Exhibit 10.9
PARKING LEASE
by and between
XXXXXXXXXX HARBOR PARKING ASSOCIATES, LLC
as Lessor
and
XXXXX INDIANA, INC.
as Lessee
Dated as of June 19, 2001
TABLE OF CONTENTS
Paragraph Page
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1. Definitions................................................................................ 2
2. Lease of Premises; Sublease of Ground Lease Property....................................... 5
3. Lessor's Obligation to Construct Parking Facility.......................................... 6
4. Use; Maintenance; Compliance with Laws and Contracts....................................... 7
5. Term....................................................................................... 7
6. Rent; Assumption of Ground Lease Obligations; Reimbursement................................ 8
7. Absolutely Net Lease....................................................................... 9
8. Taxes, Assessments and Utilities........................................................... 9
9. Liens......................................................................................10
10. Indemnification............................................................................10
11. Condemnation...............................................................................11
12. Insurance..................................................................................11
13. Casualty...................................................................................12
14. Permitted Contests.........................................................................13
15. Default Provisions.........................................................................13
16. Rights of Lessor...........................................................................15
17. Litigation Expenses........................................................................15
18. Assignment and Subletting..................................................................16
19. Mortgages..................................................................................16
20. Notices, Demands and Other Instruments.....................................................18
i
21. Estoppel Certificates......................................................................19
22. No Merger..................................................................................19
23. Surrender..................................................................................19
24. Severability; Binding Effect; Amendments to be in Writing..................................19
25. Governing Law..............................................................................19
26. Headings and Table of Contents.............................................................20
27. Subordination to Mortgage Lenders..........................................................20
28. Holding Over...............................................................................20
29. Quiet Enjoyment............................................................................20
30. Disclaimer of Lessor's Liability for Consequential Damages.................................21
31. Counterparts...............................................................................21
32. Recording..................................................................................21
33. Certain Obligations Joint..................................................................21
34. Lessee's Representations and Warranties....................................................21
Schedules
A Legal Description of Lessor's Real Property
B Appurtenances
C Legal Description of Ground Lease Property
D Permitted Exceptions
ii
PARKING LEASE
THIS PARKING LEASE, dated as of June 19, 2001 (this "Lease"), is made by
and between XXXXXXXXXX HARBOR PARKING ASSOCIATES, LLC, a Delaware limited
liability company having offices at Xxx Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxx
00000 ("Lessor") and XXXXX INDIANA, INC., a Delaware corporation having offices
at Xxx Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxx 00000 ("Lessee").
RECITALS:
A. Lessor owns the real property described on Schedule A hereto
(the "Property"). The Property is benefitted by certain agreements, rights and
appurtenances which include those set forth on Schedule B hereto (together with
all rights and appurtenances that may be hereafter created in favor of the
Property, the "Appurtenances").
B. The Property is currently improved with, among other things, a
surface parking lot, and Lessor intends to construct on the Property a 2,000-car
covered parking facility and related improvements (the "Parking Facility").
X. Xxxxxxxxxx Harbor Riverboats, L.L.C. ("BHR") owns certain real
property, a portion of which is adjacent to the Property (the "BHR Land").
D. Lessee owns and operates a gaming vessel which Lessee berths at
the BHR Land pursuant to a Berthing Agreement dated as of April 23, 1996 between
Lessee and BHR, as amended from time to time (the "Xxxxx Berthing Agreement").
Also pursuant to the Xxxxx Berthing Agreement, Lessee and its customers and
invitees utilize the BHR Land and the improvements thereon in connection with
Lessee's riverboat gaming operations.
E. The Majestic Star Casino, LLC ("Majestic") owns and operates a
gaming vessel which Majestic berths at the BHR Land pursuant to a Berthing
Agreement dated as of April 23, 1996 between Majestic and BHR, as amended from
time to time (the "Majestic Berthing Agreement"). Also pursuant to the Majestic
Berthing Agreement, Majestic and its customers and invitees utilize the BHR Land
and the improvements thereon in connection with Majestic's riverboat gaming
operations. The riverboat gaming operations of Lessee and Majestic, or their
respective successors or assigns, are referred to herein as the "Gaming
Operations."
X. Xxxxxx is the lessee of the real property described on Schedule
C hereto (the "Ground Lease Property") pursuant to that certain Ground Lease
(the "Ground Lease") of even date herewith between BHR, as lessor, and the
Lessor named herein, as lessee, thereunder.
X. Xxxxxx desires to lease the Property, including the Parking
Facility, and sublease the Ground Lease Property, to Lessee and to Majestic, for
the benefit of their respective Gaming Operations, and for no other purpose.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and other good and valuable consideration, the parties hereby
agree as follows:
1. Definitions. As used in this Lease, the following terms shall
have the meanings set forth below:
a. "Additional Rent" shall have the meaning ascribed to it
in Paragraph 6d hereof.
b. "Affiliate" means as to any Person, any other Person
(other than a subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" of a Person (including, with its correlative
meanings, "controlled by" and "under common control with") means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether by
contract or otherwise. any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Person in
question. For purposes of this definition, "control" shall mean the power to
direct management or policies through ownership of voting securities or similar
equity interest.
c. "Approvals" shall have the meaning ascribed to it in
Paragraph 3b hereof.
d. "Appurtenances" shall have the meaning ascribed to it in
Recital A hereof.
e. "Bankruptcy" means that the Lessee shall have (1) made
an assignment for the benefit of creditors; (2) filed a voluntary petition in
bankruptcy; (3) been adjudicated as bankrupt or insolvent; (4) filed a petition
or answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation; (5) filed an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding set forth in (4) above; or (6) sought, consented to, or acquiesced in
the appointment of a trustee, receiver, or liquidator of all or any substantial
part of its properties; or if one hundred eighty (180) days after the
commencement of any proceeding against the Lessee seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, the proceeding has not been
dismissed, or if within one hundred fifty (150) days after the appointment
without its consent or acquiescence of a trustee, receiver, or liquidator of the
Lessee or all or any substantial part of its properties, the appointment is not
vacated or stayed, or within ninety (90) days after the expiration of any such
stay, the appointment is not vacated.
f. "Basic Rent" shall have the meaning ascribed to it in
Paragraph 6b hereof.
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g. "BHR" shall have the meaning ascribed to it in Recital C
hereof.
h. "BHR Land" shall have the meaning ascribed to it in
Recital C hereof.
i. "Debt Service" means all principal, interest, charges,
fees, escrows and any other amounts payable by Lessor with respect to any
Permitted Financing, whether such amounts are regularly scheduled, accelerated
or due at the end of the term of such Permitted Financing; provided, however,
"Debt Service" shall not include costs to construct the Parking Facility.
j. "Delivery Date" shall have the meaning ascribed to it in
Paragraph 3d hereof.
k. "Financing" shall have the meaning ascribed to it in
Paragraph 3b hereof.
l. "Force Majeure Events" means any cause beyond the
reasonable control of the party claiming the same, including, but not limited
to, strikes; lockouts; acts of God; restrictions, limitations, rationing,
curtailments or moratoriums imposed by any governmental authority, whether by
rule, regulation, statute, ordinance or otherwise; inability to secure materials
or labor by reason of unavailability or regulation or order of any governmental
or regulatory body; enemy action; civil disturbance; or fire, storm, earthquake
or other casualty.
m. "Gaming Operations" shall have the meaning ascribed to
it in Recital E hereof.
n. "Improvements" means the improvements currently located
or hereafter constructed on the Property and owned by Lessor, which improvements
include, but are not limited to (a) roads providing ingress and egress to, and
circulation within, the Property; (b) parking lots and related improvements,
including curbs, gutters, aisles, driveways, limousine stands and associated
infrastructure; (c) the Parking Facility; (d) landscaping, lighting and signage;
(e) applicable utilities (whether constructed on the Property or property
subject to easements, leases or licenses in favor of Lessor), including
electricity, sanitary sewer, natural gas, telephone, water, cable and storm
water drainage; and (f) the Pedestrian Bridge and other pedestrian walkways
associated with the improvements referred to in this Paragraph.
o. "Initial Rent" shall have the meaning ascribed to it in
Paragraph 6a hereof.
p. "Lease" shall have the meaning ascribed to it in the
opening paragraph hereof.
q. "Legal Requirements" shall have the meaning ascribed to
it in Paragraph 3d hereof.
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r. "Lessee" shall have the meaning ascribed to it in the
opening paragraph hereof.
s. "Lessor" shall have the meaning ascribed to it in the
opening paragraph hereof.
t. "Lessor Indemnitee" shall have the meaning ascribed to
it in Paragraph 10 hereof.
u. "Loan Agreement" shall mean that certain Construction
and Term Loan Agreement by and between Lessor and Firstar Bank, N.A. dated June
19, 2001.
v. "Losses" shall have the meaning ascribed to it in
Paragraph 10 hereof.
w. "Majestic" shall have the meaning ascribed to it in
Recital E hereof.
x. "Majestic Berthing Agreement" shall have the meaning
ascribed to it in Recital E hereof.
y. "Majestic Lease" means that certain Parking Facility
Lease of even date herewith between Majestic, as lessee, and Lessor, as lessor,
pursuant to which Lessor leases the Premises and subleases the Ground Lease
Property to Majestic on terms and conditions substantially identical to those in
this Lease.
z. "Mortgage" shall have the meaning ascribed to it in
Paragraph 19a hereof.
aa. "Mortgage Lender" shall have the meaning ascribed to it
in Paragraph 19a hereof.
bb. "Parking Facility" shall have the meaning ascribed to it
in Recital B hereof.
cc. "Pedestrian Bridge" means the pedestrian bridge and
related improvements to be constructed by Lessor as a means of pedestrian
ingress and egress between the Parking Structure and the improvements located on
the BHR Land.
dd. "Permitted Exceptions" shall have the meaning ascribed
to it in Paragraph 2 hereof.
ee. "Permitted Financing" means the Financing, and any
renewals, extensions, substitutions, refundings, refinancings or replacements
thereof including any successive renewals, extensions, substitutions,
refundings, refinancings or replacements so long
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as (y) the aggregate principal amount of the indebtedness represented thereby
does not exceed the then outstanding principal amount of the indebtedness being
renewed, extended, substituted, refunded, refinanced or replaced, and (z) the
term of such renewal, extension, substitution, refunding, refinancing or
replacement does not exceed the Term , plus (i) accrued interest thereon, (ii)
any premium or other payment required to be paid under the terms of the
instrument governing such indebtedness or the amount of premium reasonably
determined by Lessor as necessary to accomplish such renewal, extension,
substitution, refunding, refinancing or replacement, and (iii) expenses
reasonably incurred in connection therewith.
ff. "Person" means any individual, corporation, partnership
(general or limited), association, limited liability company, trust, estate or
other entity.
gg. "Premises" shall have the meaning ascribed to it in
Paragraph 2 hereof.
hh. "Prime Rate" means the interest rate from time to time
that is published by The Wall Street Journal as the prime lending rate;
provided, if The Wall Street Journal ceases to publish an interest rate as the
prime lending rate (or similar designation), the Prime Rate shall mean the prime
lending rate established from time to time by Chase Manhattan Bank or its
successor.
ii. "Property" shall have the meaning ascribed to it in
Recital A hereof.
jj. "Supplemental Rent" shall have the meaning ascribed to
it in Paragraph 6c hereof.
kk. "Term" shall have the meaning ascribed to it in
Paragraph 5 hereof.
ll. "Xxxxx Berthing Agreement" shall have the meaning
ascribed to it in recital D hereof.
2. Lease of Premises; Sublease of Ground Lease Property. In
consideration of the rents and covenants herein stipulated to be paid and
performed by Lessee and upon the terms and conditions herein specified (a)
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, for the
Term (i) the Property, (ii) the use of all Appurtenances now or hereafter
benefitting the Property (provided, said use shall be on a non-exclusive basis),
and (iii) the Improvements (collectively, the "Premises"), in each case subject,
but not subordinate, to the rights and interests of the lessee pursuant to the
Majestic Lease and subject to the terms and conditions set forth herein, and (b)
Lessor hereby subleases to Lessee, and Lessee hereby subleases from Lessor, for
the Term, the Ground Lease Property, subject to the terms and conditions of the
Ground Lease. Without limiting the generality of the foregoing, the Premises are
demised and let and the Ground Lease Property is demised and sublet subject to
the matters listed on Schedule D hereto (the "Permitted Exceptions") and to
Lessor's rights hereunder.
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3. Lessor's Obligation to Construct Parking Facility.
a. Lessor shall construct the Parking Facility as
contemplated by the "Standard Form of Agreement Between Owner and
Design/Builder" between Lessor and Xxxx & Blank Construction and in accordance
with the provisions of this Paragraph 3.
x. Xxxxxx'x obligation to commence and complete
construction shall be subject to its ability to procure (i) financing proceeds
in the amount of at least Seventeen Million One Hundred Twenty-Eight Thousand
($17,128,000) Dollars to be used for, among other things, construction of the
Parking Facility (the "Financing"), and (ii) applicable permits, licenses and
other governmental approvals sufficient to permit the construction of the
Parking Facility (the "Approvals"). Upon obtaining the Financing and the
Approvals, Lessor shall prosecute construction of the Parking Facility with
diligence, and shall use best efforts to achieve substantial completion thereof,
subject to delays occasioned by Force Majeure Events.
c. The Parking Facility shall be constructed so as to (i)
be constructed in a good and workmanlike fashion, and (ii) comply with all
applicable laws, rules and regulations (including, but not limited to, the
Americans with Disabilities Act) of governmental authorities having jurisdiction
over the Property or the Parking Facility.
d. In addition, Lessor shall fully comply with, observe and
discharge or cause to be complied, observed and discharged, and cause the
Premises to comply with, all laws, ordinances and regulations, and other
governmental rules, orders and determinations now or hereafter enacted, made or
issued, whether or not presently contemplated, applicable to the Premises,
improvements constructed thereon, and/or the ownership, use, operation and/or
maintenance thereof including, but not limited to, any law pertaining to the
environment, health or safety (collectively, "Legal Requirements") to the extent
applicable to the construction of the Parking Facility and/or the ownership or
use of the Premises prior to the date of Lessor's completion of the Parking
Facility in accordance with the terms hereof and the issuance of a permanent
certificate of occupancy therefor (the "Delivery Date"). Lessor shall indemnify
and hold harmless Lessee, its members, employees, representatives, officers,
directors and agents from and against any liability, obligation or expense,
including reasonable attorneys' fees and other litigation expenses, incurred or
asserted against them based on a violation by Lessor or Lessor's members,
employees, representatives, officers, directors, invitees (other than Lessee or
Lessee's members, employees, representatives, officers, directors, invitees or
agents) or agents of any Legal Requirements prior to the Delivery Date.
e. Notwithstanding anything contained herein to the
contrary, in no event shall Lessor be obligated to spend more than the amount of
the Initial Rent received by Lessor under this Lease and the Majestic Lease,
together with the amount available to Lessor under the Financing and from
payments of Supplemental Rent under this Lease and the Majestic Lease, in
constructing the Parking Facility.
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4. Use; Maintenance; Compliance with Laws and Contracts.
a. Lessee may use the Premises subject, but not
subordinate, to the rights of the lessee under the Majestic Lease, for
pedestrian and vehicular ingress and egress and for the parking of automobiles,
limousines, trucks, buses and vehicles of Lessee, and the employees, agents,
patrons, customers, suppliers, invitees, successors and assignees of Lessee,
provided all such use shall be in support of the Gaming Operations. Lessor and
Lessee each acknowledge and agree that either party shall have the right to
enforce reasonable rules and regulations (including "booting" after notice), to
discourage persons not gaming at the gaming vessels of either Lessee or Majestic
from parking in the Parking Facility.
b. At all times during the Term following the Delivery
Date, Lessee shall maintain the Premises in a good and sound condition and
repair, reasonable wear and tear excepted, at Lessee's sole cost and expense and
at no expense to Lessor. In the event Lessee breaches its obligation to so
maintain the Premises and such breach continues for a period of thirty (30) days
after Lessor provides Lessee with written notice of such breach (provided that,
if the breach is of such a nature that it reasonably requires more than thirty
(30) days to repair the thirty (30) day period shall be extended so long as
Lessee commences such cure within said thirty (30) day period and thereafter
prosecutes such cure to completion with reasonable diligence), Lessor shall have
the right to enter the Premises for the purpose of conducting such repair,
maintenance or replacement activities as may be necessary to cure such default.
The cost of any such cure activities, including reasonable attorneys fees, shall
be paid by Lessee to Lessor within five (5) days after Lessor's submission to
Lessee of a written statement detailing same.
c. Except as expressly set forth herein to the contrary,
from and after the Delivery Date, Lessee shall comply with and cause the
Premises to comply with all Legal Requirements applicable to the Premises and/or
the use thereof and Lessee shall not create or suffer to exist any public or
private nuisance or hazardous or blighted condition on or with respect to the
Premises.
d. Following the Delivery Date, Lessee shall duly and
punctually observe, perform and comply with the provisions of any agreements
which constitute a Permitted Exception, to the extent applicable to Lessee's
use, occupancy and/or maintenance of the Premises, and Lessee further covenants
and agrees that it will not, directly or indirectly, do any act or suffer or
permit any condition or thing within Lessee's control to occur which would
constitute a default by Lessor under any of the Permitted Exceptions.
e. Lessee may use the Ground Lease Property subject, but
not subordinate, to the rights of the lessee under the Majestic Lease, for the
purposes permitted pursuant to the Ground Lease and for no other purpose.
5. Term. The term of this Lease (i) shall be from the date hereof
through December 31, 2018 with respect to the Premises, and (ii) the earlier of
the expiration date of the Ground Lease or December 31, 2018 with respect to the
Ground Lease Property (the "Term"),
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whereupon, as applicable, Lessee shall surrender the Premises and Ground Lease
Property to Lessor pursuant to Paragraph 23 herein.
6. Rent; Assumption of Ground Lease Obligations; Reimbursement.
Lessee shall pay to Lessor in lawful money of the United States as rent
hereunder the following amounts at the following times:
a. Payable upon execution hereof, an initial payment of
Eight Million Four Hundred Seventeen Thousand, Eight Hundred Ninety-Nine
($8,417,899) Dollars ("Initial Rent");
b. A monthly payment equal to one hundred (100%) percent of
Lessor's Debt Service requirement for the following month, payable as follows:
(i) on the fifteenth (15th) day of each month during the Term, a payment equal
to fifty (50%) percent of Lessor's Debt Service requirement for the following
month; and (ii) in the event that Lessor has not received a payment equal to the
remaining fifty (50%) percent of Lessor's Debt Service requirement for the
following month from the lessee under the Majestic Lease by the twenty-third
(23rd) day of the month, Lessor shall immediately provide notice to Lessee
thereof, and Lessee shall make a payment equal to the remaining fifty percent
(50%) of Lessor's Debt Service requirement for the following month (or such
lesser amount in the event of a partial payment by the lessee under the Majestic
Lease) within two (2) business days of receipt of such written notice, but in no
event later than the last day of such month ("Basic Rent");
c. Payment equal to one hundred (100%) percent of the
amount, if any, by which the construction costs incurred by Lessor to construct
the Parking Facility exceed the net proceeds of the Financing ("Supplemental
Rent"), payable as follows: (i) ten (10) days prior to the Delivery Date, a
payment equal to fifty (50%) percent of the Supplemental Rent; and (ii) in the
event that Lessor has not received a payment equal to the remaining fifty (50%)
percent of the Supplemental Rent from the lessee under the Majestic Lease by the
Delivery Date, Lessor shall immediately provide notice to Lessee thereof, and
Lessee shall make a payment equal to the remaining fifty percent (50%) of the
Supplemental Rent (or such lesser amount in the event of a partial payment by
the lessee under the Majestic Lease) within two (2) business days of receipt of
such written notice, provided that in no event shall Lessee's obligation with
respect to Supplemental Rent exceed Seven Hundred Fifty Thousand ($750,000)
Dollars; and
d. All amounts owing pursuant to this Lease, but unpaid,
shall accrue interest at the Prime Rate from and after the applicable due date
until paid. All such amounts (including interest thereon) shall be deemed to be
"Additional Rent" hereunder and, in the event of a failure by Lessee to pay the
same, Lessor shall have all of the rights and remedies that are available for a
failure of Lessee to pay Basic Rent hereunder.
e. All amounts owing pursuant to the Ground Lease, the
Lessee herein acknowledging and agreeing to assume each and every obligation of
the Lessor named herein pursuant to the Ground Lease.
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Lessor covenants and agrees to immediately reimburse Lessee for all amounts paid
by Lessee to Lessor in excess of fifty (50%) percent of Lessee's obligations
hereunder with respect to Basic Rent, Supplemental Rent, Additional Rent and all
other amounts due and owing under this Lease, if and to the extent Lessor
receives payment by the lessee under the Majestic Lease with respect to its
corresponding obligation under the Majestic Lease. The amounts owing hereunder
by Lessor, if any, shall accrue interest thereon at the Prime Rate until paid or
set-off. Notwithstanding anything herein to the contrary, Lessee acknowledges
and agrees that Lessee's only remedies in the event of a default by Lessor under
this Paragraph 6(e) shall be to set-off such amounts against Lessee's obligation
to pay Basic Rent or to bring an action for money damages or injunctive relief,
Lessee hereby expressly waiving any right to terminate this Lease as a result of
such a default.
7. Absolutely Net Lease .
a. This Lease is an absolutely net lease and (except as
expressly provided in this Lease), any present or future law to the contrary
notwithstanding, or any failure to commence or complete construction or
thereafter operate the Parking Facility, shall not terminate nor shall Lessee be
entitled to any abatement, reduction, setoff, counterclaim, defense or deduction
with respect to any Basic Rent, Supplemental Rent, Additional Rent or other sum
payable hereunder, except as provided in Section 6 hereof.
b. Lessee shall remain obligated under this Lease in
accordance with its terms and shall not take any action to terminate, rescind or
avoid this Lease, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Lessor or any assignee of
Lessor or any action with respect to this Lease which may be taken by any
trustee, receiver or liquidator or by any court. Except as specifically provided
herein, Lessee waives all rights to terminate or surrender this Lease, and to
any abatement or deferment of Basic Rent, Supplemental Rent, Additional Rent or
other sums payable hereunder.
8. Taxes, Assessments and Utilities .
a. Subject to the provisions of Paragraph 14 herein, Lessee
shall pay or cause to be paid (i) all taxes, assessments, levies, fees, water
and sewer rents, charges, licenses, permit fees and all other governmental
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, which, at any time during the Term, (A) are imposed or levied upon
or assessed against the Premises, or (B) arise in respect of the operation,
possession or use of the Premises; (ii) all sales, value added, use and similar
taxes at any time levied, assessed or payable on account of the acquisition,
leasing or use of the Premises; (iii) all charges for utilities provided to the
Premises; and (iv) all taxes, assessments, levies, charges, fees or payments in
lieu of or as a substitute for and substantially the same as the charges or
payments referred to in clauses (i) through (iii) above. Lessee shall furnish to
Lessor, promptly after demand therefor, proof of payment of all items referred
to above which are payable by Lessee. If any such tax, levy, assessment or
charges may legally be paid in installments, Lessee may pay such tax, levy,
assessment or charges in installments; in such event, Lessee shall be liable
only
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for such portion of such taxes, levies, assessments and charges as are
applicable to the Term, irrespective of whether payable before or after the
expiration thereof.
b. Nothing contained in this Paragraph 8 shall obligate
Lessee to pay to or on behalf of Lessor, Lessor's assignee, transferee or
successor (i) any United States federal tax on net income and items of tax
preference or federal tax in lieu of a net income tax; (ii) any state tax
imposed on or measured by Lessor's gross income or net income, or any state
franchise or similar tax in lieu thereof; (iii) any county, municipal or local
tax imposed on or measured by net income; and (iv) any income or capital gains
taxes payable by Lessor upon sale or disposition by it of the Premises.
9. Liens. Subject to Paragraph 14 hereof, Lessee shall promptly
remove and discharge, or cause to be removed and discharged, any charge, lien,
security interest or other encumbrance upon the Property that arises out of the
use or occupancy of, or any construction on, the Property or any part thereof by
or on behalf of Lessee, but specifically excluding the Permitted Encumbrances
and any mortgage, deed of trust, charge, lien, security interest or encumbrance
created by Lessor. Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, express or implied, to or for the
performance by any contractor, laborer, materialman or vendor of any labor or
services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Property or any part
thereof. Notice is hereby given that Lessor will not be liable for any labor,
services or materials furnished or to be furnished to Lessee, or to anyone
holding the Premises or any part thereof through or under Lessee and that no
mechanic's, construction or other liens for any such labor, services or
materials shall attach to or affect the interest of Lessor in and to the
Property.
10. Indemnification. Following the Delivery Date, Lessee shall
defend all actions against Lessor, its members and any officer, director,
shareholder, agent or employee of Lessor and its members (each, a "Lessor
Indemnitee") with respect to, and shall pay, protect, indemnify and save
harmless all Lessor Indemnitees from and against, any and all liabilities,
losses, damages, costs, expenses (including reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or judgments of any nature
(other than those arising from Permitted Exceptions, unless caused by a breach
by Lessee of its obligations hereunder or the negligence or misconduct of
Lessee) ("Losses") to which any Lessor Indemnitee is subject that result from
(i) a breach of this Lease by Lessee, (ii) injury to or death of any person, or
damage to or loss of property on or by reason of activity on the Premises,
including the use, condition or occupancy thereof, and/or (iii) any contest
referred to in Paragraph 14. In case any action, suit or proceeding is brought
against any Lessor Indemnitee by reason of any occurrence herein described, such
Lessor Indemnitee shall provide Lessee with prompt written notice thereof,
whereupon Lessee shall and at its own cost and expense, defend such action, suit
or proceeding with counsel reasonably satisfactory to Lessor. Nothing herein
shall be construed as indemnifying any Lessor Indemnitee against its own
negligence or misconduct, or any matters resulting from or constituting a breach
by Lessor of any representation, warranty or obligation of Lessor herein.
Notwithstanding anything herein to the contrary, Lessee shall have no
indemnification obligation under this Paragraph with respect to any Losses to
the extent such Losses arise in connection with and are attributable to the
negligence or misconduct of the lessee
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under the Majestic Lease and/or its members or any officer, director,
shareholder, agent or employee of the lessee under the Majestic Lease and/or its
members.
11. Condemnation.
a. If the use, occupancy or title to the Premises and the
Ground Lease Property, or any part thereof, or any buildings or improvements
thereon, is permanently taken, requisitioned, sold or impaired (each, a
"taking") in, by or on account of any actual or threatened eminent domain
proceeding or other action by any person having the power of eminent domain,
there shall be no abatement or reduction in the amounts payable by the Lessee as
Basic Rent, Supplemental Rent or Additional Rent, and Lessee shall continue to
be obligated to make such payments.
b. Immediately upon obtaining knowledge of the institution
of any proceedings for the condemnation of all or any portion of the Premises
and Ground Lease Property, the Lessor and Lessee shall notify Mortgage Lender of
the pendency of such proceedings. The Mortgage Lender may participate in any
such proceedings and the Lessor and Lessee shall from time to time deliver to
the Mortgage Lender all instruments requested by it to permit such
participation. The Lessor shall, at its sole cost and expense, diligently
prosecute any such proceeding and shall consult with the Mortgage Lender, its
attorneys and experts and cooperate with it in any defense of any such
proceedings. Neither Lessor nor Lessee shall, without the Mortgage Lender's
prior express written consent, enter into any agreement for the taking or
conveyance in lieu thereof of the Premises and Ground Lease Property, or any
part thereof, with anyone authorized to acquire the same by eminent domain,
condemnation or like power or proceeding. Upon the occurrence of any
condemnation or taking or agreement in lieu thereof with respect to the Premises
and the Ground Lease Property, or any part thereof, the condemnation proceeds
shall be applied or disbursed in accordance with the provisions of the Mortgage,
if any. In the absence thereof, all such condemantion proceeds shall be applied
by Lessor to the repair, restoration, replacement and rebuilding of the Premises
as near as practicable to the condition immediately preceding such taking and
the balance of the condemnation proceeds, if any, shall be remitted fifty (50%)
percent to Lessee and fifty (50%) percent to the lessee under the Majestic
Lease.
12. Insurance.
a. Lessee shall maintain or cause to be maintained
insurance on the Premises (i) in accordance with the requirements of the
Mortgage and any loan documents related thereto, including, without limitation,
with respect to the types of insurance, providers, amounts and deductibles, or
(ii) if no Mortgage is in effect, of the following character:
(1) Broad Form Commercial General Liability
insurance, including contractual liability, with minimum limits of liability of
Twenty Million ($20,000,000) Dollars per occurrence combined single limit of
liability for bodily injury, property damage and personal injury. Lessee shall
increase these liability limits as Lessor shall reasonably require from time to
time. This insurance shall specifically include all liability assumed hereunder
by
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Lessee and shall provide that it is primary insurance and not excess over or
contributory with any other insurance.
(2) Such other insurance, including, but not limited
to, a "Special Perils" Builders' Risk insurance policy against loss or damage by
fire and such other hazards, including theft of construction materials and
contents from the site and "Special Perils" property insurance policy covering
the Improvements, in such amounts and against such risks, as is required by any
Mortgage Lender.
All such insurance shall be issued by companies which shall have an A.M. Best
Rating Guide Stability Rating of A- or better, and a Financial Rating of VI or
better, on forms, in amounts, and with deductibles, all of which are acceptable
to Lessor and Mortgage Lender, and shall name Lessor as an additional insured
party and include Lessee as its interest may appear.
b. Each policy required pursuant to Paragraph
12a(2) shall bear a mortgagee endorsement in favor of Mortgage Lender; and any
loss under any such policy shall be payable to Mortgage Lender to be held and
applied pursuant to the Mortgage. Every policy required by Paragraph 12a shall
provide that it will not be cancelled or amended except after thirty (30) days
written notice to Lessor and that (to the extent such provision is obtainable on
commercially reasonable terms) it shall not be invalidated by any act or
negligence of Lessor or Lessee, nor by occupancy or use of the Premises for
purposes more hazardous than permitted by such policy, nor by any foreclosure or
other proceedings relating to the Premises, nor by change in title to or
ownership of the Premises. It is understood and agreed that every policy
referred to in this Paragraph 12 may be a blanket policy covering other
locations operated by Lessee or its Affiliates, provided that such blanket
policies otherwise comply with the provisions of this Paragraph.
c. Lessee shall deliver or cause to be delivered to
Lessor and Mortgage Lender duplicate originals of the applicable insurance
policies or original certificates thereof, satisfactory to Lessor and Mortgage
Lender, evidencing the existence of all insurance that is required to be
maintained hereunder, such delivery to be made (i) at the time of execution and
delivery hereof and (ii) at least thirty (30) days prior to the expiration of
any such insurance evidencing renewal or replacement coverage. Lessee shall not
obtain or carry separate insurance concurrent in form or contributing in the
event of loss with that required by this Paragraph 12 unless Lessor and Mortgage
Lender are additional insureds therein, with loss payable and mortgagee
endorsements as provided herein. Lessee shall immediately notify Lessor and
Mortgage Lender whenever any such separate insurance is obtained and shall
deliver to Lessor the policies or certificates evidencing the same.
13. Casualty. Neither Lessee nor Lessor shall have the right to
terminate this Lease if there is a casualty. If all or any part of the Premises
and Ground Lease Property shall be damaged or destroyed there shall be no
abatement or reduction in the amounts payable by the Lessee as Basic Rent,
Supplemental Rent or Additional Rent, and Lessee shall continue to be obligated
to make such payments. All insurance proceeds in respect of a casualty occurring
on the Premises shall be held for disposition in accordance with the provisions
of the Mortgage, if
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any. In the absence thereof, all such insurance proceeds shall be applied by
Lessor to the repair, restoration, replacement and rebuilding of the Premises as
near as practicable to the condition immediately preceding such casualty and the
balance of the casualty proceeds, if any, shall be remitted fifty (50%) percent
to Lessee and fifty (50%) percent to the lessee under the Majestic Lease.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Lessee shall not be required, nor shall Lessor have the right, to pay,
discharge or remove any tax, assessment, xxxx, xxxx or encumbrance, or to comply
with any Legal Requirements applicable to the Premises or any part thereof or
the use thereof, as long as (i) Lessee is diligently and in good faith
contesting the existence, amount or validity thereof by appropriate proceedings;
(ii) Lessee has taken such measures as are necessary to prevent sale, forfeiture
or loss of Lessor's, or a member of Lessor's, interest in the Premises or any
part thereof, and provided that such contest shall not subject Lessor or
Mortgage Lender to the risk of any civil or criminal liability or fine; and
(iii) Lessee shall give such security as may be reasonably required by Lessor to
insure ultimate payment of such tax, assessment, levy, fee, rent, charge, lien,
encumbrance or compliance with Legal Requirements (including penalties,
interest, and reasonable costs and expenses) and to prevent any sale, forfeiture
or loss of Lessor's, or a member of Lessor's, interest in the Premises or part
thereof. Lessee further agrees that each such contest shall be promptly
prosecuted to a final conclusion, that it will hold and save Lessor, its members
and Mortgage Lender harmless against any and all losses, judgments, decrees and
costs (including reasonable attorneys' fees and expenses) in connection
therewith, and that it will, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be levied, assessed,
charged or imposed or be determined to be payable therein, together with all
penalties, fines, interests, costs and expenses thereon or in connection
therewith, and perform all acts the performance of which shall be finally
ordered or decreed as a result thereof. Lessor agrees, at Lessee's sole expense,
to cooperate with Lessee in any contest permitted hereby, to execute any
documents relating thereto that are reasonably requested by Lessee and that do
not adversely affect Lessor, any member of Lessor or any of Lessor's rights
hereunder, and to allow Lessee to bring any such contest, if legally required,
in Lessor's name, provided that Lessee hereby agrees to indemnify Lessor against
any loss, damages or expense incurred by reason thereof.
15. Default Provisions.
a. Any of the following occurrences or acts shall
constitute an Event of Default under this Lease: If (i) Lessee shall fail to pay
any Basic Rent, Supplemental Rent or Additional Rent when due and such failure
shall continue for ten (10) days (except that Basic Rent must in all cases be
paid prior to the last day of the applicable month), (ii) Lessee shall fail to
observe or perform any other provision hereof and such failure shall continue
for forty-five (45) days after notice to Lessee of such failure (provided that
in the case of any such default which cannot be cured by the payment of money
and cannot with diligence be cured within such forty-five (45) day period, if
Lessee shall commence promptly to cure the same and thereafter prosecute the
curing thereof with diligence, the time within which such default may be cured
shall be extended for such period as is necessary to complete the curing thereof
with diligence),
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(iii) Lessee shall suffer Bankruptcy, or (iv) an Event of Default shall occur
and be continuing under the Loan Agreement other than pursuant to Section 6.1(r)
thereof.
b. If an Event of Default shall have occurred and be
continuing for (i) a period of twenty-five (25) days or more and the Agent (as
such term is defined in the Loan Agreement) shall have directed Lessor to
suspend Lessee's rights under this Lease, or (ii) a period of one hundred twenty
(120) days or more (whether or not the Agent shall have so directed Lessor),
Lessor shall have the right to suspend, and if directed to do so by the Agent
shall suspend, Lessee's rights under this Lease and prohibit Lessee and its
employees, contractors, patrons, invitees and agents from entering onto the
Premises and Ground Lease Property or any part thereof until such time as the
Event of Default has been cured.
c. If the Event of Default shall have occurred and be
continuing for (i) a period of twenty-five (25) days or more and the Agent shall
have directed Lessor to terminate this Lease, or (ii) a period of two hundred
seventy (270) days or more (whether or not the Agent shall have so directed
Lessor), Lessor may, and if directed to do so by the Agent shall, terminate this
Lease by providing Lessee with written notice to that effect. Upon such
termination, Lessor shall have the right to evict and dispossess Lessee from the
Premises and Ground Lease Property by appropriate proceedings.
d. Unless Lessor shall have previously terminated this
Lease pursuant to Section 15(c) hereof, no eviction or any other exercise of
rights or remedies by Lessor shall prevent Lessee from curing a default under
this Lease within two hundred seventy (270) days of an Event of Default,
provided that if any payment obligation of Lessee hereunder (i) is not paid
within ten (10) days after the same has become an Event of Default, interest
shall commence to acrue thereon at the rate of interest announced from time to
time by Chase Manhattan Bank as its "prime rate" plus five (5%) percent (but in
no event shall said rate exceed the maximum interest rate permitted by
applicable law), and (ii) is not paid within thirty (30) days after the same has
become an Event of Default, the amount necessary to cure (exclusive of any
interest penalty amounts) shall be increased by one hundred (100%) percent.
e. No expiration or termination of this Lease and no
re-entry or repossession of the Premises and Ground Lease Property, whether any
of the foregoing occur pursuant to this Section 15, by operation of law or
otherwise shall, except to the extent provided by law, relieve Lessee of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination, re-entry or repossession.
f. If Lessee's right to possession of the Premises and
Ground Lease Property has been terminated (or if such right has terminated
because of any expiration or termination of this Lease or re-entry or
repossession of the Premises and Ground Lease Property by reason of the
occurrence of an Event of Default and the following remedy should be available
at law), Lessee will pay to Lessor all Basic Rent, Supplemental Rent and
Additional Rent and other sums required to be paid by Lessee to and including
the date of such expiration, termination, re-entry or repossession, if any; and,
thereafter, Lessee shall, until the end of the period that would have been the
term of this Lease in the absence of such expiration,
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termination, re-entry or repossession, and whether or not the Premises and
Ground Lease Property shall have been relet, be liable to Lessor for, and shall
at Lessor's option either (i) continue to pay to Lessor on a monthly basis all
Basic Rent, Supplemental Rent, Additional Rent and other sums which would have
otherwise been required to be paid by Lessee pursuant to the terms of this Lease
until the end of the period that would have been the full Term of this Lease, or
(ii) pay to Lessor as liquidated and agreed current damages, all Basic Rent,
Supplemental Rent, Additional Rent and other sums that would be payable under
this Lease by Lessee in the absence of such expiration, termination, re-entry or
repossession, less the net proceeds, if any, of any reletting of the Premises
and Ground Lease Property by or on behalf of Lessor, after deducting from such
proceeds all Lessor's expenses in connection with such reletting (including, but
not limited to, all repossession costs, brokerage commissions, reasonable
attorneys' fees and expenses incurred in connection with the termination of this
Lease and with such reletting, employees' expenses, alteration costs and
expenses of preparation for such reletting).
16. Rights of Lessor.
a. No right or remedy hereunder shall be exclusive of any
other right or remedy, but shall be cumulative and in addition to any other
right or remedy hereunder or provided by law, now or hereafter existing. Failure
to insist upon the strict performance of any provision hereof or to exercise any
option, right, power or remedy contained herein shall not constitute a waiver or
relinquishment thereof for the future. Receipt by Lessor of any Basic Rent,
Supplemental Rent, Additional Rent or other sum payable hereunder with knowledge
of the breach or any provision hereof shall not constitute a waiver or such
breach, and no waiver of any provision hereof shall be deemed to have been made
unless made in writing. Lessor shall be entitled to injunctive relief in case of
the violation, or attempted or threatened violation, of any of the provisions
hereof, or to a decree compelling performance of any of the provisions hereof,
or to any other remedy allowed to Lessor in equity or at law.
b. Lessee hereby waives and surrenders for itself and all
those claiming under it, including creditors of all kinds, (i) any right and
privilege which it or any of them may have to redeem the Premises or to have a
continuance of this Lease after termination of Lessee's right of possession by
order or judgment of any court or by any legal process or writ, or after the
termination of the term of this Lease as herein provided, and (ii) the benefits
of any law that exempts property from liability for debt or for distress for
rent.
c. Notwithstanding anything herein to the contrary, Lessor
reserves the right to permit the holder or beneficiary of any rights pursuant to
any Permitted Exceptions to exercise such rights, provided that Lessor shall use
reasonable efforts to cause the holder of such rights to exercise same in such a
manner as to minimize any interference with Lessee's operations.
17. Litigation Expenses.
a. If Lessor or Mortgage Lender shall be made a party to
any third party litigation commenced by or against Lessee as a result of
Lessor's ownership of, or
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Mortgage Lender's interest in, the Premises and the Ground Lease Property, then
Lessee shall provide Lessor and Mortgage Lender, as applicable, with counsel
reasonably satisfactory to Lessor and Mortgage Lender and pay the expenses
thereof or, upon a failure to so defend, pay all costs and reasonable attorneys'
fees and expenses incurred by Lessor and Mortgage Lender in connection with such
litigation.
b. If either party shall bring legal proceedings against
the other by reason of the breach of any provision hereof, or otherwise arising
out of this Lease, the prevailing party in such proceeding shall be entitled to
its costs and reasonable attorneys' fees which shall be payable whether or not
such action is prosecuted to judgment. As used herein, "prevailing party" shall
include, but not be limited to, a party who brings an action against the other
after the other's default or breach, if such action is dismissed upon the
other's payment of the sums allegedly due or performance of the covenants
allegedly breached, or if the plaintiff obtains substantially the relief sought
by it.
18. Assignment and Subletting. Lessee may not sublease all or any
part of the Premises or sub-sublease the Ground Lease Property or assign all or
any part of its interest hereunder without the prior written consent of Lessor
and the Mortgage Lender. No such assignment or lease of the Premises or
sub-sublease of the Ground Lease Property shall modify or limit any right or
power of Lessor hereunder or affect or reduce any obligation of Lessee hereunder
and all such obligations shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no assignment or leasing
had been made. Notwithstanding the foregoing, the consent of the Lessor and
Mortgage Lender shall not be required for the Lessee to assign this Lease to the
purchaser of Lessee's Gaming Operations including, but not limited to, the Xxxxx
Berthing Agreement, provided such purchaser (i) has a senior implied debt rating
or senior unsecured rating of at least B2 by Xxxxx'x Investors Service and a
corporate credit rating of at least B by Standard & Poor's, and (ii) assumes in
writing all of Lessee's obligations pursuant to this Lease, from and after the
date thereof, whereupon Lessee shall be released from all of its obligations and
liabilities hereunder.
19. Mortgages.
a. Lessee acknowledges that Lessor shall execute and
deliver one or more mortgages with respect to its interest in the Premises and
Ground Lease Property (each a "Mortgage") in order to secure Permitted Financing
and, in connection therewith, shall assign its interest in and to this Lease. If
either Lessor or the mortgagee, grantee or trustee under any such Mortgage
provides written notice to Lessee of the existence of such Mortgage and the
address of the mortgagee, grantee or trustee thereunder for the service of
notices, such mortgagee, grantee or trustee, or a shareholder, director,
officer, partner (general or limited) or member of any of the foregoing, shall
be deemed to be a "Mortgage Lender" hereunder and entitled to the rights and
protections afforded a Mortgage Lender in this Lease.
b. If any Mortgage Lender or a person designated by such
Mortgage Lender shall either become the owner of the Property upon the exercise
of any remedy provided for in the Mortgage, such Mortgage Lender or such person
shall have the right to assign to any
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person this Lease or such new lease upon notice to Lessee, without obtaining the
consent or approval of Lessee.
c. No surrender (except a surrender upon the expiration of
the Term) by Lessee to Lessor of this Lease, or of the Premises and Ground Lease
Property or any part thereof, or of any interest therein, and no termination of
this Lease, may occur, nor shall any of the terms hereof be amended, modified,
changed or cancelled, without the prior written consent of the Mortgage Lender,
which consent shall not be unreasonably withheld, conditioned or delayed.
d. No Mortgage Lender shall become personally liable for
the performance or observance of any covenants or conditions to be performed or
observed by Lessor.
e. In the event Mortgage Lender imposes a written condition
to closing on a loan secured by a Mortgage that the Lease be amended in one or
more specific respects and Lessor determines to so amend this Lease, Lessee
shall promptly execute an amendment to this Lease in the form required by
Lessor, provided such amendment does not increase any of the financial or other
obligations of Lessee or materially reduce the obligations of Lessor hereunder.
f. Lessee covenants and agrees to furnish to Mortgage
Lender as soon as practicable after the end of each fiscal quarter of Lessee,
and in no event later than forty-five (45) days thereafter, internally prepared
financial statements of Lessee for such quarter consisting of the balance sheets
of Lessee as of the end of such quarter and the related statements of income and
cash flows for the quarter, accompanied by the certificate of Lessee's chief
financial officer (or equivalent), certifying (i) that such financial statements
were prepared in accordance with generally accepted accounting principles; and
(ii) that no Event of Default has occurred and is continuing under this Lease,
or if such Event of Default is continuing, how Lessee proposes to cure the same.
g. Lessee covenants and agrees to furnish to Mortgage
Lender as soon as practicable after the end of each fiscal year, and in no event
later than one hundred twenty (120) days thereafter, audited financial
statements of Lessee for such fiscal year consisting of the balance sheets of
Lessee as of the end of such fiscal year and the related statements of income
and cash flows for the fiscal year then ended, setting forth in comparative form
the figures for the previous fiscal year, all in reasonable detail and prepared
by a certified public accountant reasonably acceptable to Mortgage Lender,
accompanied by such accountant's unqualified opinion as to such financial
statements and a copy of the management letter issued in connection with such
accountant's audit thereof, and accompanied by the certificate of the chief
financial officer of Lessee (or the equivalent) that such statements fairly
present the financial position, results of operations and cash flows of Lessee
as of such date and for such fiscal year and were prepared in accordance with
generally accepted accounting principles.
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h. Lessee covenants and agrees to promptly notify Mortgage
Lender with respect to (i) the occurrence of any event that materially adversely
affects Lessee, its properties, financial position or ability to conduct its
business operations in substantially the manner and level contemplated to be
conducted as of the date of this Lease, (ii) any modification of any law,
regulation or ordinance of the State of Indiana, or any agency or political
subdivision thereof, that has a material adverse effect on Lessee's ability to
maintain its gaming license or to conduct its gaming business at its present
location, and (iii) the commencement of any action, suit or proceeding before
any court or arbitrator or any governmental department, board, agency or other
instrumentality affecting Lessee or any property of Lessee in which an adverse
determination or result would have a material adverse effect on the business,
operations, property or condition (financial or otherwise) of Lessee or on the
ability of Lessee to perform its obligations under this Lease, stating the
nature and status of such event, amendment, action, suit or proceeding and
providing such additional information as Mortgage Lender may reasonably request.
i. The parties hereto acknowledge and agree that the
Mortgage Lenders are express third party beneficiaries of this Lease, including
for purposes of Sections 15 and 34 hereof.
20. Notices, Demands and Other Instruments. All notices, offers,
consents and other instruments given pursuant to this Lease shall be in writing
and shall be validly given when hand delivered or mailed by prepaid registered
or certified mail, return receipt requested, or by nationally recognized
messenger or courier service guaranteeing overnight delivery, postage prepaid,
to:
Lessee: Xxxxx Indiana, Inc.
Xxx Xxxxxxxxxx Xxxxxx
Xxxx, Xxxxxxx 00000
Attention: General Manager
Lessor: Xxxxxxxxxx Harbor Parking Associates, LLC
Xxx Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000
With a copy to: Xxxxx Indiana, Inc.
Xxx Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000
And a copy to: AMB Parking Associates, LLC
x/x Xxx X. Xxxxxx
Xxxxx 0000, 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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Notices shall be effective upon receipt and, if mailed, shall be presumed
received three (3) business days after being deposited, postage prepaid, in the
United States mail, and if sent via such messenger or courier service of
nationally recognized standing (e.g., Federal Express), shall be presumed
received one (1) business day after being deposited with such messenger or
courier service. Lessor and Lessee each may from time to time specify, by giving
written notice to the other party, (i) any other address as its address for
purposes of this Lease and (ii) any other person or entity that is to receive
copies of notices, offers, consents and other instruments hereunder.
21. Estoppel Certificates. Lessor and Lessee will, from time to
time, upon twenty (20) days prior written request by the other, execute,
acknowledge and deliver to the requesting party a certificate duly signed by an
authorized officer, partner or officer of member, or member of member, as the
case may be, stating that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect as modified, and setting forth such modifications) and the dates to which
Basic Rent, Supplemental Rent, Additional Rent and other sums payable to Lessor
hereunder have been paid, and either stating that to the knowledge of the signer
of such certificate no default exists hereunder or specifying each such default
of which the signer has knowledge. Any such certificate may be relied upon by
any actual or prospective mortgagee, assignee, sublessee or purchaser of the
Premises and Ground Lease Property.
22. No Merger. There shall be no merger of this Lease or of the
estate hereby created with any other estate in the Premises and Ground Lease
Property by reason of the fact that the same person acquires or holds, directly
or indirectly, this Lease or the estate hereby created or any interest herein or
in such estate as well as any other estate in the Premises and Ground Lease
Property or any interest in such other estate.
23. Surrender. Upon the expiration or earlier termination of the
Term hereof, Lessee shall surrender the Premises and Ground Lease Property to
Lessor in the condition in which the Premises and Ground Lease Property were
originally received from Lessor, reasonable wear and tear excepted.
24. Severability; Binding Effect; Amendments to be in Writing. Each
provision hereof shall be separate and independent and the breach of any such
provision by Lessor shall not discharge or relieve Lessee from its obligations
to perform each and every covenant to be performed by Lessee hereunder. If any
provision hereof or the application thereof to any person or circumstance shall
to any extent be invalid or unenforceable, the remaining provisions hereof, or
the application of such provision to persons or circumstances other than those
to which it is invalid or unenforceable, shall not be affected thereby, and each
provision hereof shall be valid and enforceable to the extent permitted by law.
All provisions contained in this Lease shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and assigns of
Lessor and Lessee to the same extent as if each such successor and assign were
named as a party hereto. Subject to the provisions of Paragraph 19(c) hereof,
this Lease may not be changed, modified or discharged except by a writing signed
by Lessor and Lessee, and, provided no Event of Default has occurred and is
continuing thereunder,
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consented to by the lessee under the Majestic Lease, which consent shall not be
unreasonably withheld, conditioned or delayed.
25. Governing Law. This Lease shall be governed by and interpreted
in accordance with the laws of the State of Indiana.
26. Headings and Table of Contents. The headings of various
paragraphs herein and the table of contents have been inserted for convenient
reference only and shall not to any extent have the effect of modifying or
amending the express terms and provisions of this Lease.
27. Subordination to Mortgage Lenders. This Agreement and all
leasehold interests or licenses granted hereunder are and shall be subject and
subordinate at all times and in all respects to the lien of any mortgage granted
by Lessor that now or hereafter affects the Premises or the Ground Lease
Property, or any part thereof, and/or Lessor's interest therein and any and all
advances made or hereafter made upon the security thereof, together with any
interest thereon and all other sums secured by such mortgage, and to any
agreement at any time modifying, supplementing, restating, extending or
replacing any such mortgage. This Paragraph 27 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, however, Lessee shall execute and deliver promptly any
certificate that Lessor and/or any mortgagee and/or its respective successors
and assigns may request. Lessee agrees that it will take no steps to terminate
this Lease or xxxxx amounts payable hereunder without giving any mortgagee
requesting same, written notice of any default by Lessor and the opportunity to
cure such default (without any obligation on the part of any such person to cure
such default) within forty-five (45) days thereafter or such longer period as
may be reasonably necessary to affect such cure. Upon any mortgagee's acquiring
or succeeding to the interest of Lessor under this Agreement Lessee shall, and
upon the written request of such mortgagee, and without further instruments of
attornment, fully warrant to, attorn to and recognize such mortgagee as Lessor
under this Agreement. The foregoing provisions of this Paragraph shall inure to
the benefit of any such mortgagee, shall be self-operative, and no further
instrument shall be required to give effect to said provisions. Upon demand of
any such mortgagee, Lessee agrees to execute instruments to evidence and confirm
the foregoing provisions of this Paragraph 27 satisfactory to any such
mortgagee. The foregoing subordination and agreements on behalf of Lessee are
expressly conditioned upon Lessor's obtaining a non- disturbance agreement for
the benefit of Lessee in form and substance reasonably acceptable to Lessee from
each and every mortgagee.
28. Holding Over. If Lessee remains in the possession of the
Premises and Ground Lease Property after the expiration of the Term, such
continued possession shall, if rent is paid by Lessee and accepted by Lessor,
create a month-to-month tenancy on the terms and conditions herein specified and
at a Basic Rent equal to such portion of the Basic Rent allocable to the month
prior to the expiration of the Term, and said tenancy may be terminated at any
time by either party by thirty (30) days prior written notice to the other
party.
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29. Quiet Enjoyment. At all times during the Term, so long as no
Event of Default shall exist and be continuing, the rights and privileges of
Lessee hereunder and to the possession and quiet enjoyment of the Premises and
Ground Lease Property shall not be disturbed by Lessor or any person acting
though or on behalf of Lessor except by persons exercising rights under a
Permitted Exception.
30. Disclaimer of Lessor's Liability for Consequential Damages.
Notwithstanding anything herein to the contrary, in no event shall Lessor have
responsibility or liability to Lessee or Lessee's members, parents, Affiliates,
shareholders, employees, directors or other representatives, or Affiliates
thereof, for (a) indirect damages, (b) consequential damages, (c) lost profits
or revenues, or (d) damages for diminution or loss of public image, reputation
or goodwill for any alleged or actual breach of this Lease or any alleged or
actual breach of any duty (whether such duty arises or is alleged to arise from
contract, statute, common law or otherwise), even if same result from or are
caused by a breach by Lessor of this Lease or of the aforementioned duties.
31. Counterparts. This Lease may be executed in any number of
counterparts, each of which as executed shall be deemed to be an original, but
all such counterparts shall constitute one and the same instrument.
32. Recording. Either party shall have the right to place this Lease
or a memorandum thereof of record in Lake County, Indiana.
33. Certain Obligations Joint. Lessee acknowledges that its
obligations under Sections 4(b), (c) and (d), 6(e), 8(a), 9, 10 and 12 (the
"Joint Obligations") are joint and several with the obligations of the lessee
under the Majestic Lease pursuant to Sections 4(b), (c) and (d), 6(f), 8(a), 9,
10 and 12 of the Majestic Lease. Lessor agrees to accept performance by Lessee
and/or the lessee under the Majestic Lease of the Joint Obligations as
performance of such obligations under both this Lease and the Majestic Lease.
34. Lessee's Representations and Warranties. Lessee represents and
warrants to Lessor and Mortgage Lenders as follows:
a. Lessee is a Delaware corporation, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
power and authority to execute and deliver and to perform all of its obligations
under this Lease and the execution and delivery hereof and the carrying out of
the transactions contemplated hereby will not violate, conflict with or
constitute a default under the terms of any document filed by Lessee pursuant to
the Securities Exchange Act of 1934, as amended ("Lessee's Filings"), or violate
any law, regulation or order of the United States or the State of Indiana or
agency or political subdivision thereof, including without limitation the
Indiana Gaming Commission, or any court order or judgment in any proceeding to
which Lessee is or was a party or by which any property of Lessee is bound.
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b. The execution, delivery and performance by Lessee of
this Lease and the Berthing Agreement have been duly authorized by all necessary
corporate action.
c. This Lease has been duly executed and delivered by the
authorized officers of Lessee and is the legal, valid and binding obligations of
Lessee, enforceable against Lessee in accordance with its terms except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
d. The financial statements included in the Lessee's
Filings are true and correct in all material respects, have been prepared in
accordance with generally accepted accounting principles, and fairly present the
financial condition of the subject thereof as of the respective dates and for
the respective periods thereof. No materially adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof. None
of the aforesaid financial statements and none of the representations and
warranties set forth herein, contain any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
e. No consent, approval, order or authorization of or
registration, declaration or filing with any governmental authority, including
without limitation the State of Indiana, the Indiana Gaming Commission, the City
of Gary, Indiana is required in connection with (i) the valid execution and
delivery of this Lease, or (ii) the carrying out or performance of any of the
transactions required or contemplated hereby, or, if required, such consent,
approval, order or authorization has been obtained or such registration,
declaration or filing has been accomplished.
f. There is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or other agency now
pending or, to Lessee's knowledge, threatened against or affecting Lessee which,
if adversely determined, would have a material adverse effect on Lessee or its
business or financial condition or its ability to carry out its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date and year first above written.
Lessor:
XXXXXXXXXX HARBOR PARKING
ASSOCIATES, LLC
By: Xxxxx Indiana, Inc. Member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, Executive Vice President
By: AMB Parking, LLC
By: AMB Development, Inc., Member
By: /s/ Xxx X. Xxxxxx
------------------------------
Xxx X. Xxxxxx, President
Lessee:
XXXXX INDIANA, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, Executive Vice President
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Schedule A
Legal Description of Lessor's Real Property
PARCEL A DESCRIPTION
A parcel of land in the Southeast Quarter of Fractional Section 23, Township 37
North, Range 9 West of the Second Principal Meridian, in the City of Gary, Lake
County, Indiana, more particularly described as follows:
Beginning at the Southerly corner of Xxxxxxxxxx Harbor Riverboats, L.L.C. Parcel
1 as recorded in Document No. 95067683 in the Office of the Recorder of said
County;
1. thence North 35(degrees)53'21" East along the southeasterly line of said
Parcel 1, a distance of 626.90 feet to the easterly corner of said
Parcel 1;
2. thence North 54(degrees)06'39" West, a distance of 289.37 feet along the
Northeasterly line of said Parcel 1 to a point on the Northwesterly line
of a parcel of patented land recorded in Lake County Deed Record 392,
Page 312;
3. thence North 35(degrees)53'21" East, a distance of 44.58 feet along the
Northwesterly line of said parcel;
4. thence South 54(degrees)06'39" East a distance of 118.82 feet;
5. thence North 35(degrees)53'21" East, a distance of 82.62 feet to the
Northeasterly line of a parcel of patented land recorded in Lake County
Deed Record 473, Page 29;
6. thence South 54(degrees)06'39" East along said line a distance of 160.00
feet;
7. thence South 35(degrees)53'21" West, a distance of 82.62 feet;
8. thence South 54(degrees)06'39" East a distance of 410.65 feet;
9. thence South 35(degrees)53'21" West, a distance of 551.21 feet to a
point of non-tangent curve;
10. thence 79.52 feet along an arc convex to the Northwest, said curve
having a radius of 94.22 feet, and subtended by a long chord which bears
South 65(degrees)28'30" West, a distance of 77.18 feet;
11. thence South 42(degrees)41'33" West, a distance of 53.53 feet to the
Northeasterly right-of-way line of the Elgin, Joliet, & Eastern Railway
Company as recorded in Lake County Deed Record 117, Page 10;
12. thence North 54(degrees)06'39" West, a distance of 355.66 feet along
said Northeasterly right-of-
way line to the POINT OF BEGINNING, containing 6.678 acres, more or
less.
PARCEL B DESCRIPTION
A parcel of land in the Southeast Quarter (SE 1/4) of Fractional Section Twenty-
three (23) and the Northeast Quarter (NE 1/4) of Section Twenty-Six (26),
Township Thirty-Seven North (T37N), Range Nine West (R9W) of the Second
Principal Meridian, in the City of Xxxx, Lake County, Indiana, more particularly
described as follows:
Beginning at the Northeasterly corner of Xxxxxxxxxx Harbor Riverboats, L.L.C.
Parcel 2 as recorded in Document No. 95067683 in the Office of the Recorder of
said County;
1) thence South 54(degrees)06'39" East along the Southeasterly line of said
Parcel 4 of Exhibit A as recorded in Lake County Document No. 96052358
and along the Southwesterly line of the Fourth (4th) parcel as described
in Lake County Deed Record 282, Page 248, a distance of 475.31 feet;
2) thence South 36(degrees)02'19" West, a distance of 440.01 feet;
3) thence North 49(degrees)38'51" West, a distance of 457.29 feet to the
Southeasterly line of said Parcel 2;
4) thence North 34(degrees)13'33" East along said Southeasterly line, a
distance of 16.84 feet;
5) thence North 30(degrees)46'03" East along said Southeasterly line, a
distance of 203.32 feet;
6) thence North 36(degrees)00'21" East along said Southeasterly line, a
distance of 185.08 feet to the POINT OF BEGINNING, containing 4.548
acres, more or less.
Schedule B
Appurtenances
.. Indiana Department of Environmental Management, Permit Approval No. 9283
dated December 28, 1995 for sanitary sewer system to be locate from
Xxxxxxxxxx Harbor, along X.X. Xxxxxxx 00 to the Gary Airport entrance.
.. Indiana Department of Environmental Management, Permit Approval No.
M-2483 dated December 6, 1995 for water main service to Xxxxxxxxxx
Harbor Riverboats.
.. Utility Easement between the Gary Regional Airport Authority, as
grantor, and Xxxxxxxxxx Harbor Riverboats, L.L.C., as grantee, dated
February 7, 1996.
.. Utility Easement between Swift Transportation Co., Inc., as grantor, and
Xxxxxxxxxx Harbor Riverboats, L.L.C., as grantee.
.. Utility Easement between Xxxxxxxx Engineering Corporation, as grantor,
and Xxxxxxxxxx Harbor Riverboats, L.L.C., as grantee, dated March 11,
1996.
.. License dated February 16, 1996 between Elgin, Joliet an Eastern Railway
Company, as licensor, and Xxxxxxxxxx Harbor Riverboats, L.L.C., as
licensee.
.. Agreement Xx. XXX-000000 dated March 11, 1996 between CS Transportation,
Inc. and Xxxxx Indiana, Inc.
.. Agreement for Pipeline Occupation between Consolidated Rail Corporation
and Xxxxxxxxxx Harbor Riverboats, L.L.C. dated January 5, 1996.
.. State of Indiana Department of Transportation Right xx Xxx Xxxxxx Xx.
00XX00000.
.. Access Easement dated June 30, 1995 between Lehigh Portland Cement
Company and Xxxxx Indiana, Inc., as amended through the date hereof.
.. Easement Agreement dated June 30, 1995 between Lehigh Portland Cement
Company and Xxxxx Indiana, Inc., as amended through the date hereof.
.. Pavilion Easement Agreement dated September 29, 2000 between Gary New
Century, LLC, Xxxxxxxxxx Harbor Riverboats, L.L.C. and Xxxxxxxxxx Harbor
Parking Associates LLC.
.. Agreement by and between Elgin, Joliet and Eastern Railway Company and
Xxxxxxxxxx Harbor Riverboats, L.L.C., dated as of July 3, 1996, and
Memorandum of Agreement with respect thereto and of even date therewith
filed for record in Lake County, Indiana as Instrument No. 96049455,
excluding therefrom, however, any right to construct any "Overpass" (as
such term is defined in such July 3, 1996 Agreement).
.. Special Warranty Deed between Elgin, Joliet and Eastern Railway Company
and Xxxxxxxxxx Harbor Riverboats, L.L.C., dated July 1, 1996 and filed
for record in Lake County, Indiana on August 5, 1996 as Instrument No.
96052358.
.. Special Warranty Deed between Xxxxxxxxxx Harbor Riverboats, L.L.C., and
Elgin, Joliet and Eastern Railway Company dated July 1, 1996 and filed
for record in Lake County, Indiana on August 5, 1996 as Instrument No.
96052357.
.. License by and between Elgin, Joliet and Eastern Railway Company and
Xxxxxxxxxx Harbor Riverboats, L.L.C., dated February 16, 1996 and filed
for record in Lake County, Indiana on July 12, 1996 as Instrument No.
96046520.
.. Amendment to License by and between Elgin, Joliet and Eastern Railway
Company and Xxxxxxxxxx Harbor Riverboats, L.L.C., dated July 3, 1996 and
filed for record in Lake County, Indiana on July 20, 1996 as Instrument
No. 96050596.
.. Easement Agreement by and between Xxxxxxxxxx Harbor Riverboats, L.L.C.,
and Elgin, Joliet and Eastern Railway Company dated July 1, 1996 an
filed for record in Lake County, Indiana on August 5, 1996 as Instrument
No. 96052359.
.. Grant of Exclusive Easement by and between Elgin, Joliet and Eastern
Railway Company and Xxxxxxxxxx Harbor Riverboats, L.L.C., dated July 3,
1996 and filed for record in Lake County, Indiana, excluding therefrom,
however, any right to construct any "Overpass" (as such term is defined
in such July 3, 1996 Grant of Exclusive Easement).
.. Assignment and Assumption Agreement by and between Elgin Joliet and
Eastern Railway Company and Xxxxxxxxxx Harbor Riverboats, L.L.C., dated
as of July 3, 1996 and filed for record in Lake County, Indiana.
.. License from Indiana Department of Transportation for landscaping DOT
property adjacent to entryway.
.. License from Indiana Department of Transportation for curbing and
lighting DOT property adjacent to entryway.
Schedule C
Legal Description of Ground Lease Property
A parcel of land in the South Half of Fractional Section 23, and the North Half
of Section 26, Township Thirty-seven North, Range Nine West of the Second
Principal Meridian in the City of Xxxx, Lake County, Indiana, (said parcel
consisting of parts of Parcels 2, 3, and 4 conveyed to Xxxxxxxxxx Harbor
Riverboats L.L.C. as recorded in Exhibit A of Lake County Document 96052358, and
also a part of Parcel 2 conveyed to Xxxxxxxxxx Harbor Riverboats L.L.C. as
recorded in Lake County Document 95067683) more particularly described as
follows:
Commencing at a capped iron rod at the Southwest corner of the Northwest Quarter
of said Section 23; thence North 00(degrees)23'05" West (said bearing being
relative to the NAD83 Indiana State Plane Coordinate System, West Zone) along
the West line of said Section 23 a distance of 79.78 feet to the Southwesterly
corner of said Parcel 2 recorded in said Lake County Document 95067683; thence
South 32(degrees)06'05" East along the Southwesterly line of said Parcel 2 a
distance of 1079.86 feet to the POINT OF BEGINNING of this description;
1) thence North 43(degrees)05'41" East a distance of 441.63 feet to the
Northerly corner of Parcel 2 as recorded in Exhibit A of Lake County
Document 96052358;
2) thence South 50(degrees)40'01" East along the Northeasterly line of said
Parcel 2 a distance of 1298.16 feet to the Easterly corner of said
Parcel 2;
3) thence North 43(degrees)05'41" East along the Northwesterly line of
Parcel 4 as recorded in Exhibit A of Lake County Document 96052358 a
distance of 119.79 feet to the Northerly corner of said Parcel 4;
4) thence South 54(degrees)06'39" East along the Northeasterly line of said
Parcel 4 a distance of 1531.07 feet to the Northwesterly line of
Easement 3 on Drawing No. Hotel 2;
5) thence South 35(degrees)33'50" West along the Northwesterly line of said
Easement 3 a distance of 438.15 feet;
6) thence South 29(degrees)03'20" West along the Northwesterly line of said
Easement 3 a distance of 257.06 feet;
7) thence South 36(degrees)30'36" along the Northwesterly line of said
Easement 3 a distance of 146.80 feet;
8) thence South 42(degrees)59'32" West along the Northwesterly line of said
Easement 3 a distance of 226.38 feet;
9) thence 2224.97 feet along the arc of a nontangent curve on the
Southwesterly line of Parcel 3 as recorded in Exhibit A of Lake County
Document 96052358, said arc being convex to
the Southwest, with a radius of 17108.80 feet and subtended by a long
chord which bears North 44(degrees)00'29" West, 2223.40 feet;
10) thence North 40(degrees)16'57" West along the Southwesterly line of said
Parcel 3 a distance of 735.71 feet to the Westerly corner of said Parcel
3;
11) thence North 43(degrees)05'41" East along the Northwesterly line of said
parcel a distance of 20.13 feet to the POINT OF BEGINNING, containing
50.808 acres (2213214 sq ft), more or less;
BUT EXCEPTING THEREFROM ALL OF THE FOLLOWING:
A parcel of land leased to Xxxxx Indiana, Inc. pursuant to a Ground Lease dated
as of August 29, 1997, said parcel being more particularly described as follows:
Commencing at the Southwest corner of the Northwest Quarter of said Fractional
Section 23, said corner being 2641.10 feet Northerly of the Southwest corner of
said Section; thence North 00(degrees)23'05" West along the West line of said
Section a distance of 79.78 feet to the Southwesterly corner of said parcel 2 as
recorded in Lake County Document 95067683; thence continuing North
00(degrees)23'05" West along the West line of said parcel a distance of 108.12
feet to the Northwesterly corner of said parcel; thence South 38(degrees)53'27"
East along a Northeasterly line of said parcel a distance of 883.40 feet to a
corner of said parcel;
thence South 47(degrees)00'19" East along a Northeasterly line of said parcel a
distance of 1539.00 feet to a corner of said parcel; thence North
43(degrees)05'41" East along a Northwesterly line of said parcel a distance of
292.90 feet to a corner of said parcel; thence South 54(degrees)06'39" East
along a Northeasterly line of said parcel a distance of 662.68 feet to the POINT
OF BEGINNING of this description;
1) thence South 54(degrees)06'39" East a distance of 296.97 feet;
2) thence South 65(degrees)25'55" East a distance of 53.53 feet;
3) thence South 70(degrees)15'11" East a distance of 56.52 feet;
4) thence South 54(degrees)04'20" East a distance of 103.67 feet;
5) thence South 46(degrees)56'38" East a distance of 102.87 feet;
6) thence South 54(degrees)20'39" East a distance of 79.99 feet;
7) thence South 43(degrees)05'41" West a distance of 79.75 feet;
8) thence North 46(degrees)54'19" West a distance of 34.88 feet;
9) thence South 84(degrees)41'11" West a distance of 257.02 feet;
10) thence North 55(degrees)18'49" West a distance of 227.16 feet;
11) thence North 15(degrees)18'49" West a distance of 295.96 feet;
12) thence North 43(degrees)05'02" East a distance of 50.13 feet to the
POINT OF BEGINNING, containing 2.823 acres, more or less, for a net area
of 47.985 acres, more or less.
Schedule D
Permitted Exceptions
All matters set forth in Part II, Schedule B of Title Commitment issued by
Meridian Title Corporation, as agent for Lawyers Title Insurance Corporation,
dated March 2, 2001, file # 1261LK01, as updated by that certain pro forma title
insurance policy issued in connection with said title commitment.
Such other agreements as are subsequently entered into by Lessor and/or Lessee
in connection with the development, construction, use, operation and/or
maintenance of the Premises and Ground Lease Property as contemplated herein,
provided such agreements have been consented to by Lessor, Lessee and Mortgage
Lender (which consent shall not be unreasonably withheld, conditioned or
delayed).
