prevail, but if such conflict relates to performance or payment after the
Commencement Date (except as to initial construction of improvements), the
provisions of this Lease shall prevail. Notwithstanding any statement in the
Development Agreement, the Proposal, the Exhibits to the Development Agreement
or the Lease, Tenant's total obligations liability with respect to the payment
of Minimum Rent and the Riverfront Park Grant shall be a total of Thirty Million
Dollars ($30,000,000.00) during the initial ten (10) year term hereof and
includes all grants of monies and Minimum Rent for Tenant is liable to Landlord
or any other party and which payments include all liability of Tenant for the
construction of or payment for infrastructure and improvements excluding the
Site Improvements as now defined in the Development Agreement and which are
fully stated and limited to those Site Improvements listed in Exhibits C and D
to the Development Agreement.
Section 25.03 INTEREST RATE. All sums due hereunder as Rent or otherwise
-------------
and whether due from Tenant to Landlord, or vice--versa, shall bear interest
from the date due until paid at a rate equal to 400 basis points (4%) over the
rate of one year United States Treasury obligations existing on the first day of
the month during which such sums become due, adjusted upward to reflect any
increase in such rate during the time any such sun remains unpaid (the "Interest
Rate").
Section 25.04 SPECIAL REPORTS. Tenant agrees to provide to Landlord, or to
---------------
such parties as Landlord shall as required in connection with and under the
terms of the Bond Issuance described in Section 2.14 of this Lease direct, such
information as is necessary to allow Landlord to satisfy the requirements of
Rule 15c2-12, as amended, of the Securities and Exchange Commission.
ARTICLE XXVI.
Consent of Landlord and Tenant
Section 26.01 STANDARD. Where any provision of this Lease requires the
--------
consent or approval of Landlord or Tenant, each agrees that such consent or
approval will not be unreasonably withheld unless otherwise specifically
provided for herein.
Section 26.02 OTHER ACTS. Each party agrees to perform any further acts and
----------
deliver any additional documents that may be reasonably requested by the other
and are necessary to carry out the provisions of this Lease.
ARTICLE XXVII.
Payments Under Protest
In case of any dispute between Landlord and Tenant with respect to the
amount of money payable by Tenant to Landlord under the provisions of this
Lease, Tenant shall be privileged to make payment under protest and, in such
event, shall be privileged to assert and prosecute a claim or claims for the
recovery of the sum, or any part thereof, that shall have been so paid by Tenant
under protest.
ARTICLE XXVIII.
No Oral Modification
All prior understandings and agreements between the parties are merged with
this Lease, which together with the Development Agreement and Exhibits to the
same, fully and completely set forth the understanding of the parties hereto;
and this Lease may not be changed or terminated orally or in any manner other
than by an agreement in writing and signed by the party against whom enforcement
of the change or termination is sought.
ARTICLE XXIX.
Covenants to Bind and Benefit Respective Parties
The covenants and agreements herein contained shall bind and inure to the
benefit of Landlord, its successors and assigns, and Tenant, and its permitted
successors and assigns.
ARTICLE XXX.
Captions, Table of Contents and Exhibits
Section 30.01 CAPTIONS. The captions, titles and headings of this Lease are
--------
for convenience and reference only and in no way define, limit or describe
the scope or intent of this Lease or any part thereof or in any way affect this
Lease.
Section 30.02 TABLE OF CONTENTS. The table of contents preceding this Lease
-----------------
but under the same cover is for the purpose of convenience and reference only
and is not to be deemed or construed in any way as part of this Lease, nor as
supplemental thereto or amendatory thereof.
Section 30.03 EXHIBITS. Each of the Exhibits hereto are by this reference
--------
made a part hereof as though fully set out herein.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed by their duly authorized officers and their respective corporate seals
to be hereunto affixed.
LANDLORD: THE PORT AUTHORITY OF KANSAS CITY, MISSOURI
By:
Name:
Title:
TENANT: HILTON HOTELS CORPORATION, a Delaware
corporation
By:
Name:
Title:
ACKNOWLEDGMENTS
STATE OF )
) S/S
COUNTY OF )
On this _____ day of ___________, 1995, before me appeared
to me personally known, who being by me duly sworn, did say that he/she is the
of The Port Authority of Kansas City, Missouri, a public Corporation, and said
acknowledged execution of the foregoing instrument to be the free act and deed
of said Port Authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal the day and year last above written.
Notary Public
My Commission Expires:
STATE OF )
) SS
COUNTY OF )
On this _____ day of ___________, 1995, before me appeared
to me personally known, who being by me duly sworn, did say that he/she is the
of Hilton Hotels Corporation, a Delaware Corporation, and said
acknowledged execution of the foregoing instrument to be the free act and deed
of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal the day and year last above written.
Notary Public
My Commission Expires:
EXHIBIT A
to
AMENDED AND RESTATED LEASE AGREEMENT
By and between THE PORT AUTHORITY OF KANSAS CITY, MISSOURI and HILTON
HOTELS CORPORATION, a Delaware corporation, as of the _____ day of August, 1995.
[Consisting of the attached 35 pages]
[Development Agreement]
EXHIBIT A
to
AMENDED AND RESTATED LEASE AGREEMENT
By and between THE PORT AUTHORITY OF KANSAS CITY, MISSOURI and HILTON
HOTELS CORPORATION, a Delaware corporation, as of the _____ day of August, 1995.
[Consisting of the attached 35 pages]
[Development Agreement]
FIRST ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
This Addendum to that certain Development Agreement dated the 12th day of
March, 1993, between Port Authority of Kansas City, Missouri ("Port Authority")
and Hilton Hotels Corporation ("River Queen") is effective this ____ day of
June, 1993, for the purposes of extending various dates by which Hilton and Port
Authority are to satisfy their respective contingencies and requirements under
the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements, and for other good and valuable consideration, sufficiency of which
is hereby acknowledged, the undersigned do hereby agree that:
1. River Queen and Port Authority agree that the following dates
respecting performance required by Hilton under the Agreement are extended as
follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility 8/31/93
Preliminary Plans and Specifications
and Development Budget
Raise Objections to Title Commitment 8/31/93
Respecting Sites A and B
Complete Surveys with Respect to Sites 8/31/93
A and B
Raise Objections to Survey Sites A and B 8/31/93
Conduct and Complete Analysis of Construction 8/31/93
Costs and Inspections Concerning Archeological,
Environmental and Geotechnical Issues ( 1.1b
of Development Agreement)
Right to Terminate Following Analysis of 8/31/93
Costs and Archeological, Environmental and
Title Reviews
IN WITNESS WHEREOF, this First Addendum to Development Agreement has been
executed as of the day and year first above written.
PORT AUTHORITY OF KANSAS CITY,
MISSOURI
By ,
(name) (title)
HILTON HOTELS CORPORATION
By ,
(name) (title)
SECOND ADDENDUM TO DEVELOPMENT AGREEMENT
----------------------------------------
This Second Addendum to that certain Development Agreement dated the 12th
day of March, 1993, between Port Authority of Kansas City, Missouri ("Port
Authority") and Hilton Hotels Corporation ("River Queen") is effective this ____
day of August, 1993, for the purposes of extending various dates by which Hilton
and Port Authority are to satisfy their respective contingencies and
requirements under the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements, and for other good and valuable consideration, sufficiency of which
is hereby acknowledged, the undersigned do hereby agree that:
1. River Queen and Port Authority agree that the following dates
respecting performance required by Hilton under the Agreement are extended as
follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans 9/30/93
and specifications and Development Budget
Raise Objections to Title Commitment 9/30/93
Respecting Sites A and B
Complete Surveys with Respect to Sites A and B 9/30/93
Raise Objections to Survey Sites A and B 9/30/93
Conduct and Complete Analysis of Construction 9/30/93
Costs and Inspections Concerning Archeological,
Environmental and Geotechnical Issues
( 1.1b of Development Agreement)
Right to Terminate Following Analysis of 9/30/93
Costs and Archeological, Environmental and
Title Reviews
Submit Final Critical Path 9/30/93
Submit Preliminary Plans and Specifications 9/30/93
for Site Improvements (to include requirement
in 4.1a)
Time Requirement Due Date
---------------- --------
Right to Terminate for Inability to Acquire 9/30/93
Boatmen's Site for $2,000,000
Request Condemnation of Additional Improvements 9/30/93
and Easements
2. Port Authority and River Queen hereby agree to extend the time of
Port Authority in which to perform certain tasks as follows:
Time Requirement Due Date
---------------- --------
Provide River Queen Sufficient Title 9/30/93
to Execute Contingencies Waiver Addendum
Provide Title Commitment With All Documents 9/30/93
for Sites A & B 9/30/93
Approval of Critical Path 9/30/93
Approval of Plans and Specifications for 9/30/93
Site Improvements
Cure Title Objections 9/30/93
Cure Survey Objections 9/30/93
Correct Environmental Problems on Site B 9/30/93
IN WITNESS WHEREOF, this Second Addendum to Development Agreement has been
executed as of the day and year first above written.
PORT AUTHORITY OF KANSAS CITY,
MISSOURI
By ,
(name) (title)
HILTON HOTELS CORPORATION
By ,
(name) (title)
THIRD ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
THIS ADDENDUM is made and entered into this 24th day of September, 1993, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
WHEREAS, on March 12, 1993, River Queen and Port Authority entered into
that certain Development Agreement which governs the development of certain real
property described on Exhibit B to said Development Agreement as the "Leased
Premises" and specifically includes the Boatmen's Property, as defined herein,
and all other necessary property acquired to be part of the Leased Premises
(hereinafter referred to as "Site B"); and
WHEREAS, in May and June, 1993, a total of three (3) underground storage tanks
were removed from that portion of Site B owned by the City of Kansas City,
Missouri; and
WHEREAS, the soils at and/or near the former underground storage tanks contain
petroleum-related contaminants; and
WHEREAS, the Development Agreement contractually obligates Port Authority to
spend up to Two Million Five Hundred Thousand Dollars ($2,500,000) as may be
necessary to remedy environmental contamination on Site B and deliver to River
Queen a sufficiently clean environmental site; and
9. All provisions of the Development Agreement inconsistent with this Third
Addendum are null and void and have no effect.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
Xxxxxx Xxxxxxxx , Chairman
--------------- --------
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
List of Exhibits
----------------
M. Bioremediation Plan
FOURTH ADDENDUM TO DEVELOPMENT AGREEMENT
----------------------------------------
THIS ADDENDUM is made and entered into this 31st day of October, 1993, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. River Queen and Port Authority agree that the following date respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 11/30/93
Complete Surveys with Respect to Sites A and B 11/30/93
Raise Objections to Survey Sites A and B 11/30/93
Conduct and Complete Analysis of Construction Completed
Costs and Inspections Concerning Archeological 09/23/93
Environmental and Geotechnical Issues
( 1.1b of Development Agreement) 11/30/93
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
Xxxxxx Xxxxxxxx , Chairman
--------------- --------
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal
this 10th day of November, 1993.
Notary Public
My Commission Expires:
June 22, 1994
-------------
FIFTH ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
THIS ADDENDUM is made and entered into this 30th day of November, 1993, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties hereto, the parties agree as follows:
1. River Queen and Port Authority agree that the following date respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 01/15/94
Complete Surveys with Respect to Sites A and B 01/15/94
Raise Objections to Survey Sites A and B 01/15/94
Conduct and Complete Analysis of Construction Completed
Costs and Inspections Concerning Archeological 09/23/93
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal this
6th day of December, 1993.
Notary Public
My Commission Expires:
SIXTH ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
THIS ADDENDUM is made and entered into this 14th day of January, 1994, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties hereto, the parties agree as follows:
1. River Queen and Port Authority agree that the following date respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 02/07/94
Complete Surveys with Respect to Sites A and B 02/07/94
Raise Objections to Survey Sites A and B 02/07/94
Conduct and Complete Analysis of Construction Completed
Costs and Inspections Concerning Archeological 09/23/93
Approval of Plans and Specifications for 02/07/94
Site Improvements
Cure Title Objections 02/07/94
Cure Survey Objections 02/07/94
Correct Environmental Problems on Site B 03/31/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal this
24th day of January, 1994.
Notary Public
My Commission Expires:
SEVENTH ADDENDUM TO DEVELOPMENT AGREEMENT
-----------------------------------------
THIS ADDENDUM is made and entered into this 7th day of February, 1994, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties hereto, the parties agree as follows:
1. River Queen and Port Authority agree that the following dates respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 03/07/94
Complete Surveys with Respect to Sites A and B 03/07/94
Raise Objections to Survey Sites A and B 03/07/94
Conduct and Complete Analysis of Construction Completed
Costs and Inspections Concerning Archeological 09/23/93
Approval of Plans and specifications for 03/07/94
Site Improvements
Cure Title objections 03/07/94
Cure Survey Objections 03/07/94
Correct Environmental Problems on Site B 03/31/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal
this 7th day of February, 1994.
Notary Public
My Commission Expires:
EIGHTH ADDENDUM TO DEVELOPMENT AGREEMENT
----------------------------------------
THIS ADDENDUM is made and entered into this 18th day of March, 1994, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and PORT
AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. River Queen and Port Authority agree that the following dates respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 04/15/94
Complete Surveys with Respect to Sites A and B 04/15/94
Raise Objections to Survey Sites A and B 04/15/94
Conduct and Complete Analysis of Construction Completed
Costs and Inspections Concerning Archeological 09/23/93
Approval of Plans and Specifications for 04/15/94
Site Improvements
Cure Title Objections 04/15/94
Cure Survey Objections 04/15/94
Correct Environmental Problems on Site B 04/15/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal this
17th day of March, 1994.
Notary Public
My Commission Expires:
NINTH ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
THIS ADDENDUM is made and entered into this 26th day of April, 1994, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and PORT
AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. River Queen and Port Authority agree that the following dates
respecting performance required by Hilton under the Agreement are extended as
follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 05/15/94
Complete Surveys with Respect to Sites A and B 05/15/94
Raise Objections to Survey Sites A and B 05/15/94
Approval of Critical Path 05/15/94
Approval of Plans and Specifications for 05/15/94
Site Improvements
Cure Title Objections 05/15/94
Cure Survey Objections 05/15/94
Correct Environmental Problems on Site B 05/15/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal this
26th day of April, 1994.
Notary Public
My Commission Expires:
TENTH ADDENDUM TO DEVELOPMENT AGREEMENT
---------------------------------------
THIS ADDENDUM is made and entered into this 13th day of May, 1994, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and PORT
AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. River Queen and Port Authority agree that the following dates respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 05/31/94
Complete Surveys with Respect to Sites A and B 05/31/94
Raise Objections to Survey Sites A and B 05/31/94
Approval of Critical Path 05/31/94
Approval of Plans and Specifications for 05/31/94
Site Improvements
Cure Title Objections 05/31/94
Cure Survey Objections 05/31/94
Correct Environmental Problems on Site B 05/31/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
ELEVENTH ADDENDUM TO DEVELOPMENT AGREEMENT
------------------------------------------
THIS ADDENDUM is made and entered into this 15th day of June,1994, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and PORT
AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. River Queen and Port Authority agree that the following dates respecting
performance required by Hilton under the Agreement are extended as follows:
Time Requirement Due Date
---------------- --------
Complete Site A Facility Preliminary Plans Submitted &
and Specifications and Development Budget Approved
09/23/93
Raise Objections to Title Commitment
Respecting Sites A and B 07/11/94
Complete Surveys with Respect to Sites A and B 07/11/94
Raise Objections to Survey Sites A and B 07/11/94
Approval of Critical Path 07/11/94
Approval of Plans and Specifications for 07/11/94
Site Improvements
Cure Title Objections 07/11/94
Cure Survey Objections 07/11/94
Correct Environmental Problems on site B 07/11/94
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly-authorized representatives as of the day and year first above
written.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
Xxxxxx X. Xxxxxx, Senior Vice
President - Development
TWELFTH ADDENDUMTO DEVELOPMENT AGREEMENT
----------------------------------------
THIS ADDENDUM is made and entered into this 15th day of September, 1994, by
and between HILTON HOTELS CORPORATION, a Delaware corporation, and its River
Queen Operating Assignee (jointly hereinafter referred to as "River Queen"), and
the PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
WHEREAS, on March 12, 1993, River Queen and Port Authority entered into that
certain Development Agreement which governs the development of certain real
property described on Exhibit B to said Development Agreement as the "Leased
Premises"; and
WHEREAS, River Queen and Port Authority have executed Addenda One through Eleven
which Addenda together with the original March 12, 1993 Development Agreement
and this Twelfth Addendum are herein collectively referred to as the
"Development Agreement" or the "Agreement"; and
WHEREAS, Port Authority and River Queen have determined to proceed to
development of Site A only because of changing regulatory requirements, changes
in the Missouri gaming laws, certain site constraints, and concern with
potential problems relating to environmental and archaeological issues at Site
B.
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
Improvements as now defined in the Development Agreement and which are fully
stated and limited to those Site Improvements listed in Exhibits C and D to the
----------------
Development Agreement.
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
THIRTEENTH ADDENDUM TO DEVELOPMENT AGREEMENT
--------------------------------------------
THIS ADDENDUM is made and entered into this 1st day of May, 1995, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and the
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
WHEREAS, on March 12, 1993, River Queen and Port Authority entered into that
certain Development Agreement which governs the development of certain real
property described on Exhibit B to said Development Agreement as the "Leased
Premises"; and
WHEREAS, River Queen and Port Authority have executed Addenda One through Twelve
which Addenda together with the original March 12, 1993 Development Agreement
and this Thirteenth Addendum are herein collectively referred to as the
"Development Agreement" or the "Agreement"; and
WHEREAS, River Queen and Port Authority have been unable to complete all
requirements necessary to satisfy the contingencies in the Development Agreement
but have diligently proceeded and made satisfactory progress toward satisfaction
thereof; and
WHEREAS, the Port Authority and River Queen desire to extend the Contingencies
Waiver Date and certain other dates of the Development Agreement to and
including July 31, 1995.
NOW, THEREFORE, in consideration of the representations and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties hereto, the
parties agree as follows:
1. Section 3.1(a) of the Development Agreement is hereby further amended to
provide that the Contingencies Waiver Date is hereby extended by agreement of
River Queen and Port Authority to and including July 31, 1995, and such date
shall hereafter be the Extended Contingencies Waiver Date.
2. All other dates extended to December 31, 1994 in the Twelfth Addendum
(for example, title, survey and permitting requirements) are hereby extended by
agreement of the Port Authority and River Queen to and including July 31, 1995.
3. River Queen and Port Authority agree the documents attached hereto as
"Exhibit D" be and hereby are substituted for existing "Exhibit D" (Site
-------- ---------
Improvements Plan) to the Development Agreement and shall hereafter be "Exhibit
-------
D" in all respects.
--
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
Xxxxxx X. Xxxxxx, Senior Vice
President - Development
FOURTEENTH ADDENDUM TO DVELOPMENT AGREEMENT
-------------------------------------------
THIS ADDENDUM is made and entered into this 31st day of July, 1995, by and
between HILTON HOTELS CORPORATION, a Delaware corporation, and its River Queen
Operating Assignee (jointly hereinafter referred to as "River Queen"), and the
PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public body corporate and politic
(hereinafter referred to as "Port Authority").
WITNESSETH:
WHEREAS, on March 12, 1993, River Queen and Port Authority entered into that
certain Development Agreement which governs the development of certain real
property described on Exhibit B to said Development Agreement as the "Leased
Premises"; and
WHEREAS, River Queen and Port Authority have executed Addenda One through
Thirteen which Addenda together with the original March 12, 1993 Development
Agreement and this Fourteenth Addendum are herein collectively referred to as
the "Development Agreement" or the "Agreement"; and
WHEREAS, River Queen and Port Authority have been unable to complete all
requirements necessary to satisfy the contingencies in the Development Agreement
but have diligently proceeded and made satisfactory progress toward satisfaction
thereof; and
WHEREAS, the Port Authority and River Queen desire to extend the Contingencies
Waiver Date and certain other dates of the Development Agreement to and
including August 15, 1995; and
PORT AUTHORITY OF KANSAS CITY, MISS0URI
By
Xxxxxx Xxxxxxxx, Chairman
HILTON HOTELS CORPORATION
By
Xxxxxx X. Xxxxxx, Senior Vice
President - Development
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BEFORE ME, a Notary Public in and for the County and State aforesaid,
personally appeared Xxxxxx X. Xxxxxxxx, Chairman of the PORT AUTHORITY OF KANSAS
CITY, MISSOURI, a public corporation, who is known to me to be the same person
who executed the foregoing instrument on behalf of said Port Authority, and
acknowledged the execution of the same as the free and voluntary act and deed of
said Port Authority.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my notarial seal this
4th day of August, 1995.
Notary Public
My Commission Expires:
EXHIBIT B
to
AMENDED AND RESTATED LEASE AGREEMENT
By and between THE PORT AUTHORITY OF KANSAS CITY, MISSOURI and HILTON HOTELS
CORPORATION, a Delaware corporation, as of the 21st day of August, 1995.
Description of Property
TRACT A-1
ALL THAT PART OF FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP 50
NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND CERTAIN
ACCRETED LAND, ALL IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIVER IN 1904 AND 1924, AND THE
EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B-5945, PAGE 310, AS DOCUMENT NO. B570825, DATED 5-11-1965;
THEN S19-47-42E ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 198.70 FEET TO THE
SOUTH RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD, AS RECORDED IN ORDINANCE
NO. 42446, DATED 3-30-1973, THE POINT OF BEGINNING ALSO BEING A POINT OF CURVE
OF A NONTANGENT CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 61-35-24 AND A
RADIUS OF 460.87 FEET, XXX XXXXXX XXXXX XXXXX X00-00-00X;
THEN SOUTHEASTERLY, SOUTHWESTERLY AND NORTHWESTERLY ALONG THE SOUTHEASTERLY
RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD, AS RECORDED IN ORDINANCE NO.
42446, DATED 3-30-1973 AND IN BOOK K436, AT PAGE 730, DATED 4-12-1973, UNDER
DOCUMENT NO. K-194186, THE FOLLOWING 8 COURSES:
1. SOUTHEASTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 495.41 FEET;
2. S52-31-32E, A DISTANCE OF 449.20 FEET TO A POINT OF CURVE OF A CURVE TO
THE LEFT HAVING A CENTRAL ANGLE OF 4-40-10 AND A RADIUS OF 580.87 FEET;
1. SOUTHEASTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 47.34 FEET;
2. S14-03-53E, A DISTANCE OF 155.67 FEET TO A POINT OF CURVE OF A NONTANGENT
CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 37-59-11 AND A RADIUS OF 460.87
FEET, THE RADIUS POINT BEARS N69-51-40W;
3. SOUTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 305.55 FEET;
4. S67-22-36W, A DISTANCE OF 248.91 FEET TO A POINT OF CURVE OF A NONTANGENT
CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 89-54-37 AND A RADIUS OF 140.19
FEET, THE RADIUS POINT BEARS N31-52-21W;
5. WESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 219.99 FEET;
6. N27-55-08W, A DISTANCE OF 60.58 FEET TO THE EAST RIGHT-OF-WAY LINE OF
U.S. INTERSTATE ROUTES 29 AND 35, ALSO BEING A POINT OF CURVE OF A NONTANGENT
CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF 12-47-05 AND A RADIUS OF 2059.86
FEET, THE RADIUS POINT BEARS S85-59-23W;
THEN NORTHERLY ALONG THE EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND
35 THE FOLLOWING 5 COURSES;
1. NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 459.63 FEET TO A
POINT THAT IS 150 FEET DISTANT NORTHEASTERLY FROM AND CONCENTRIC WITH U.S.
INTERSTATE ROUTES 29 AND 35 CENTERLINE, AND BEING A POINT OF CURVE OF A SPIRAL
CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF 3-00-00 AND AN INFINITE RADIUS;
2. NORTHWESTERLY ALONG THE ARC OF THAT SPIRAL CURVE, A DISTANCE OF 207.16
FEET, MORE OR LESS, TO A POINT BEING 150 FEET DISTANT NORTHEASTERLY FROM AND
CONCENTRIC WITH U.S. INTERSTATE ROUTES 29 AND 35 CENTERLINE;
3. N19-47-42W, A DISTANCE OF 109.38 FEET;
4. S70-12-18W, A DISTANCE OF 75.00 FEET;
5. N19-47-42W, A DISTANCE OF 12.31 FEET TO THE POINT OF BEGINNING.
CONTAINING 10.327 ACRES MORE OR LESS.
TRACT A-2
ALL THAT PART OF FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP 50
NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND CERTAIN
ACCRETED LANDS (PART OF THE LAND MAY ALSO LIE WITHIN PARTS OF LOTS 51 AND 52,
HURCK'S SUBDIVISION OF GUINOTTE BLUFF, ACCORDING TO THE RECORDED PLAT THEREOF)
ALL OF SAID LAND BEING IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIVER IN 1904 AND 1924, AND THE
EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B5945, PAGE 310 AS DOCUMENT NO. B570825, DATED 5-11-1965;
THEN N61-01-00E ALONG THAT HARBOR LINE A DISTANCE OF 1172.84 FEET TO THE
NORTHWESTERLY PROLONGATION OF THE WEST LINE OF A TRACT OF LAND CONVEYED TO THE
KANSAS CITY POWER AND LIGHT COMPANY BY BOOK B1942, PAGE 262, UNDER DOCUMENT NO.
1338778, AND BY BOOK B-4111, PAGE 36, UNDER DOCUMENT A-881822;
THEN S28-59-OOE ALONG THAT WEST LINE, A DISTANCE OF 1098.96 FEET;
THEN S48-39-06W, A DISTANCE OF 10.79 FEET TO THE POINT OF CURVE OF A CURVE TO
THE RIGHT HAVING A CENTRAL ANGLE OF 78-49-22 AND A RADIUS OF 460.87 FEET, BEING
A POINT ON THE NORTH RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD AS RECORDED
IN BOOK K436, PAGE 000, XXXXX XXXXXXXX XX. 000000;
THEN SOUTHWESTERLY AND NORTHWESTERLY ALONG THE NORTHEASTERLY RIGHT-OF-WAY OF
RELOCATED RIVER FRONT ROAD AS RECORDED IN BOOK K436, PAGE 730, DATED 4-12-1973,
AND IN ORDINANCE NO. 42446, DATED 3-30-1973, THE FOLLOWING 3 COURSES;
1 SOUTHWESTERLY WESTERLY AND NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A
DISTANCE OF 634.03 FEET;
2. N52-31-32W, A DISTANCE OF 449.20 FEET TO A POINT OF CURVE OF A CURVE TO
THE LEFT HAVING A CENTRAL ANGLE OF 60-41-46 AND A RADIUS OF 580.87 FEET;
3. NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 615.34 FEET TO
THE EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35;
THEN N19-47-42W, ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 78.43 TO THE POINT
OF BEGINNING;
CONTAINING 17.394 ACRES MORE OR LESS.
TRACT A-3
SERVICE ACCESS EASEMENT
A TRACT OF LAND IN FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP
50 NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND
CERTAIN ACCRETED LANDS (PART OF THE LAND MAY ALSO LIE WITHIN PARTS OF LOTS 51
AND 52, HURCK'S SUBDIVISION OF GUINOTTE BLUFF, ACCORDING TO THE RECORDED PLAT
THEREOF) ALL OF SAID LAND BEING IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIVER IN 1904 AND 1924, AND THE
EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B5945, PAGE 310 AS DOCUMENT NO. B570825, DATED 5-11-1965;
THEN N61-01-00E ALONG THAT HARBOR LINE A DISTANCE OF 1172.84 FEET TO THE
NORTHWESTERLY PROLONGATION OF THE WEST LINE OF A TRACT OF LAND CONVEYED TO THE
KANSAS CITY POWER AND LIGHT COMPANY BY BOOK B1942, PAGE 262, AS DOCUMENT NO.
1338778, AND BY BOOK B-4111, PAGE 36, AS DOCUMENT NO. 1 -881822;
THEN S28-59-00E ALONG THAT WEST LINE, A DISTANCE OF 937.77 FEET TO A POINT
175.00 FEET NORTHWESTERLY FROM THE NORTHERLY RIGHT-OF-WAY LINE OF RIVER FRONT
ROAD, BEING THE POINT OF BEGINNING.
THEN S56-52-23E, A DISTANCE OF 177.56 FEET TO A POINT ON THE NORTHERLY
RIGHT-OF-WAY LINE OF RIVER FRONT ROAD;
THEN S48-44-55W ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 85.00 FEET TO THE
PREVIOUSLY DESCRIBED WEST LINE OF THAT TRACT OF LAND CONVEYED TO THE KANSAS CITY
POWER AND LIGHT COMPANY;
THEN N28-59-00W ALONG THE WEST LINE OF THAT TRACT OF LAND, A DISTANCE OF 175.00
FEET TO THE POINT OF BEGINNING.
CONTAINING 7268 SQUARE FEET, MORE OR LESS.
EXHIBIT B-1
to
AMENDED AND RESTATED LEASE AGREEMENT
By and between THE PORT AUTHORITY OF KANSAS CITY, MISSOURI and HILTON HOTELS
CORPORATION, a Delaware corporation, as of the ____ day of August, 1995.
[Consisting of the attached ____ pages]
[Service Access Easement Agreement)
DEVELOPMENT AGREEMENT
(Gaming Riverboat)
between the Port Authority of Kansas City, Missouri
and
Hilton Hotels Corporation
DATED MARCH 12, 1993
DEVELOPMENT AGREEMENT
---------------------
(Gaming Riverboat)
THIS AGREEMENT (the "Agreement") is made and entered into as of the ____
day of March, 1993 between the HILTON HOTELS CORPORATION, a Delaware
corporation, and its "River Queen Operating Assignee" to be formed at a later
date (hereinafter Hilton Hotels Corporation ("Hilton") and its River Queen
operating Assignee are either referred to herein by their respective names or
are jointly and severally referred to as "River Queen"), and the PORT AUTHORITY
OF KANSAS CITY, MISSOURI, a public body corporate and politic (hereinafter
referred to as "Port Authority").
WITNESSETH:
WHEREAS, Port Authority has been created as a public body corporate and
politic duly organized and existing by Chapter 68 X.X.Xx. and the Ordinances of
the City of Kansas City, Missouri and is charged with developing a riverfront
area of Kansas City, Missouri, adjacent to the Missouri River in the vicinity of
Grand Avenue and generally bounded by the Missouri River on the North, the Paseo
Bridge on the East, Front Street (and the Grand Avenue extension from West to
East) on the South and the Broadway Bridge on the West (hereinafter said area
and certain adjacent areas where Site Improvements, as defined below, must be
constructed, is sometimes referred to as the "Development Area"), as authorized
by Sections 68.020 and 68.025 X.X.Xx. 1986, as amended; and
Agreement may be executed at different times and in any number of originals or
counterparts, each of which shall be deemed an original, but all of which
together shall constitute only one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first stated above by their duly authorized representatives.
PORT AUTHORITY OF KANSAS CITY,
MISSOURI
By
,
(name) (title)
HILTON HOTELS CORPORATION
By
,
(name) (title)
List of Exhibits
------------------
A. River Queen Premises Lease Identification Pages
B. Legal Description of River Queen Leased Premises
C. Site Improvements
D. Site Improvements Plans
E. Critical Path
F. Opinion Letters of Port Authority's and River Queen's Counsel
G. Cooperative Agreement for Public Improvements
H. Legal Description of Boatmen's Property
I. Drawing of Riverfront Park Area
J. River Queen Original Response Dated December 30, 1992 and Resubmission
Response Dated January 11, 1993 to Port Authority Request for Proposals
K. Minority and Women Participation in Hilton's Kansas City Queen Gaming
Riverboat Policy & Plan
L. Security/Safety Measures for the Development
EXHIBIT A
TRACT A-3
SERVICE ACCESS EASEMENT
LAND DESCRIPTION
A TRACT OF LAND IN FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP
50 NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND
CERTAIN ACCRETED LANDS (PART OF THE LAND MAY ALSO LIE WITHIN PARTS OF LOTS 51
AND 52, HURCK'S SUBDIVISION OF GUINOTTE BLUFF, ACCORDING TO THE RECORDED PLAT
THEREOF) ALL OF SAID LAND BEING IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIVER IN 1904 AND 1924, AND THE
EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B5945, PAGE 000, XXXXXXXX XX. X000000, DATED 5-11-1965;
THEN N61-01-00E ALONG THAT HARBOR LINE A DISTANCE OF 1172.84 FEET TO THE
NORTHWESTERLY PROLONGATION OF THE WEST LINE OF A TRACT OF LAND CONVEYED TO THE
KANSAS CITY POWER AND LIGHT COMPANY BY BOOK B1942, PAGE 262, AS DOCUMENT NO.
1338778, AND BY BOOK B-4111, PAGE 36, AS DOCUMENT NO. A-881822;
THEN S28-59-00E ALONG THAT WEST LINE, A DISTANCE OF 937.77 FEET TO A POINT
175.00 FEET NORTHWESTERLY FROM THE NORTHERLY RIGHT-OF-WAY LINE OF RIVER FRONT
ROAD, BEING THE POINT OF BEGINNING;
THE S56-52-23E, A DISTANCE OF 177.56 FEET TO A POINT ON THE NORTHERLY
RIGHT-OF-WAY LINE OF RIVER FRONT ROAD;
THEN S48-44-55W ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 85.00 FEET TO THE
PREVIOUSLY DESCRIBED WEST LINE OF THAT TRACT OF LAND CONVEYED TO THE KANSAS CITY
POWER AND LIGHT COMPANY;
THEN N28-59-00W ALONG THE WEST LINE OF THAT TRACT OF LAND, A DISTANCE OF 175.00
FEET TO THE POINT OF BEGINNING.
CONTAINING 7268 SQUARE FEET, MORE OR LESS.
NON-EXCLUSIVE ACCESS EASEMENT AGREEMENT
---------------------------------------
This Easement Agreement (the "Agreement") is made an entered into as of the
____ day of ___________, _______, by and among KANSAS CITY POWER AND LIGHT
COMPANY, a Missouri corporation ("Grantor"), HILTON HOTELS CORPORATION, a
Delaware corporation ("Hilton"), HILTON KANSAS CITY CORPORATION ("Xxxxxx XX"), a
Missouri corporation, and THE PORT AUTHORITY OF KANSAS CITY, MISSOURI, a public
body corporate and politic ("Grantee").
ARTICLE XXXI. RECITALS OF FACT
----------------
Section 31.01 Grantor is the fee simple owner of that certain real property
commonly known as Tract A-3 which abuts River Front Road in the City of Kansas
City, Missouri ("City") and is legally described on Exhibit "A" and shown on
-----------
Exhibit "B", both of which are attached hereto and incorporated herein by
---------
reference ("Grantor's Property").
Section 31.02 Grantee is the Lessee from the City of certain real property
shown on Exhibit "C", attached hereto and incorporated herein by reference
-----------
("Grantee's Property"), which Grantee desires to sublease to Hilton (sometimes
hereinafter referred to as "Grantee's Sublessee") under a certain Amended and
Restated Lease of approximately even date herewith (the "Hilton Lease").
Section 31.03 Grantor desires to grant a certain easement, and Grantee
desires to receive said easement for the purpose of providing vehicular access
across Grantor's Property for Grantee, its tenants, invitees, employees and
others including, without limitation, Hilton and its successors and assigns
under the Hilton Lease and said entities' tenants, invitees, and employees,
between Grantee's Property and the public street commonly known as River Front
Road and on which Grantor's property Hilton will construct certain driveway
improvements.
Section 31.04 Under Section 10.02 of that certain General Mortgage Indenture
and Deed of Trust, by and between Grantor and United Missouri Bank, N.A., as
Trustee ("Trustee"), dated December 1, 1986, and recorded in Book K-1612, at
Page 1, as Document No. K-746018 and in Book I-1612, at Page 632, as Document
No. I-733944, each in the real estate records of Xxxxxxx County, Missouri at
Kansas City and at Independence, respectively, as supplemented by various
supplemental indentures, Grantor is authorized to convey an easement to Grantee
without further authorization of Trustee.
NOW, THEREFORE, in consideration of the grants, covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, Grantor hereby grants, covenants and agrees and
Grantee and Hilton hereby consent and agree as follows:
ARTICLE XXXII. AGREEMENT
---------
Section 32.01 Grant of Easement. Grantor does hereby grant, remise release
------------------
and forever quitclaim to Grantee for the use and benefit of Grantee, its
tenants, employees, invitees, successors and assigns, a perpetual non-exclusive
easement over, under, across, and through that portion of Grantor's Property
shown on Exhibit "B", as, and hereinafter referred to as, the "Driveway
------------
Easement." The Driveway Easement shall be for the purpose of allowing continuous
ingress and egress of motor vehicles and other traffic from River Front
Road to and from Grantee's Property. The Driveway Easement shall be a covenant
running with the land.
32.01.1 Purchase Price. In consideration for the conveyance to Grantee of
---------------
the non-exclusive Driveway Easement, Hilton shall pay to Grantor a purchase
price of Seven Thousand Two Hundred Sixty-Eight and No/100 Dollars ($7,268.00)
with said purchase price to be paid in cash or certified funds upon execution of
this Agreement.
32.01.2 Title. Grantor hereby conveys a good, merchantable easement interest
-----
in the Driveway Easement to Grantee free and clear of any and all leases, liens,
or other encumbrances of any kind or nature whatsoever, or any combination
thereof, except those agreed to by Grantee in writing.
Section 32.02 Construction of Driveway. Hilton agrees as follows:
--------------------------
32.02.1 Construction. At its sole cost and expense, and within a reasonable
------------
period of time following execution of this Agreement, Hilton shall cause Xxxxxx
XX to construct a driveway (the "Driveway Improvements") on the Driveway
Easement, to include grading, paving and construction of necessary
appurtenances. Xxxxxx XX shall construct the Driveway Improvements in accordance
with plans and specifications prepared by Xxxxxx XX at Xxxxxx KC's cost and
expense and subject to the reasonable written approval of Grantor, which
approval shall be deemed given if no approval or request for changes has been
given within thirty (30) days after Grantor's receipt of Hilton KC's plans and
specifications from time to time.
32.02.2 Indemnity. Hilton agrees to defend, indemnify and hold Grantor and
---------
Grantee harmless from any and all claims, demands, causes of action, claims for
liens, bond claims, suits, actions, loss, costs, expenses, damages, liabilities,
obligations and judgments in any manner arising out of or related to or
connected with the work performed and the materials furnished for the Driveway
Easement.
32.02.3 Protection Against Lien Claims. Neither Hilton nor Xxxxxx XX shall
------------------------------
have any power to do any act or make any contract which may create or be the
basis for any lien, mortgage or other encumbrance upon the interest of Grantor
in Grantor's Property or the interest of Grantee in the Driveway Easement.
Should Hilton or Xxxxxx XX cause any construction, alteration, rebuilding,
restoration, replacement, change, addition, improvements or repairs to be made
on the Driveway Easement, including the Driveway Improvements, or cause any
labor to be performed or material to be furnished thereon, therein or thereto,
including labor and materials as necessary for the Driveway Improvements,
Grantor and Grantee shall under no circumstances be liable for the payment of
any cost or expense incurred or for the value of any work done or material
furnished, and Hilton and Xxxxxx XX shall be solely and wholly responsible to
contractors, laborers and materialmen performing such labor and furnishing such
materials.
If, because of any act or omission (or alleged act or omission) of Hilton
or Xxxxxx XX, any mechanics', materialmens' or other lien, charge or order for
the payment of money shall be filed or recorded against Grantor's Property or
the Driveway Easement or against Grantor or Grantee (whether or not such lien,
charge or order is valid or enforceable as such), Hilton shall, at its own cost
and expense, cause the same to be released and discharged of record within
thirty (30) days after Hilton shall have received notice of the filing or
recording thereof, or Hilton may, within said period, furnish to Grantor and/or
Grantee a bond satisfactory to Grantor and/or Grantee against any lien, charge
or order, in which case Hilton shall have the right in good faith to contest the
validity or amount thereof.
32.02.4 Construction Permits. Hilton and Xxxxxx XX shall obtain and comply
---------------------
with all permits and approvals of the City or other governmental bodies as may
be necessary to complete construction of the Driveway Improvements.
Section 32.03 Maintenance of the Easement. Hilton and Xxxxxx XX agree to
-----------------------------
cause the Driveway Easement to be maintained and repaired in a state of good
condition and repair, free of weeds, brush, accumulated debris, water, snow and
other obstructions or hazards whatsoever. If Hilton and Xxxxxx XX fail to so
maintain and repair the Driveway Easement in such condition, Grantor shall have
the right:
(a) if no emergency exists, to perform the same after giving ten (10) days
written notice to Hilton; and
(b) if an emergency exists, to perform the same immediately without notice
or delay.
In either case, Hilton shall within thirty (30) days after written demand from
Grantor, reimburse Grantor for the cost and expense reasonably incurred by
Grantor in rectifying Hilton's defaults as aforesaid, including reasonable
attorneys' fees. Notwithstanding anything stated herein to the contrary, neither
Hilton nor Xxxxxx XX or their successors and assigns, shall have any obligation
or liability hereunder (except for any then pending obligation or liability
previously incurred hereunder) after the termination or expiration of the Hilton
Lease.
Section 32.04 Termination of Easement for Default or Vacation. In the event
-----------------------------------------------
(a) Grantee and/or Hilton fails to comply with any term, provision, condition or
covenant of this Agreement, or (b) Grantee and Hilton deserts or vacates
the Driveway Easement for a period of one calendar year or longer, Grantee shall
be in default upon Grantor giving Grantee and Hilton (or its permitted
successors or assigns under the Hilton Lease) written notice of such default,
and upon Grantee's and Hilton's failure to cure such default within a period of
sixty (60) days after such written notice, Grantor may in its sole discretion
terminate this Agreement and shall, in such event, have no further obligation or
liability hereunder to Grantee or Hilton. Upon such termination, neither Grantee
nor Hilton shall have any right by Court action or otherwise, to enforce any
rights of possession to the Driveway Easement.
Section 32.05 Hilton Indemnification of Grantee. Grantor agrees that Grantee
---------------------------------
may, in its discretion, require that Hilton (or its permitted successors or
assigns under the Lease), perform Grantee's covenants related to insurance and
indemnity stated in Sections II.F and II.G below and as contemplated in the
Hilton Lease.
Section 32.06 Liability Insurance. This Agreement is made upon the express
-------------------
condition that Grantor is to be free from all liability and claims for damages
by reason of any injury to any person or persons, or property of any kind
whatsoever and to whomsoever belonging, including Grantee, Hilton and Xxxxxx XX,
from any cause or causes whatsoever in, upon or in any way connected with the
Driveway Easement during the term of this Agreement or any occupancy hereunder.
Grantee hereby covenants and agrees to save Grantor harmless from all liability,
loss, costs and expenses on account of or arising out of any such injuries or
losses however occurring on the Driveway Easement, except as provided herein.
Grantee covenants and agrees that it will at all times during the term
hereof, at its own cost and expense, maintain and keep in force in an insurance
company or companies reasonably acceptable to Grantor authorized to transact
business in the State of Missouri, naming both Grantor and Grantee as insureds
thereunder, general public liability and property damage insurance covering
Grantee's use of the Driveway Easement affording protection in an amount not
less than One Million Dollars ($1,000,000) for injury to or death of one or more
persons arising out of any one occurrence, and not less than Fifty Thousand
Dollars ($50,000) for property damage. Such policy shall contain an endorsement
thereof to the effect that the same shall not be canceled by the insurer without
at least thirty (30) days' prior written notice to Grantor. Grantee further
covenants to deposit with Grantor a certificate of such insurance, the
certificate of each such renewal policy to be similarly deposited with Grantor
at least thirty (30) days prior to the expiration of any then current policy.
Section 32.07 Payment of Insurance Premiums-Maintenance of Insurance.
-----------------------------------------------------------
If Grantee does not keep the insurance referred to in Section II.F hereof
in force and effect, Grantor in its sole discretion may pay the premiums
therefor or obtain the necessary insurance, and the amount of payment therefor,
with legal interest from the date of payment, shall be due and owing from
Grantee to Grantor upon written demand by Grantor.
ARTICLE XXXIII. OTHER TERMS
-----------
Section 33.01 Monitoring Xxxxx. Grantor shall contract with Terracon
-----------------
Environmental of Kansas City, Missouri for the purpose of filling and capping
certain environmental monitoring xxxxx presently located on Grantor's Property
and the relocation of such xxxxx so they will not interfere with Grantee's use
of the Driveway Easement. Hilton shall reimburse Grantor for the actual cost and
expense of filling, capping and relocating said monitoring xxxxx which cost
may include an income tax component if applicable.
Section 33.02 Fencing. For safety and security purposes, Grantor shall,
-------
relocate certain fencing along that area of Grantor's Property as shown on
Exhibit "D", which is attached hereto and incorporated herein by reference.
Hilton shall reimburse Grantor for the actual cost and expense of relocating the
fencing, which cost may include an income tax component, if applicable.
Section 33.03 Missouri Law. This Agreement shall be construed and enforced
------------
in accordance with the laws of the State of Missouri.
Section 33.04 Notices. All notices required to be given hereunder to Grantee
-------
must also be given to Hilton in accordance with the notice provisions stated
herein. Any notices or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered
personally or deposited in the United States mail, either certified or
registered, postage prepaid, return receipt required, addressed as follows:
If to Hilton: Hilton Hotels Corporation
c/o Hilton Kansas City Corporation
Attention: Xxx Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
With Copy to: Xxxxxxx & Xxxxxxxx, X.X.
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxx., Xxxxx 0000
Xxxxxx Xxxx, XX 00000
If to KCP&L: Kansas City Power & Light Company
Attention: Xxxxxxx X. X'Xxxxxx
Real Estate Department
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
With Copy to: Kansas City Power & Light Company
Legal Department
Attention: Xxxxxxx Xxxx
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
If to the Port Authority of Kansas City
Port Authority: Attention: Xxxxxx Xxxxx
Xxx Xxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
With Copy to: XxXxxxxx, Xxxx & Xxxxx, X.X.
Attention: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxxxxx Xxxxx
000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Any person or entity may change the place or person for receipt of notices by
written notice to the others given as provided above.
Section 33.05 Counterparts. Captions used herein are for convenience only
------------
and are not to be considered in construing this Agreement. This Agreement may be
executed at different times and in any number of counterparts, each of
which shall be considered an original but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
KANSAS CITY POWER & LIGHT COMPANY
By:
Name:
Title:
"GRANTOR"
PORT AUTHORITY OF KANSAS CITY, MISSOURI
By:
Name:
Title:
"GRANTEE"
HILTON HOTELS CORPORATION
By:
Name:
Title:
HILTON KANSAS CITY CORPORATION
By:
Name:
Title:
Attach: Exhibit A - Tract A-3 Legal Description
----------
Exhibit B - Tract A-3 (Plan)
----------
Exhibit C - Tracts A-1 and A-2 (Plan)
----------
Exhibit D - Relocation Plan Drawing showing Fencing
----------
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
On this ____ day of ____________, 1995, before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and known to me to be the _____________ of the Kansas City
Power and Light Company, and acknowledged to me that he executed said instrument
for the purposes and consideration therein expressed, and as the free act and
deed of the Kansas City Power and Light Company as authorized by its Board of
Directors.
WITNESS my hand and notarial seal subscribed and affixed in said County and
State the day and year in this certificate above written.
Notary Public
My Commission Expires:
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
On this ____ day of ____________, 1995, before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and known to me to be the _____________ of the Port
Authority of Kansas City, and acknowledged to me that he executed said
instrument for the purposes and consideration therein expressed, and as the free
act and deed of the Port Authority of Kansas City as authorized by its Board of
Directors.
WITNESS my hand and notarial seal subscribed and affixed in said County and
State the day and year in this certificate above written.
Notary Public
My Commission Expires:
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
On this ____ day of ____________, 1995, before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and known to me to be the _____________ of the Hilton
Hotels Corporation, a Delaware corporation, and acknowledged to me that he
executed said instrument for the purposes and consideration therein expressed,
and as the free act and deed of said corporation as authorized by its Board of
Directors.
WITNESS my hand and notarial seal subscribed and affixed in said County and
State the day and year in this certificate above written.
Notary Public
My Commission Expires:
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
On this ____ day of ____________, 1995, before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and known to me to be the _____________ of the Hilton
Kansas City Corporation, a Missouri corporation, and acknowledged to me that he
executed said instrument for the purposes and consideration therein expressed,
and as the free act and deed of the Kansas City Power and Light Company as
authorized by its Board of Directors.
WITNESS my hand and notarial seal subscribed and affixed in said County and
State the day and year in this certificate above written.
Notary Public
My Commission Expires:
EXHIBIT C
TRACT A-1
LAND DESCRIPTION
ALL THAT PART OF FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP 50
NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND CERTAIN
ACCRETED LAND, ALL IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIM IN 1904 AND 1924, AND THE EAST
RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B-5945, PAGE 310, AS DOCUMENT NO. B570825, DATED 5-11-1965;
THEN S19-47-42E ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 198.70 FEET TO THE
SOUTH RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD, AS RECORDED IN ORDINANCE
NO. 42446, DATED 3-30-1973, THE POINT OF BEGINNING ALSO BEING A POINT OF CURVE
OF A NONTANGENT CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 61-35-24 AND A
RADIUS OF 460.87 FEET, XXX XXXXXX XXXXX XXXXX X00-00-00X;
THEN SOUTHEASTERLY, SOUTHWESTERLY AND NORTHWESTERLY ALONG THE SOUTHEASTERLY
RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD, AS RECORDED IN ORDINANCE NO.
42446, DATED 3-30-1973 AND IN BOOK K436, AT PAGE 730, DATED 4-12-1973, AS
DOCUMENT NO. K-194186, THE FOLLOWING 8 COURSES;
1. SOUTHEASTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 495.41 FEET;
2. S52-31-32E, A DISTANCE OF 449.20 FEET TO A POINT OF CURVE OF A CURVE TO
THE LEFT HAVING A CENTRAL ANGLE OF 4-40-10 AND A RADIUS OF 580.87 FEET;
3. SOUTHEASTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 47.34 FEET;
4. S14-03-53E, A DISTANCE OF 155.67 FEET TO A POINT OF CURVE OF A NONTANGENT
CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 37-59-11 AND A RADIUS OF 460.87
FEET, THE RADIUS POINT BEARS N69-51-40W;
5. SOUTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 305.55 FEET;
6. S67-22-36W, A DISTANCE OF 248.91 FEET TO A POINT OF CURVE OF A NONTANGENT
CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 89-54-37 AND A RADIUS OF 140.19
FEET, THE RADIUS POINT BEARS N31-52-21W;
7. WESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 219.99 FEET;
8. N27-55-08W, A DISTANCE OF 60.58 FEET TO THE EAST RIGHT-OF-WAY LINE OF
U.S. INTERSTATE ROUTES 29 AND 35, ALSO BEING A POINT OF CURVE OF A NONTANGENT
CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF 12-47-05 AND A RADIUS OF 2059.86
FEET, THE RADIUS POINT BEARS S85-59-23W;
TRACT A-2
LAND DESCRIPTION
ALL THAT PART OF FRACTIONAL SECTION 28 AND FRACTIONAL SECTION 33, IN TOWNSHIP 50
NORTH, RANGE 33 WEST, AS ORIGINALLY SURVEYED BY THE UNITED STATES, AND CERTAIN
ACCRETED LANDS (PART OF THE LAND MAY ALSO LIE WITHIN PARTS OF LOTS 51 AND 52,
HURCK'S SUBDIVISION OF GUINOTTE BLUFF, ACCORDING TO THE RECORDED PLAT THEREOF)
ALL OF SAID LAND BEING IN KANSAS CITY, XXXXXXX COUNTY, MISSOURI, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE UNITED STATES HARBOR LINE, AS
ESTABLISHED ON THE SOUTH BANK OF THE MISSOURI RIVER IN 1904 AND 1924, AND THE
EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35, AS RECORDED IN BOOK
B5945, PAGE 310, AS DOCUMENT NO. B570825, DATED 5-11-1965;
THEN N61-01-00E ALONG THAT HARBOR LINE, A DISTANCE OF 1172.84 FEET TO THE
NORTHWESTERLY PROLONGATION OF THE WEST LINE OF A TRACT OF LAND CONVEYED TO THE
KANSAS CITY POWER AND LIGHT COMPANY BY BOOK B1942, PAGE 262, AS DOCUMENT NO.
1338778 AND BY BOOK B-4111, PAGE 36, AS DOCUMENT NO. A-881822;
THEN S28-59-00E ALONG THAT WEST LINE, A DISTANCE OF 1098.96 FEET;
THEN S48-39-06W, A DISTANCE OF 10.79 FEET TO A POINT OF CURVE OF A CURVE TO THE
RIGHT HAVING A CENTRAL ANGLE OF 78-49-22 AND A RADIUS OF 460.87 FEET, BEING A
POINT ON THE NORTH RIGHT-OF-WAY LINE OF RELOCATED RIVER FRONT ROAD AS RECORDED
IN BOOK K436, PAGE 730, DATED 4-12-1973, AS DOCUMENT NO. K-194186;
THEN SOUTHWESTERLY AND NORTHWESTERLY ALONG THE NORTHEASTERLY RIGHT-OF-WAY LINE
OF RELOCATED RIVERFRONT ROAD AS RECORDED IN BOOK K436, PAGE 730, DATED
4-12-1973, AND IN ORDINANCE NO. 42446, DATED 3-30-1973, THE FOLLOWING 3 COURSES;
1. SOUTHWESTERLY, WESTERLY AND NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A
DISTANCE OF 634.03 FEET;
2. N52-31-32W, A DISTANCE OF 449.20 FEET TO A POINT OF CURVE OF A CURVE TO
THE LEFT HAVING A CENTRAL ANGLE OF 60-41-46 AND A RADIUS OF 580.87 FEET;
3. NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 615.34 FEET TO
THE EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND 35;
THEN N19-47-42W, ALONG THAT RIGHT-OF-WAY LINE, A DISTANCE OF 78.43 FEET TO THE
POINT OF BEGINNING;
CONTAINING 17.394 ACRES M/L.
THEN NORTHERLY ALONG THE EAST RIGHT-OF-WAY LINE OF U.S. INTERSTATE ROUTES 29 AND
35 THE FOLLOWING 5 COURSES;
1. NORTHWESTERLY ALONG THE ARC OF THAT CURVE, A DISTANCE OF 459.63 FEET TO A
POINT THAT IS 150 FEET DISTANT NORTHEASTERLY FROM AND CONCENTRIC WITH U.S.
INTERSTATE ROUTES 29 AND 35 CENTERLINE, AND BEING A POINT OF CURVE OF A SPIRAL
CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF 3-00-00 AND AN INFINITE RADIUS;
2. NORTHWESTERLY ALONG THE ARC OF THAT SPIRAL CURVE, A DISTANCE OF 207.16
FEET, MORE OR LESS, TO A POINT BEING 150 FEET DISTANT NORTHEASTERLY FROM AND
CONCENTRIC WITH U.S. INTERSTATE ROUTES 29 AND 35 CENTERLINE;
3. N19-47-42W, A DISTANCE OF 109.38 FEET;
4. S70-12-18W, A DISTANCE OF 75.00 FEET;
5. N19-47-42W, A DISTANCE OF 12.31 FEET TO THE POINT OF BEGINNING.
CONTAINING 10.327 ACRES M/L.
