EXHIBIT 10.12
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LICENSE
AGREEMENT
BY AND BETWEEN
HAMMOND PORT AUTHORITY
EMPRESS CASINO HAMMOND CORPORATION
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DATED AS OF JUNE 21, 1996
TABLE OF CONTENTS
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RECITALS..................................................................... 1
ARTICLE I DEFINITIONS........................................................ 1
ARTICLE II GRANT............................................................. 6
Section 2.01. Rights Granted........................................... 6
Section 2.02. Parking.................................................. 7
Section 2.03. Rights Limited........................................... 7
Section 2.04. Nature of Rights Granted to the Developer................ 7
Section 2.05. "AS IS" Condition........................................ 7
Section 2.06. Enjoyment................................................ 8
ARTICLE III PORT AUTHORITY'S RESERVED RIGHTS................................. 8
Section 3.01. General.................................................. 8
ARTICLE IV TERM.............................................................. 8
Section 4.01. Term..................................................... 8
Section 4.02. Extension Periods........................................ 8
Section 4.03. Holding Over............................................. 9
ARTICLE V CONSIDERATION...................................................... 9
Section 5.01. Passenger Payment........................................ 9
Section 5.02. Accounting for Passenger Payment......................... 10
Section 5.03. Marina Payments.......................................... 11
Section 5.04. Slip Fees................................................ 11
Section 5.05. Compliance with Development Agreement.................... 13
ARTICLE VI USE............................................................... 13
Section 6.01. Permitted Uses........................................... 13
Section 6.02. Compliance with Laws, Insurance Policies................. 13
Section 6.03. Negative Covenants....................................... 14
Section 6.04. Hazardous Substances..................................... 14
ARTICLE VII IMPROVEMENTS..................................................... 15
Section 7.01. Commencement and Completion of Construction.............. 15
Section 7.02. Governmental Approvals................................... 15
Section 7.03. Title to Improvements.................................... 15
Section 7.04. Refinancing of Bonds..................................... 15
ARTICLE VIII ASSIGNMENT AND ENCUMBRANCES..................................... 16
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Section 8.01. Assignments and Subleases............................... 16
Section 8.02. Encumbrances............................................ 16
Section 8.03. General................................................. 17
ARTICLE IX TAXES AND UTILITY EXPENSES........................................ 17
Section 9.01. Payment of Taxes and Utility Expenses................... 17
Section 9.02. Proration of Real Estate Taxes.......................... 17
Section 9.03. Right to Contest........................................ 18
Section 9.04. Distribution of Overpayment............................. 18
ARTICLE X MAINTENANCE, REPAIRS AND ALTERATIONS............................... 18
Section 10.01. Maintenance and Repair by the Developer................. 18
Section 10.02. Alterations............................................. 18
ARTICLE XI MECHANICS' LIENS; INDEMNIFICATION................................. 19
Section 11.01. Mechanics' Liens........................................ 19
Section 11.02. Indemnification by the Developer........................ 19
ARTICLE XII INSURANCE........................................................ 20
Section 12.01. Liability Insurance..................................... 20
Section 12.02. Proof of Insurance...................................... 20
Section 12.03. Adjustment in Insurance................................. 20
Section 12.04. Waiver of Subrogation................................... 21
Section 12.05. Insurance Proceeds...................................... 21
Section 12.06. General Provisions...................................... 21
ARTICLE XIII DESTRUCTION..................................................... 22
Section 13.01. The Developer's Obligation to Repair.................... 22
Section 13.02. No Abatement............................................ 22
ARTICLE XIV CONDEMNATION..................................................... 22
Section 14.01. Total Condemnation...................................... 22
Section 14.02. Proceeds of Total Condemnation.......................... 22
Section 14.03. Partial Condemnation.................................... 23
Section 14.04. Restoration............................................. 23
Section 14.05. Temporary Condemnation.................................. 23
Section 14.06. Rights to Appear........................................ 24
Section 14.07. Limitation on Eminent Domain Powers..................... 24
ARTICLE XV MORTGAGES......................................................... 24
ARTICLE XVI DEVELOPER'S RIGHT TO CURE THE PORT AUTHORITY'S DEFAULTS.......... 24
Section 16.01. Notices................................................. 24
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Section 16.02. Right to Cure.......................................... 25
Section 16.03. No Termination of HPA Footprint Sublease............... 25
Section 16.04. No Termination of the HPA Parking Lease................ 25
ARTICLE XVII DEFAULTS....................................................... 26
Section 17.01. Events of Default...................................... 26
Section 17.02. Extensions............................................. 27
Section 17.03. Remedies............................................... 27
Section 17.04. Default by Port Authority.............................. 27
ARTICLE XVIII BANKRUPTCY AND INSOLVENCY..................................... 28
Section 18.01. Certain Events of Default Specified.................... 28
Section 18.02. Preservation of Agreement.............................. 29
ARTICLE XIX SPECIFIC PERFORMANCE............................................ 29
ARTICLE XX SURRENDER........................................................ 29
Section 20.01. Surrender of Improvements.............................. 29
Section 20.02. Removal of Certain Property............................ 29
Section 20.03. Survival of Terms...................................... 30
ARTICLE XXI NO WAIVER.............................................. 30
ARTICLE XXII PORT AUTHORITY'S ASSIGNMENTAND THE PARTIES' LIABILITY
LIMITATION............................................. 30
Section 22.01. Assignment by the Port Authority....................... 30
Section 22.02. Limitations on Rights of Recovery...................... 31
ARTICLE XXIII FORCE MAJEURE.......................................... 31
ARTICLE XXIV NOTICES................................................ 31
ARTICLE XXV CERTIFICATES........................................... 33
ARTICLE XXVI GENERAL................................................ 34
Section 26.01. Governing Law.......................................... 34
Section 26.02. Partial Invalidity..................................... 34
Section 26.03. Remote Vesting......................................... 34
Section 26.04. Interpretation......................................... 34
Section 26.05. Entire Agreement....................................... 34
Section 26.06. Parties................................................ 34
Section 26.07. Construction of Agreement.............................. 35
Section 26.08. Attorneys' Fees........................................ 35
Section 26.09. Authority.............................................. 35
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Section 26.10. Standards for Consent................................... 35
Section 26.11. Nature of Agreement..................................... 35
ARTICLE XXVII DISPUTE RESOLUTION AND TERMINATION...................... 36
Section 27.01. Alternative Dispute Resolution.......................... 36
Section 27.02. Arbitration............................................. 36
Section 27.03. Actions During Pendency of Dispute...................... 37
ARTICLE XXVIII DEVELOPER'S COMMITMENTS................................. 38
Section 28.01. Construction Commitments................................ 38
ARTICLE XXIX PORT AUTHORITY'S COMMITMENT............................. 39
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AGREEMENT
This Agreement is entered into this 21st day of June, 1996, by and
between the Hammond Port Authority (the "Port Authority"), and Empress Casino
Hammond Corporation, an Indiana corporation (the "Developer").
RECITALS
WHEREAS, the Port Authority, acting pursuant to its authority and
powers under Indiana Code (S) 8-10-5-1, et seq., desires to grant to the
Developer certain rights with respect to that portion of the Xxxxxxx Xxxxxx and
Lake Michigan which is under its jurisdiction, subject to and conditioned upon
the terms and provisions set forth herein; and
WHEREAS, the Developer desires to obtain certain rights from the Port
Authority, subject to and conditioned upon the terms and provisions set forth
hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, the Port Authority and the Developer hereby
covenant and agree as follows:
ARTICLE I
DEFINITIONS
The following terms, when used in the preceding recitals or the text
of this Agreement with initial capital letters, have the following respective
meanings:
"Act" means the Riverboat Gambling Act as established by Indiana Code
(S) 4-33-1-1, et seq. and all amendments thereto and all rules and orders
promulgated thereunder.
"Agreement" means this fully executed Agreement.
"Applicable Laws" means all laws, rules, regulations, ordinances,
codes, administrative actions and/or orders of any court or governmental agency
or unit, whether federal, state or local, properly exercising or having
jurisdiction with respect to or over the subject matter in question.
"Boat" means the vessel named and known as Empress III, a riverboat
casino owned or leased and to be operated by the Developer on Lake Michigan from
Hammond, Indiana, that may be further modified, improved, equipped and/or
replaced by the Developer from time to time as provided in the Development
Agreement.
"City" means the municipal corporation of Hammond, Indiana.
"Clipper Lease" means the Lease Agreement by and between the Port
Authority and the Developer, dated February 9, 1993.
"Clipper Removal Agreement" means the Agreement Respecting The S/S
Milwaukee Clipper, dated March 20, 1996, by and between the Developer and the
Port Authority.
"Commencement Date" has the meaning set forth in Section 4.01.
"Commission" means the City of Xxxxxxx acting by and through its
Redevelopment Commission.
"Condemnation Proceeds" means the total aggregate award, or settlement
in lieu thereof, in the event of a total taking or Constructive Total Taking of
the Improvements.
"Constructive Total Taking" means a taking of such scope that the
remaining portion of the Improvements is insufficient to permit the restoration
of the Improvements so as to be suitable for the primary use permitted by
Section 2.01.
"County" means Lake County, Indiana.
"Development Agreement" means the Hammond Riverboat Gaming Project
Development Agreement entered into or to be entered into by and among the City
of Hammond, Indiana, the Commission, and the Developer, as the same has been or
may hereafter be amended.
"DMS" means DMS of Hammond, Inc., and any subsequent holder of DMS of
Indiana, Inc.'s right, title or interest under the Ground Lease and the Port
Authority Lease.
"Docking Facilities" has the meaning set forth in the Development
Agreement.
"Environmental Complaint" has the meaning set forth in Section 6.05.
"Environmental Laws" means federal, state and local laws, statutes,
ordinances, rules or regulations, effective on or after the date of execution of
this Lease, relating to pollution or protection of the environment, including
laws or regulations relating to emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment (including, without
limitation, ambient air, surface water, ground water or land) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances or imposing standards of
conduct or liability concerning underground storage tanks. Such laws shall
include, but
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not be limited to, the Resource Conservation and Recover Act of 1976 (RCRA), 42
U.S.C. (S)(S) 690 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S) 9601-9657, as
amended by the Superfund Amendments and Reauthorization Act of 1986 (XXXX); the
Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq.; the Clean
Air Act, 42 U.S.C. (S)(S) 741 et seq.; the Clean Air Act, 33 U.S.C. (S) 7401;
the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2629; the Safe Drinking
Water Act, 42 U.S.C. (S)(S) 300f-300j; the Atomic Energy Act, 42 U.S.C. (S)(S)
2011, et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
(S)(S) 11001 et seq.; Indiana Code, Title 13 - Environment; or any amendments
thereto; or any similar federal, state or local environmental laws, statutes,
ordinances, or any regulations, orders or decrees now or hereafter promulgated
thereunder.
"Event of Default" has the meaning set forth in Section 17.01.
"Extension Period" has the meaning set forth in Section 4.02.
"Gaming Commission" means the Indiana Gaming Commission as established
pursuant to the Act.
"Ground Lease" means the Ground Lease Agreement among the Port
Authority, as lessor, Hammond, as co-lessor, and DMS, as lessee, dated as of
June 30, 1989, as the same has been or may hereafter be amended or modified.
"Guest Facilities" has the meaning set forth in the Development
Agreement.
"Hammond" means the City of Hammond, Indiana, a municipal corporation.
"Xxxxxxx Xxxxxx" means the marina and related improvements located on
that portion of Lake Michigan and the adjacent lake front that are subject to
the Port Authority's jurisdiction and generally described and/or depicted on
Exhibit A attached hereto and incorporated herein by this reference.
"Hazardous Discharge" has the meaning set forth in Section 6.05.
"Hazardous Substances" means any substance:
(a) The presence of which requires investigation, response, remediation or
other corrective action under the Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. (S)(S) 690 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S) 9601-9657, as
amended by the Superfund Amendments and Reauthorization Act of 1986 (XXXX); the
Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901 et seq.; the
Federal Water Pollution
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Control Act, 33 U.S.C. (S)(S) 1251 et seq.; the Clean Air Act, 42 U.S.C. (S)(S)
741 et seq.; the Clean Water Act, 33 U.S.C. (S) 7401; the Toxic Substances
Control Act, 15 U.S.C. (S)(S) 2601-2629; the Safe Drinking Water Act, 42 U.S.C.
(S)(S) 300f-300j; the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. (S)(S) 11001 et seq.; or any amendments thereto; or any similar federal,
state or local environmental laws, statutes or ordinances, or any regulations,
orders or decrees now or hereafter promulgated thereunder; or
(b) Which is defined as "hazardous waste," "hazardous substance," "solid
waste," "infectious waste," "toxic substance," "radioactive waste," or is
otherwise regulated by the Resource Conservation and Recover Act of 1976 (RCRA),
42 U.S.C. (S)(S) 690 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S) 9601-9657, as
amended by the Superfund Amendments and Reauthorization Act of 1986 (XXXX); the
Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq.; the Clean
Air Act, 42 U.S.C. (S)(S) 741 et seq.; the Clean Air Act, 33 U.S.C. (S) 7401;
the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2629; the Safe Drinking
Water Act, 42 U.S.C. (S)(S) 300f-300j; the Atomic Energy Act, 42 U.S.C. (S)(S)
2011, et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
(S)(S) 11001 et seq.; Indiana Code, Title 13 - Environment; or any amendments
thereto; or any similar federal, state or local environmental laws, statutes,
ordinances, or any regulations, orders or decrees now or hereafter promulgated
thereunder.
"HPA Footprint Sublease" means the Intergovernmental Sub-Lease
Agreement between the Port Authority, as landlord, and the Commission, as
tenant, dated as of October 13, 1995, as the same has been or may hereafter be
amended.
"HPA Parking Lease" means the Intergovernmental Lease Agreement and
Grant of Easement entered into or to be entered into between the Port Authority,
as landlord, and the Commission, as tenant, pursuant to which the Port Authority
has or will lease the Parking Parcels to the Commission, as the same has been or
may hereafter be amended.
"Improvements" means all improvements (including, without limitation,
the Docking Facilities, any Infrastructure Facilities, landscaping, walkways,
and docking, mooring and marina facilities) that are hereafter located or
constructed by the Developer (a) in the Xxxxxxx Xxxxxx, or (b) in Lake Michigan
in the vicinity of the Xxxxxxx Xxxxxx to the extent the Port Authority has any
interest therein; provided, that the Improvements shall not include any
Improvements that are owned by the Commission or subject to the terms and
conditions of the Sublease; and provided further, that the Improvements shall
not include any improvements or facilities that are anchored or constructed on
the Redevelopment Parcel notwithstanding that any such improvements or
facilities encroach or protrude into the Xxxxxxx Xxxxxx.
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"Infrastructure Facilities" means all pipelines, conduits, ducts,
cables, wires, manholes, vaults, tanks, tunnels or other manmade facilities or
structures, and any encasements containing such facilities, which have been or
will hereafter be installed for the purpose of furnishing, storing, removing or
transmitting electricity, gases, steam, liquid petroleum products, telephone or
other communications, cable television, computer signals or data, sewage
drainage, traffic or other control systems, or water or other utilities or
services to the Improvements.
"Initial period" has the meaning set forth in Section 4.01.
"License" means an owner's license as defined in Indiana Code (S) 4-
33-2-15 that allows the Developer to operate a riverboat casino on Lake Michigan
from the City of Hammond, Indiana.
"License Date" means the date on which the License is issued to the
Developer by the Gaming Commission.
"Parking Access Parcel" has the meaning set forth in the Sublease.
"Parking Parcels" has the meaning set forth in the Sublease.
"Port Authority" means the Xxxxxxx Port Authority; provided, that it
is expressly understood and agreed by the Developer that any obligations of the
Port Authority under this Agreement may be fulfilled by any subdivision, unit,
agency, commission, department, authority, instrumentality, officer or
representative, or any combination thereof, of the City.
"Port Authority Lease" means the Lease Agreement among the Port
Authority, as lessee, Hammond and DMS, as lessor, dated as of June 30, 1989, as
the same has been or may hereafter be amended or modified.
"Project" has the meaning set forth in the Development Agreement.
"Real Estate Taxes" means and includes all ad valorem real property
taxes and assessments levied upon or with respect to (or, if any such levy is
upon or with respect to a parcel of real estate and improvements thereon of
which the Improvements are a part, then the portion thereof properly allocable
and relating to) the Improvements, or any part thereof, and all taxes, levies
and charges which may be levied or imposed by any governmental authority in
replacement of, in lieu of, or in addition to ad valorem real property taxes, in
whole or in part, including but not limited to a state or local option tax
designed for property tax relief purposes, or a license or franchise fee
measured by rents received from the Improvements, or otherwise measured or based
upon the Developer's or the Port Authority's interest in the Improvements.
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"Redevelopment Parcel" has the meaning set forth in the Development
Agreement.
"Sublease" means the lease entered into or to be entered into by and
between the Commission and the Developer pursuant to which the Commission has
subleased or will sublease the Redevelopment Parcel to the Developer, as the
same has been or may hereafter be amended.
"Taxes" means all Real Estate Taxes, personal property taxes, special
and general assessments, water and sewer service charges, licenses and permit
fees, and other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary, which may be assessed, levied, or
become due and payable or a lien with respect to the Improvements, or any part
thereof.
"Term" means the Initial Period together with all Extension Periods.
"Trust Indenture" means the Trust Indenture among DMS, the Port
Authority and the Trustee, as Trustee, dated as of June 30, 1989, as the same
has been or may hereafter be amended.
"Trustee" has the meaning set forth in the Development Agreement.
"Utility Expenses" means and includes all charges relating to the
providing of water, steam, heat, cooling, gas, electricity, light, sewer,
telephone, television, telecommunications, trash collection and other similar
services furnished to all or any part of the Improvements during the Term.
ARTICLE II
GRANT
SECTION 2.01. Rights Granted. The Port Authority hereby grants to the
Developer and the Developer hereby accepts from the Port Authority the following
rights as a license coupled with an interest, all upon and subject to the terms,
conditions, covenants and provisions hereof: (a) the non-exclusive, but with
priority over other watercraft operating in the Xxxxxxx Xxxxxx, right to
navigate the Boat within those portions of Lake Michigan and the Xxxxxxx Xxxxxx
over which the Port Authority has jurisdiction; (b) the right to construct,
maintain, alter, replace, operate and use the Docking Facilities and other
Improvements within that portion of the Xxxxxxx Xxxxxx over which the Port
Authority has jurisdiction; and (c) the exclusive right to dock and moor the
Boat at the Docking Facilities.
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SECTION 2.02. PARKING. The Port Authority agrees to allow the
Developer exclusive use of all of the area in the Xxxxxxx Xxxxxx parking lot
located to the east of the current entrance drive to the Xxxxxxx Xxxxxx during
the period outside of the local boating season (March 15 to October 31) for the
vehicular parking of the Developer's patrons and employees; provided, that the
Developer shall provide the Port Authority with sufficient space to utilize one
boat launch ramp at all times during such period.
SECTION 2.03. Rights Limited. The rights granted to the Developer
hereunder are subject to the following:
(a) The lien of all Real Estate Taxes, all general and special
assessments and all other governmental dues, charges and impositions not
delinquent, if any;
(b) The lien, terms, conditions and provisions of the Trust
Indenture;
(c) The terms, conditions, and provisions of the Ground Lease;
(d) The terms, conditions and provisions of the Port Authority Lease;
(e) All rights, title and interests of the United States of America,
the State of Indiana and any political subdivision of the State of Indiana,
other than the Port Authority, that has jurisdiction over the use of the Xxxxxxx
Xxxxxx;
(f) All applicable restrictions, rules and regulations promulgated by
the Port Authority with respect to the use of the Xxxxxxx Xxxxxx that are not
inconsistent with the rights granted to the Developer hereunder;
(g) All applicable governmental restrictions, laws, ordinances, rules
and regulations; and
(h) The rights expressly reserved by the Port Authority in this
Agreement.
SECTION 2.04. Nature of Rights Granted to the Developer. The rights
granted to the Developer in Sections 2.01 and 2.02 shall be deemed to be coupled
with an interest and, subject to the provisions of Section 2.03 and Article
XVII, irrevocable during the Term.
SECTION 2.05. "AS IS" Condition. Except as provided in Section 2.06,
the Port Authority grants the rights set forth herein to the Developer and the
Developer accepts such rights "AS IS, WHERE IS" and without warranty of any kind
as to condition, fitness for the Developer's purposes or otherwise.
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Section 2.06. Enjoyment. The Port Authority covenants and agrees
that the Developer, upon observing all covenants and agreements to be kept,
observed or performed by it hereunder, shall at all times during the Term have
the benefit of and ability to exercise the rights granted to the Developer in
Sections 2.01 and 2.02, without hindrance from the Port Authority or anyone
claiming by, through or under the Port Authority, subject to matters which this
Agreement is subject as provided in the foregoing Section 2.03 and to the rights
expressly reserved to the Port Authority in this Agreement. In the event an
adverse claim is made against the rights granted to the Developer hereunder by
someone not claiming by, through or under the Port Authority or included within
the matters to which this Agreement is subject as provided in Section 2.02, the
Port Authority shall not be in default hereunder, if it cooperates with the
Developer in the defense of such adverse claim and takes all reasonable
affirmative action to preserve the Developer's rights hereunder. The Port
Authority represents and warrants to the Developer that, as of the date hereof,
the Port Authority has not received notification from any governmental authority
that the Xxxxxxx Xxxxxx or the operation thereof is in violation of any
Environmental Laws.
ARTICLE III
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PORT AUTHORITY'S RESERVED RIGHTS
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Section 3.01. General. The Port Authority hereby reserves all rights
in and to the Xxxxxxx Xxxxxx not expressly granted to the Developer hereunder,
including, without limitation, the right to grant to any other person or party
the non-exclusive right to operate and store boats and other watercraft in and
around the Xxxxxxx Xxxxxx and adjacent portions of Lake Michigan other than in
those areas in which the Developer has been granted exclusive rights.
ARTICLE IV
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TERM
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Section 4.01. Term. The effective period of this Agreement (the
"Initial Period") shall commence on June 21, 1996 (the "Commencement Date") and
shall end at 11:59 p.m. Hammond time on the fifth (5th) anniversary of the
License Date, and shall be irrevocable during such period, unless sooner
terminated as provided herein.
Section 4.02. Extension Periods. The effective period of this
Agreement shall be automatically extended for periods equal to each renewal
period of the License granted to the Developer by the Gaming Commission (each
such extension period being referred to herein as an "Extension Period");
provided, that the total Term shall not exceed seventy-five (75) years.
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Section 4.03. Holding Over. In the event the Developer shall continue
to exercise the rights granted to it hereunder after the expiration or earlier
termination of the Initial Period or any Extension Period, as applicable, then
such conduct on the part of the Developer shall be deemed an "Event of Default"
under Section 17.01 of this Agreement, and the Port Authority shall have all
rights and remedies set forth in Section 17.03 hereof.
ARTICLE V
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CONSIDERATION
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Section 5.01. Passenger Payment. Commencing with the calendar year or
partial calendar year in which the Boat is placed in operation, and continuing
for each succeeding calendar year or partial calendar year of the Term
thereafter, the Developer shall pay to the Port Authority a passenger payment
("Passenger Payment") in an amount equal to One Dollar ($1.00) multiplied by the
number of passengers that enter and exit the Boat ("Embarking Passengers")
during such calendar year or partial calendar year. For purposes of this
Section 5.01, the number of Embarking Passengers shall be determined in the same
manner that the number of persons is determined for purposes of computing the
admissions tax imposed upon licensed owners pursuant to Chapter 12 of the Act.
Concurrently with each payment of admissions taxes required to be made
to the State pursuant to Chapter 12 of the Act, the Developer shall make a
corresponding deposit in an amount equal to the Passenger Payment for the same
time period covered by the payment of admissions taxes into an account
established by the Developer and invested as directed by the Port Authority from
time to time (the "Holding Account"). On Wednesday of each week, the Developer
shall transfer the entire Holding Account balance, representing all deposits by
the Developer for the immediately preceding week plus interest accrued thereon,
by wire transfer to an account designated by the Port Authority. On the 15th day
of each month during the Term the Developer shall deliver to the Port Authority
a detailed statement setting forth the number of Embarking Passengers on each
day and the calculation of the Passenger Payment for the immediately preceding
month (the "Monthly Statement"). Each Monthly Statement shall be prepared in
accordance with generally accepted accounting principles, consistently applied,
and in accordance with the requirements and definitions contained in this
Agreement, and shall be certified by a principal financial officer of the
Developer to be true, correct and complete and consistent with the pertinent
information submitted to the Gaming Commission on Form RG-1. In addition, at the
time that the Passenger Statement for any calendar year or partial calendar year
is submitted by the Developer to the Port Authority pursuant to Section 5.02
hereof, the Developer shall make a final installment of the Passenger Payment in
an amount equal to the difference between the total Passenger Payment, as
computed and stated in the Passenger Statement, and the
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sum of the installments of the Passenger Payment made by the Developer to the
City for such calendar year or partial calendar year.
The terms and conditions of the Passenger Payment described in this
Section 5.01 shall replace and supersede the per capita embarkation fee set
forth in Section 2.03(b) of the Clipper Lease.
Section 5.02. Accounting for Passenger Payment. The Developer shall
keep and make available to the City and the Port Authority complete and accurate
records of the number of Embarking Passengers for each calendar year and partial
calendar year during the Term (in the form and to the extent required to be
supplied to or reviewed and audited by the Gaming Commission). Commencing in the
calendar year or partial calendar year in which the Boat is placed in operation
and for each calendar year and partial calendar year of the Term thereafter, the
Developer shall submit a statement to the City and the Port Authority on or
before the last day of the following March stating the number of Embarking
Passengers on each day for the immediately preceding calendar year or partial
calendar year and showing the computation of the Passenger Payment for such
immediately preceding calendar year or partial calendar year (the "Passenger
Statement"). In addition, the Developer shall submit to the City and the Port
Authority with the Passenger Statement, any audits or other reports required to
be submitted by the Developer to the Gaming Commission or prepared by or on
behalf of the Gaming Commission and received by the Developer relating to
Embarking Passengers that constitute public records and records of any
correction to the number of Embarking Passengers made by the Developer and
reported to the Gaming Commission. Each Passenger Statement shall be prepared
in accordance with generally accepted accounting principles, consistently
applied, and in accordance with the requirements and definitions contained in
this Agreement and shall be certified by a principal financial officer of the
Developer to be true, correct and complete. The Port Authority may, at any time
on or before the later of thirteen (13) months after the end of a calendar year
or one (1) year after receipt of a Passenger Statement and at the Port
Authority's sole cost and expense, cause a comparison to be made of the
Passenger Statement to the forms, reports and information published or released
by the Gaming Commission, including any corrections thereto, that relate to the
number of Embarking Passenger or the payment of admission taxes. The Developer
shall cooperate with the Port Authority and provide the Port Authority with
copies of all such forms, reports and information that are nonconfidential or
classified as public records. The Port Authority may cause such comparison to be
made by such persons as the Port Authority may determine in its sole discretion.
If such comparison shows that the Passenger Payment shown on the Passenger
Statement is understated, the Developer shall within seven (7) days pay the
amount of such understatement to the Port Authority. If such comparison shows
that the Passenger Payment shown on the Passenger Statement understates the
actual Passenger Payment by more than three percent (3%) of such actual
Passenger Payment, then the fees and expenses for such comparison shall be paid
by the Developer. Otherwise, the fees or expenses for such comparison shall be
paid by the Port Authority.
-10-
If such comparison shows that the Passenger Payment shown on the Passenger
Statement overstates the actual Passenger Payment then such overstated amount
shall be an offset to the Passenger Payment obligations of the Developer set
forth in Section 5.01, and shall be credited against future installments of the
Passenger Payment or in the event there are no future installments of the
Passenger Payment payable by the Developer, such overstated amount shall be
refunded to the Developer within seven (7) days after such comparison is
concluded.
Section 5.03. Marina Payments. The Developer shall pay to the Port
Authority, for deposit with the Trustee, any and all certified shortfalls, if
any, from time to time in the debt service owed and payable for the certificates
of participation issued and outstanding pursuant to the Trust Indenture (the
"Certificates") that become due and payable after the execution of the
Development Agreement by the Developer, the City and the Commission (the
"Shortfall"); provided, that the Developer shall have no obligation to pay (i)
any amounts necessary to cure any other default under the Trust Indenture or
(ii) any shortfall created as a result of any payment of a portion of the
Passenger Payment to the Water Department by the Port Authority. The Developer
shall deliver to the Port Authority, not less than thirty (30) days prior to a
Certificate payment date, that amount certified by the Trustee to represent the
anticipated Shortfall on such Certificate payment date. Any payment made by the
Developer after the date of execution of this Agreement by the Developer and the
Port Authority pursuant to this Section 5.03 shall be credited against the
obligations of the Developer to make the Passenger Payment pursuant to Section
5.01 of this Agreement. In connection with the Development Agreement and this
Section 5.03, the Developer hereby certifies that it has made all payments of
certified shortfalls in the debt service owed and payable for the Certificates,
that became due and payable prior to the execution of the Development Agreement
by the Developer, the City and the Commission, and the Port Authority hereby
certifies that it has received all such payments. The Developer may, at any
time on or before the later of one (1) year after the payment of any Shortfall
and at the Developer's sole cost and expense, cause an examination to be made of
all financial books and records of the Port Authority or books and records of
the Trustee to which the Port Authority has access relating to any such
Shortfall for the calendar year or partial calendar year to which such payment
applies; provided, the Developer shall notify the Port Authority not less than
five (5) days prior to commencing any such examination. The Developer may cause
such examination of all such financial books and records relating to any
Shortfall payment or the computation thereof to be made by such persons as the
Developer may determine in its sole discretion.
Section 5.04. Slip Fees. (a) The Developer shall pay to the Port
Authority an amount equal to the aggregate of the annual rental then being
charged by the Port Authority for each boat slip that is removed or taken out of
operation as a result of, or in connection with, the construction of the Docking
Facilities and/or the operation of the Boat multiplied by the number of each
such type of boat slip that is removed or made
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inoperational; provided, that such annual rental amounts shall be the same as
the annual rental amounts charged to other users of similar boat slips by the
Xxxxxxx Xxxxxx.
(b) The Port Authority shall keep and make available to the Developer
complete and accurate records of (i) the number and type of boat slips removed
or taken out of operation as a result of, or in connection with, the
construction of the Docking Facilities and/or the operation of the Boat, and
(ii) the annual rental amount for each boat slip and the calculation of the
aggregate of the annual rentals to be paid pursuant to Section 5.04(a) for each
calendar year and partial calendar year during the Term. No later than January
1, 1997, Port Authority shall submit a statement to the Developer stating the
number and type of boat slips removed or taken out of operation (the "Removal
Statement"); and at least thirty (30) days prior to the date any slip rental
payment is due, the Port Authority shall submit a statement to the Developer
stating the annual slip rentals and the calculation of the amount due to be paid
to the Port Authority pursuant to Section 5.04(a) (the "Slip Rental Statement").
Each slip rental payment shall be due thirty (30) days after the receipt of the
Slip Rental Statement therefore. The Developer may, at any time on or before one
(1) year after receipt of any Slip Rental Statement and at the Developer's sole
cost and expense, cause an examination to be made of all financial books and
records for the calendar year or partial calendar year to which such Slip Rental
Statement applies; provided, that the Developer shall notify the Port Authority
not less than five (5) days prior to commencing such examination. The Developer
may cause such examination of all such financial books and records relating to
Slip Rental Statements or the computation of the amount to be paid to the
Developer pursuant to Section 5.04(a) to be made by such persons as the
Developer may determine in its sole discretion; provided, that in the event the
Developer takes the position that the actual amount required to be paid to the
Port Authority pursuant to Section 5.04(a) has been overstated in any Slip
Rental Statement, the Port Authority may require that an audit be made by a
nationally-recognized accounting firm selected by the Port Authority and the
results of such audit shall be conclusive. If such audit (or the examination if
an audit is not required by the Port Authority) shows that the actual amount
required to be paid to the Port Authority pursuant to Section 5.04(a) is less
than the amount shown in the Slip Rental Statement and paid by the Developer,
the Port Authority shall within thirty (30) days refund the amount of such
overpayment to the Developer. If such audit (or the examination if an audit is
not required by the Port Authority) shows that the actual amount required to be
paid to the Port Authority pursuant to Section 5.04(a) is less than the amount
shown in the Slip Rental Statement (as determined by such audit or examination,
as the case may be) by more than three percent (3%) of such actual payment
amount, then the fees and expenses for such audit or examination, as the case
may be, shall be paid by the Port Authority. Otherwise, the fees and expenses
for such audit or examination shall be paid by the Developer. If such audit (or
the examination if an audit is not required by the Port Authority) shows that
the actual amount required to be paid to the Port Authority pursuant to Section
5.04(a) is more than the amount shown on the Slip Rental Statement and paid by
the Developer, then the amount of such underpayment shall be paid by the
Developer to the Port Authority within thirty (30) days.
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(c) At such time as the Certificates have been defeased and are no
longer outstanding under the Indenture, the monies held in the custody account
established and held by NBD Bank, N.A., as custodial agent, pursuant to Section
5(d) of the Memorandum of Understanding and Consent dated October 13, 1995, by
and between the Port Authority and DMS, as lessor representative (representing a
deposit of two years of slip rental payments) shall be paid to the Developer
within thirty (30) days unless such deposit is required under the terms of a
refinancing of the Certificates, provided that in such event the deposit shall
be returned to Developer by July 1, 2014, unless sooner applied or returned.
Section 5.05. Compliance With Development Agreement. Port Authority
acknowledges that to the extent the Developer makes payments pursuant to and in
accordance with the provisions of Sections 5.01, 5.03 and 5.04 of this
Agreement, such payments shall constitute compliance with Sections 10.03, 10.04
and 10.05 of the Development Agreement and with any corresponding provisions of
the Clipper Lease and the Clipper Removal Agreement. Further, the Port
Authority agrees not to seek from the Developer and the Developer shall not be
obligated to pay any additional consideration or financial commitments for the
rights granted to the Developer in this Agreement, the Development Agreement,
the Clipper Lease or the Clipper Removal Agreement that are not expressed in
this Agreement, the Development Agreement, the Clipper Lease or the Clipper
Removal Agreement or any other written agreement.
ARTICLE VI
----------
USE
---
Section 6.01. Permitted Uses. The Developer shall use the Xxxxxxx
Xxxxxx and the Improvements for the purposes set forth in Sections 2.01 and
2.02. No other uses of the Xxxxxxx Xxxxxx or the Improvements shall be permitted
without the prior written consent of the Port Authority.
Section 6.02. Compliance With Laws, Insurance Policies. During the
Term, the Developer, at its expense, shall observe and comply with all
Applicable Laws, and with all orders, rules and regulations of the National
Board of Fire Underwriters, the Indiana Board of Fire Underwriters, or any other
body or bodies exercising similar functions, affecting the Xxxxxxx Xxxxxx, or
any part thereof, or the construction of the Improvements or the use or manner
of use of the Xxxxxxx Xxxxxx or the Improvements, and the Developer shall pay
all costs, expenses, liabilities, losses, damages, fines, penalties, claims and
demands that may be-necessary to achieve such compliance or imposed because of
any failure of compliance by the Developer. The Developer, at its expense,
shall have the right to contest by appropriate legal proceedings, the validity
or application of any Applicable Laws or order, rules or regulation, of the
nature referred to in this Section 6.02. If compliance with any such Applicable
Law, order, rule or regulation
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may be delayed pending the prosecution of any such proceeding, the Developer may
delay such compliance until a final determination of such proceeding.
Section 6.03. Negative Covenants. The Developer shall not (a) cause
or permit any nuisance (public or private) to occur or exist in or upon the
Xxxxxxx Xxxxxx, (b) permit the use of the Xxxxxxx Xxxxxx for any lewd or
lascivious purpose, (c) commit any act or take any action that would constitute
a breach of or default under the Clipper Lease, the Clipper Removal Agreement,
the Ground Lease, the Port Authority Lease or the Trust Indenture, or (d) place
any vending machine or similar equipment in or on the Xxxxxxx Xxxxxx.
Section 6.04. Hazardous Substances.
(a) Developer shall not permit any Hazardous Substances to be dumped,
discharged, disposed of or released on, in or about the Xxxxxxx Xxxxxx or Lake
Michigan except to the extent permitted by and in compliance with Applicable
Laws.
(b) The Developer shall not place or install any underground storage
tanks on or in the Xxxxxxx Xxxxxx or Lake Michigan. The Developer shall not
permit any Hazardous Substances to be placed, held, located, disposed of or
released on or in the Xxxxxxx Xxxxxx or the Improvements, other than (i)
Hazardous Substances of a nature and in amounts normally present in or on, or
used in connection with the operation of, the Boat and commercial and retail
facilities of the type similar to the Improvements and (ii) to the extent
permitted by and in compliance with all Applicable Laws. To the extent any
Hazardous Substances permitted to be placed, held, located or disposed of on or
in the Xxxxxxx Xxxxxx or the Improvements are regulated by any Environmental
Laws, the Developer shall place, hold, locate and/or dispose of such Hazardous
Substances in strict compliance with any and all such Environmental Laws.
(c) If the Developer has knowledge of or receives any notice of (i)
the release, spill, discharge or emission of any Hazardous Substance on, in or
about the Xxxxxxx Xxxxxx or the Improvements or otherwise into the environment
(including, without limitation, ambient air, surface water, groundwater or land
(a "Hazardous Discharge")) or (ii) any inquiry, complaint, order, citation or
notice with regard to any Hazardous Discharge (an "Environmental Complaint")
from any person or entity, including, without limitation, the United States
Environmental Protection Agency and the Indiana Department of Environmental
Management or any successor agency, the Developer shall give immediate notice
thereof to the Port Authority disclosing full details of the Hazardous Discharge
or Environmental Complaint, as applicable.
(d) In the event that any Hazardous Substances are leaked, spilled,
disposed of or released on or in the Xxxxxxx Xxxxxx or the Improvements during
the Term as a result of the acts or omissions of the Developer or any employee,
guest, invitee, supplier, vendor, contractor or agent of the Developer, the
Developer shall
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(i) notify the Port Authority, (ii) report, remediate and dispose of such
Hazardous Substances to the extent required by and in compliance with all
Applicable Laws, and (iii) take whatever actions are reasonably necessary to
protect the general public and environment from immediate injury or damage
resulting from such Hazardous Substances. At the conclusion of the remediation
and disposal required under this Section 6.04, the Developer shall cause an
environmental engineer acceptable to the Port Authority to issue a statement to
the Port Authority that all actions required by this Agreement or Applicable
Laws to be taken with respect to such Hazardous Substances have been taken and
completed and, to the knowledge of the environmental engineer after reasonable
investigation and inquiry, there is no violation of Applicable Laws with respect
to such Hazardous Substances.
Section 6.05. Port Authority agrees to perform all obligations of the
Port Authority under the Ground Lease, the Port Authority Lease, the HPA
Footprint Sublease, the HPA Parking Lease and the Trust Indenture except for
those the Developer is expressly required to perform or discharge by the terms
of this Agreement.
ARTICLE VII
-----------
IMPROVEMENTS
------------
Section 7.01. Commencement And Completion Of Construction. The
Developer shall construct the Improvements in accordance with and upon and
subject to all the terms and conditions of the Development Agreement regarding
such construction. Except as expressly set forth in Section 28.01 of this
Agreement, the Developer is prohibited from making or constructing any
improvements, structures or facilities on or in the Xxxxxxx Xxxxxx other than
those set forth In the Development Agreement without the City's and the Port
Authority's prior written consent.
Section 7.02. Governmental Approvals. The Developer shall, at Its
expense, timely procure all approvals, permits or consents from all governmental
authorities having jurisdiction required to be obtained for the operation of the
Boat in Lake Michigan and the Xxxxxxx Xxxxxx and the construction of the
Improvements. The Developer shall have the right to make any necessary
applications for zoning approvals or variances in connection. with the
construction, operation and use of the Improvements and the Port Authority
hereby consents to the filing of such approvals by the Developer.
Section 7.03. Title To Improvements. The Improvements shall be the
property of the Developer during the Term, but shall become the property of the
Port Authority upon the expiration of the Term or earlier termination of this
Agreement.
Section 7.04. Refinancing Of Bonds. The Developer agrees to cooperate
with the Port Authority to refinance the certificates of participation issued
and outstanding
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pursuant to the Trust Indenture in the event the Port Authority determines to
refinance such certificates of participation; provided, that the refinancing
will not create any additional financial burden to the Developer or result in
material cost or expense to the Developer.
ARTICLE VIII
------------
ASSIGNMENT AND ENCUMBRANCES
---------------------------
Section 8.01. Assignments And Subleases. Except as hereafter
expressly provided in this Section 8.01, the Developer shall not assign, sell or
transfer this Agreement or any rights granted to the Developer hereunder or
title to the Improvements or any interest therein or sublease all or any part of
the Improvements (a "Transfer") without the prior written consent of the Gaming
Commission; provided, that in no event shall the Developer assign, sell or
transfer this Agreement or any rights granted to the Developer hereunder or
title to the Improvements or any interest therein or sublease all or any part of
the Improvements to any person or entity that does not hold a License in
accordance with the Act; and provided further, that the Developer shall not
assign, sell or transfer this Agreement or any rights granted to the Developer
hereunder or title to the Improvements or any interest therein or sublease all
or any part of the Improvements to any person or entity that has not executed a
written assignment and assumption agreement whereby the Developer's obligations
under this Agreement, the Development Agreement and the Sublease are assigned
to and assumed by such person or entity upon terms reasonably acceptable to the
Port Authority, the City and the Commission. Any assignment or transfer by
operation of law (voluntary or involuntary), merger, conversion or
reorganization, any assignment or transfer to a receiver or trustee in any
federal or state bankruptcy, insolvency or other proceeding or any change in
control of the Developer or of any entity controlling the Developer shall
constitute a Transfer for purposes of this Agreement. For purposes of this
Section 8.01, "control" means the power to direct the management and policies of
the Developer, directly or indirectly, whether through the ownership or control
of fifty percent (50%) or more of the shares or other equity or beneficial
interest or power to vote the same, or by the partnership or trust agreement or
other instrument or contract or otherwise; and the term "controlling" has the
meaning correlative to the foregoing. The Developer shall provide the Port
Authority with at least one hundred twenty (120) days written notice prior to
making any actual written request to the Gaming Commission to make a Transfer.
Section 8.02. Encumbrances. The Developer shall have no right to
mortgage, pledge, hypothecate or otherwise encumber this Agreement or its rights
or interests under this Agreement or title to or interests in the Improvements
or any part thereof.
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Section 8.03. General. In the event of a permitted Transfer in
accordance with the provisions of this Article VIII and the corresponding
assumption by such transferee of all duties and obligations to be performed or
observed by the Developer hereunder, the Developer shall no longer be
responsible for the future performance or observance of such duties or
obligations.
ARTICLE IX
----------
TAXES AND UTILITY EXPENSES
--------------------------
Section 9.01. Payment Of Taxes And Utility Expenses. The Developer
shall pay and discharge punctually, as and when the same shall become due and
payable (except as otherwise provided in Section 9.02):
(a) all Taxes which are assessed with respect to the Improvements, or
any part thereof, or any appurtenances or equipment thereon owned by or leased
to the Developer for any calendar year (or part thereof) within the Term,
together with all interest and penalties thereon;
(b) all Taxes which are payable on or with respect to the Developers
personal property and the Developer's business or operations; and
(c) all Utility Expenses-commencing with the first day of the Term.
The Developer shall be deemed to have complied with the covenants of
this Section 9.01 if payment of Taxes and Utility Expenses shall have been made
either within any period allowed by applicable law before the same shall become
a lien upon the Improvements; or, if the Tax or Utility Expense constitutes a
lien before it is due and payable, then, before any penalty or interest is
assessed with respect thereto. The Developer shall furnish the Port Authority
with satisfactory evidence of payment of Real Estate Taxes and any other payment
hereunder if requested to do so by the Port Authority in writing.
Section 9.02. Proration Of Real Estate Taxes. Real Estate Taxes
assessed for the calendar years in which the Term commences and ends shall be
paid by the Developer. The Developer shall pay on the date of termination of
this Lease all Real Estate Taxes due and payable during the calendar year in
which the Term ends and its prorata share of all Real Estate Taxes assessed for
the calendar year in which the Term ends based upon the number of days of the
Term in such calendar year. If the amount of such Real Estate Taxes is not then
determined, the most recently available tax rates and assessed valuations shall
be used in determining the amount to be paid under this Section 9.02.
-17-
Section 9.03. Right To Contest. The Developer shall have the right
to contest all Taxes and Utility Expenses referred to in Section 9.01 by
appropriate legal proceedings, or in such other manner as it may deem
appropriate. Such legal proceedings shall include any and all appropriate
appeals or other proceedings and appeals from orders, judgments or decrees so
long as the same are sufficient to prevent a foreclosure sale. The Developer
shall conduct all such proceedings at its expense. The Port Authority shall
execute all documents reasonably required for such proceedings. The Developer
shall reimburse the Port Authority for any costs or expenses incurred by the
Port Authority in connection therewith. Notwithstanding the foregoing, the
Developer shall pay any such Taxes or Utility Expenses prior to the time the
Improvements (or any part thereof) shall become subject to sale upon foreclosure
of the lien therefor.
Section 9.04. Distribution Of Overpayment. If there shall be any
refunds or rebates on account of Taxes or Utility Expenses paid by the Developer
under the provisions of this Lease, such refund or rebate shall belong to the
Developer, whether or not received by the Port Authority during or after the
Term. Any refunds so received by the Port Authority shall be deemed to be
received by the Port Authority in trust for the Developer and shall be paid to
the Developer as its interest appears within ten (10) days of receipt. The Port
Authority will, upon request of the Developer, sign any receipts which may be
necessary to secure the payment of any such refund or rebate.
ARTICLE X
---------
MAINTENANCE, REPAIRS AND ALTERATIONS
------------------------------------
Section 10.01. Maintenance And Repair By The Developer. The
Developer shall at all times during the Term, at its expense, keep and maintain
or cause to be kept and maintained the Improvements in a first-class, clean and
safe condition and repair and in compliance with all Applicable Laws, including,
without limitation, the making of all necessary structural repairs and
replacements. The Port Authority shall not be required to furnish any services
or facilities or to make any improvements, repairs or alterations in or to the
Improvements during the Term.
Section 10.02. Alterations. After initial construction of the
Improvements, the Developer shall not make, construct or install any
alterations, changes, replacements, improvements or additions to all or any
portion of such Improvements that affect the structural integrity or exterior
appearance of such Improvements without the prior written consent of the City
and the Port Authority. Further, the Developer shall not construct any
Improvements other than the Docking Facilities and related Infrastructure
Facilities on or in the Xxxxxxx Xxxxxx without the City's and the Port
Authority's prior written consent.
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ARTICLE XI
----------
MECHANICS' LIENS; INDEMNIFICATION
---------------------------------
Section 11.01. Mechanics' Liens. The Developer shall promptly after
the filing thereof discharge of record, bond over or insure over, at the
Developees expense, any mechanics', materialmen's or other lien, or notice of
intention to file any such lien, filed against the Improvements or any real
estate upon which the Improvements are constructed; provided, that the Developer
shall have the right to contest the validity of any such lien in any manner
permitted by law so long as the Developer (a) shall provide to the Port
Authority title insurance, an indemnity, bond or other assurance or security
reasonably satisfactory to the Port Authority; and (b) shall thereafter
diligently proceed to cause such lien or notice of intention to file a lien to
be removed and discharged. If the Developer shall fail to so discharge, or to
seek to discharge, any such lien or notice of intention to file a lien, then the
Port Authority 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 depositing in court a bond for the amount claimed or in such other manner as
is or may be permitted by law, and the Developer shall reimburse and indemnify
the Port Authority with respect thereto.
Section 11.02. Indemnification By The Developer. The Developer
agrees, at the sole cost and expense of the Developer, to protect, defend,
indemnify and save harmless the Port Authority from and against any and all
liabilities, obligations, claims, damages, penalties, causes of action, and
other costs and expenses (including, without limitation, reasonable attorneys'
fees, reasonable compensation for preparing and attending depositions or serving
as a witness where not named as a defendant, court costs and litigation
expenses), imposed upon or incurred by or asserted against the Port Authority by
reason of, arising out of or pertaining to: (a) the Developer's possession, use
or control of the Xxxxxxx Xxxxxx or the Improvements or any part thereof during
the Term, (b) any condition of the Improvements or any part thereof during the
Term, (c) the occurrence of any Event of Default, or (d) any willful or
negligent act or omission of the Developer, or any of its agents, contractors,
licensees, subtenants or its or their employees, customers or invitees. In any
circumstance where the Developer is obligated under this Agreement to indemnify
the Port Authority, the Developer shall have the right to undertake, conduct,
and control, through counsel of its choosing, reasonably acceptable to the Port
Authority, and at the sole expense of the Developer, the conduct and settlement
of such matter, and the Port Authority shall cooperate therewith; provided,
however, that (w) the Developer shall not thereby permit to exist any lien,
encumbrance, or other adverse change upon the assets of the Port Authority, (x)
the Developer shall not thereby consent to the imposition of any injunction
against the Port Authority without the consent of the Port Authority, (y) the
Developer shall permit the Port Authority to participate in such dispute or the
settlement thereof through counsel chosen by the Port Authority, but the fees
and expenses of such counsel shall be borne solely by the Port Authority, and
(z) the Developer shall agree promptly to reimburse the Port Authority for
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the full amount of the obligations due hereunder. If the Port Authority
reasonably believes that counsel selected by the Developer has a conflict of
interest by reason of asserting or threatening to assert a limitation on or
defense to the indemnification obligation of the Developer or otherwise or a
conflict of interest arises between the Developer and the Port Authority, then
the Port Authority may select new, independent counsel, reasonably acceptable to
the Developer, who shall represent the Port Authority at the sole cost and
expense of the Developer. The Developer shall specify any claimed limitations
on or defenses to its indemnification obligation upon the Port Authority's
request therefor. So long as the Developer is contesting any such matter in
good faith and the operations or assets of the Port Authority are not in any way
impaired, the Port Authority may not pay or settle any such action or suit
without the consent of the Developer unless it chooses to waive its rights to
reimbursement and indemnification hereunder. Notwithstanding the foregoing, the
Port Authority shall have the right to pay or settle any such action or suit,
provided that in such event the Port Authority shall waive any right to
indemnity therefore. However, if the Developer is obligated, but ceases to
contest such matter in good faith, then the Port Authority may pay or settle
such action or suit and obtain reimbursement from the Developer.
Developer's indemnification obligations hereunder shall be in addition
to any and all other obligations the Developer may have to the Port Authority
under any other agreement, at law or in equity, and shall survive the expiration
of the Term or earlier termination of this Agreement and any transfer by the
Port Authority of its interests in the Xxxxxxx Xxxxxx and/or Improvements.
ARTICLE XII
-----------
INSURANCE
---------
Section 12.01. Liability Insurance. The Developer shall maintain and
keep in force at all times during the Term, at its sole cost and expense, the
insurance required to be maintained by the Developer pursuant to the Development
Agreement.
Section 12.02. Proof Of Insurance. The Developer shall deliver copies
of the insurance policies showing the insurance required by this Article XII to
the Port Authority on or before the date of execution of this Lease, and
thereafter a copy of each replacement policy shall be provided not less than
sixty (60) days prior to the expiration of the policy being replaced. Each such
policy referred to in this Article XII shall contain a provision providing that
the policy shall not be canceled, not renewed or materially amended without
sixty (60) days prior written notice to the Port Authority.
Section 12.03. Adjustment in Insurance. If, after the Initial Term,
and no more frequently than every five years thereafter, by reason of changed
conditions or by reason of experience the Port Authority reasonably determines
that the insurance
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amounts referred to in the foregoing Section 12.01 are inadequate, the Developer
shall, at the request of the Port Authority, increase the amounts of such
insurance carried to the extent appropriate for a like facilities under like
circumstances. In the event that it shall become customary for operators of
similar facilities to maintain types or coverages of insurance other than those
required to be maintained by the Developer under this Article XII, the Developer
shall maintain such other types of coverages of insurance upon the written
request of the Port Authority so long as such types or coverages of insurance
can be obtained by the Developer at reasonable cost.
Section 12.04. Waiver Of Subrogation. The Developer and the Port
Authority waive all rights against each other and against those for whom the
other is legally liable for all losses covered by insurance provided under this
Article XII to the extent the limits of such insurance are adequate to cover
such losses, it being the intent of this provision to allocate all risk of such
loss to such insurance; provided, however, that this waiver shall not be
effective if it would preclude or prejudice the right of the Port Authority or
the Developer to recover under such insurance policy. If the policies of
insurance provided for under this Article XII require an endorsement to provide
for continued coverage where there is a waiver of subrogation, the Developer
shall cause such policies to be so endorsed.
Section 12.05. Insurance Proceeds. The proceeds of all policies of
insurance on the Improvements maintained pursuant to Section 12.02 shall be used
as a trust fund toward the repair, replacement or rebuilding of the
Improvements. Accordingly, all insurance proceeds for damage to the Improvements
paid to the Developer and/or the Port Authority under such policies shall be
held by or delivered to the Developer in trust for the payment of the costs of
repairing, replacing and rebuilding the Improvements. If such insurance proceeds
shall exceed the cost of repairing, replacing or rebuilding the Improvements,
the balance remaining after payment of such costs shall be the property of and
shall be paid to the Developer. The Port Authority shall cooperate fully with
the Developer in collecting such insurance proceeds and shall execute and
deliver, as requested by the Developer, any and all proofs, receipts, releases
and other instruments as may be appropriate for such purpose.
Section 12.06. General Provisions. In the event the Developer shall
fail or refuse to obtain any insurance required by this Article XII, the Port
Authority, in addition to any other rights the Port Authority may have under
this Lease or at law or in equity, shall have the option to obtain such
insurance. The cost of such insurance shall constitute an additional charge
payable by the Developer to the Port Authority immediately upon demand.
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ARTICLE XIII
------------
DESTRUCTION
-----------
Section 13.01. The Developer's Obligation to Repair. If at any time
during the Term the Improvements shall be destroyed or damaged by fire or other
cause, the Developer shall cause the same to be repaired, replaced or rebuilt
within a period of time which, under all prevailing circumstances, shall be
reasonable. In the repair, replacement or rebuilding of all or any portion of
the Improvements hereunder, the Developer shall repair, replace or rebuild the
Improvements so damaged or destroyed to the condition in which they existed
immediately before such damage or destruction, subject to all then Applicable
Laws affecting the same. If the net insurance proceeds payable in respect of
any such damage or destruction shall be insufficient to pay the entire cost of
such repair, replacement or rebuilding, the Developer shall provide for the
deficiency. In such event, the time within which the Developer shall be
required to commence and complete its obligations hereunder shall include a
reasonable time to obtain and close the necessary commitments for equity
financing to cover the deficiency.
Section 13.02. No Abatement. In no event shall any charges due from
the Developer to the Port Authority hereunder xxxxx in the event of such damage
or destruction.
ARTICLE XIV
-----------
CONDEMNATION
------------
Section 14.01. Total Condemnation. If at any time during the Term
there shall be a total taking or a Constructive Total Taking of the Improvements
in condemnation proceedings or by any right of eminent domain or by a conveyance
in lieu thereof, this Agreement shall terminate on the date of such taking.
Section 14.02. Proceeds Of Total Condemnation. In the event of any
such total taking or Constructive Total Taking and the termination of this
Agreement, the Condemnation Proceeds shall be apportioned and paid, to the
extent available, in the following order of priority:
(a) First, to the payment of costs and expenses, including (without
limitation) court costs and reasonable attorneys' fees, incurred by the Port
Authority and the Developer in connection with such taking;
(b) Second, to the Developer an amount equal to the fair market value
of the Improvements multiplied by a percentage, the numerator of which is a
number determined by subtracting the number of full or partial calendar years
that have passed
-22-
between the Commencement Date and the date that possession of the Improvements
are delivered to the condemning authority from twenty-five (25) and the
denominator of which is twenty-five (25); and
(c) Any remaining balance shall be paid to the Port Authority.
Nothing herein contained shall impair the right of the Developer to the full
award, compensation or damages payable as an award for loss of business or for
moving expenses, as long as such award shall not reduce the amount of the award
otherwise recoverable by the Port Authority from the condemning authority.
Section 14.03. Partial Condemnation. In the event of a taking that is
less than a Constructive Total Taking, this Agreement shall not terminate. The
Condemnation Proceeds in such event shall be apportioned and paid, to the extent
available, in the following order of priority:
(a) First, to the payment of costs and expenses, including (without
limitation) reasonable attorneys' fees, incurred by the Port Authority and the
Developer in connection with such taking;
(b) The balance of the Condemnation Proceeds shall be paid in trust
to the Developer to be disbursed and used for payment of the costs of repairing,
replacing and rebuilding the Improvements in the manner then reasonably feasible
as required by Section 14.04; and
(c) The Condemnation Proceeds, if any, remaining after repair,
replacement and rebuilding of the Improvements shall be paid to the Port
Authority.
Section 14.04. Restoration. In the event of a taking that is less
than a Constructive Total Taking, the Developer shall proceed with due diligence
to repair, replace and rebuild the remaining Improvements to their former
condition as nearly as may be reasonably possible and in compliance with the
requirements of the Development Agreement for the performance of the Work (as
such term is defined in the Development Agreement). If the Condemnation
Proceeds are insufficient to pay the entire cost of such repair, replacement and
rebuilding, the Developer shall pay any such deficiency.
Section 14.05. Temporary Condemnation. If, at any time during the
Term, the whole or any part of the Improvements or the Developer's interest
therein under this Agreement shall be taken in condemnation proceedings or by
any right of eminent domain for temporary use or occupancy, the foregoing
provisions of this Article shall not apply, and, except to the extent that the
Developer may be prevented from so doing pursuant to the terms of the order of
the condemning authority, the Developer shall perform and observe all of the
other terms, covenants, conditions and obligations hereof to be performed and
observed by it, as though such taking had not occurred. In the
-23-
event of any such taking of the character referred to in this Section 14.05, the
Developer shall be entitled to receive the entire amount of the Condemnation
Proceeds paid for such taking, whether paid by way of damages, rent, costs of
moving or restoration or otherwise, unless such period of temporary use or
occupancy shall extend beyond the Term, in which case the Condemnation Proceeds
shall be apportioned between the Port Authority and the Developer as of the date
of termination of this Agreement. Upon the expiration of any such period of
temporary use or occupancy during the Term, the Developer shall, at its expense,
restore the Improvements as nearly as may be reasonably possible to the
condition in which the same were immediately prior to such taking. If such
period of temporary use or occupancy shall extend beyond the expiration of the
Term, any portion of the Condemnation Proceeds received by the Developer as
compensation for the cost of restoration of the Improvements shall be paid by
the Developer to the Port Authority on the date of termination of this
Agreement, and the Developer shall be thereby relieved of the obligation to
perform such restoration.
Section 14.06. Rights to Appear. The Port Authority and the
Developer shall have the right to participate in any condemnation proceeding for
the purpose of protecting their rights hereunder, and in this connection,
specifically and without limitation, to introduce evidence to establish the
value of or damage to the Improvements or any part thereof.
Section 14.07. Limitation on Eminent Domain Powers. To the extent
permitted by law, during the Term, the Port Authority shall not utilize any
power of eminent domain or of the sovereign to take from the Developer any of
its title to or rights in the Improvements.
ARTICLE XV
----------
MORTGAGES
---------
Nothing herein shall be deemed to constitute a subordination to any
mortgage of any rights that the Port Authority may have in and to the Xxxxxxx
Xxxxxx or the Improvements or to require the Port Authority to execute any
mortgage or agreement or instrument or take any action to effect any such
subordination.
ARTICLE XVI
-----------
DEVELOPER'S RIGHT TO CURE THE
-----------------------------
PORT AUTHORITY'S DEFAULTS
-------------------------
Section 16.01. Notices. The Port Authority shall give the Developer
prompt written notice of (a) each notice of default given to the Port Authority
by DMS
-24-
under the Ground Lease or the Port Authority Lease, by the Trustee under the
Trust Indenture or by the Commission under the HPA Footprint Sublease or the HPA
Parking Lease, and (b) each notice of default given by the Port Authority to DMS
under the Ground Lease or the Port Authority Lease or to the Commission under
the HPA Footprint Sublease or the HPA Parking Lease. The Port Authority shall
use its best efforts to require DMS, the Trustee and the Commission to provide
direct notices of the Port Authority's defaults to the Developer. The Port
Authority hereby represents that there are no uncured defaults or matters which,
with the passage of time or the giving of notice, would ripen into defaults with
respect to the HPA Footprint Sublease or the HPA Parking Lease, and that it has
not received written notice of any default with respect to the Ground Lease, the
Port Authority Lease, the Trust Indenture or any other agreements that would
impact the ability of the Port Authority to perform its obligations hereunder.
Section 16.02. Right to Cure. The Developer shall have the right to
timely remedy or cause to be remedied the default which is the basis of any
notice to the Port Authority that is received by the Developer pursuant to
Section 16.01; and the Port Authority shall advise DMS, the Trustee and the
Commission that they should accept performance by the Developer as performance
by the Port Authority. To the extent that Developer incurs reasonable costs in
remedying or causing to be remedied any default by the Port Authority under the
Trust Indenture, the Ground Lease, the Port Authority Lease or the HPA Sublease,
such reasonable costs shall be credited against the obligations of the Developer
to make the Passenger Payment pursuant to Section 5.01 of this Agreement.
Nothing herein contained shall require the Developer to cure or undertake to
cure any default of the Port Authority under the Trust Indenture, the Ground
Lease, the Port Authority, the Port Authority Lease or the HPA Sublease.
Section 16.03. No Termination of HPA Footprint Sublease. If for any
reason the HPA Footprint Sublease is terminated by the Port Authority by legal
proceedings or otherwise in accordance with the terms of the HPA Footprint
Sublease, the Port Authority covenants and agrees that such termination of the
HPA Footprint Sublease shall not result in a termination of the Sublease as it
pertains to the real estate and interests in real estate subject to the HPA
Footprint Sublease, and that such Sublease shall continue in full force and
effect as a direct Sublease between the Port Authority and the Developer as it
pertains to the real estate and interests in real estate subject to the HPA
Footprint Sublease so long as the Developer is not in default thereunder for the
duration of the term of the Sublease and any extensions thereof. The Port
Authority shall, upon request, execute, acknowledge, and deliver such additional
agreements evidencing and agreeing to the foregoing as the Developer may
reasonably require.
Section 16.04. No Termination of the HPA Parking Lease. If for any
reason the HPA Parking Lease is terminated by the Port Authority by legal
proceedings or otherwise in accordance with the terms of the HPA Parking Lease,
the Port Authority covenants and agrees that such termination of the HPA Parking
Lease shall not result in
-25-
a termination of the Sublease as it pertains to the real estate and interests in
real estate subject to the HPA Parking Lease, and that such Sublease shall
continue in full force and effect as a direct Sublease between the Port
Authority and the Developer as it pertains to the real estate and interests in
real estate subject to the HPA Parking Lease so long as the Developer is not in
default thereunder for the duration of the term of the Sublease and any
extensions thereof. The Port Authority shall, upon request, execute,
acknowledge, and deliver such additional agreements evidencing and agreeing to
the foregoing as the Developer may reasonably require.
ARTICLE XVII
------------
DEFAULTS
--------
Section 17.01. Events of Default. Each of the following events, if
not remedied as hereinafter provided, shall be deemed an "Event of Default":
(a) The occurrence of any event set forth in Article XVIII, as
therein provided; or
(b) The Developer's failure to pay any payment required hereunder when
the same becomes due, and such failure continues for thirty (30) days after
receipt of written notice thereof from the Port Authority; or
(c) Developer's failure to perform any other covenant or agreement
herein on the Developer's part to be kept or performed which is not an Event of
Default under paragraphs (a), (b), (d), (e), (f), (g), (h) or (i) of this
Section 17.01 and the continuance of such failure for a period of thirty (30)
days after written notice to the Developer from the Port Authority specifying
the nature of such failure; or
(d) An Event of Default by the Developer occurs under the Development
Agreement; or
(e) An Event of Default by the Developer occurs under the Sublease;
or
(f) The Developer fails to comply with its duties and obligations
under the Clipper Removal Agreement and the expiration of any applicable grace
or cure period set forth in the Clipper Removal Agreement; or
(g) A breach or default by the Developer under the Clipper Lease and
the expiration of any applicable cure or grace period set forth in the Clipper
Lease; or
(h) The Developer does not receive a License on or before December
31, 1996; or
-26-
(i) The occurrence of an Event of Default pursuant to subparagraph
(f) of Section 16.01 of the Development Agreement.
Section 17.02. Extensions. If the Port Authority gives notice at any
time of a default under Section 17.01 (b) of a nature that cannot be cured
within the thirty (30) day period therein provided, then such default shall not
be deemed an Event of Default so long as the Developer, following notice from
the Port Authority, proceeds to cure the default as soon as reasonably possible
and continues to take all reasonable steps necessary to complete the same within
a period of time which, under all prevailing circumstances, shall be reasonable.
In addition, no Event of Default shall be deemed to have occurred if and so long
as the Developer shall be delayed in or prevented from curing the same within
the applicable cure period by Unavoidable Delay.
Section 17.03. Remedies. Upon the occurrence of any Event of Default
under subparagraphs (a), (b), (c), (d), (e), (f) or (g) of Section 17.01, or at
any time thereafter so long as the same is not cured, the Port Authority may (a)
cure any such Event of Default and collect the cost thereof from the Developer
upon demand, (b) seek, obtain and enforce a judgment for specific performance or
other declaratory relief against the Developer for the performance of any
agreement or covenant contained in this Agreement on the Developer's part to be
kept or performed, and/or (c) seek, obtain and enforce a judgment for monetary
damages resulting from any such Event of Default.
Upon the occurrence of any Event of Default under subparagraphs (h) or
(i) of Section 17.01, or at any time thereafter, the Port Authority may, at its
option and in addition to and without prejudice to any other rights and remedies
the Port Authority may have under this Agreement or at law or in equity, give to
the Developer a written notice of its election to terminate this Agreement upon
a date specified in such notice, which date shall be not less than forty-five
(45) days after the date of delivery to the Developer of such notice by the Port
Authority.
Section 17.04. Default By Port Authority. Port Authority's failure or
refusal to perform any provision of this Agreement which it is obligated to
perform or the breach of any covenant herein shall be a default by Port
Authority. In the event of a default by Port Authority, the Developer may:
(a) Emergency Situation. In an Emergency Situation, as hereinafter
defined, if the default is not cured after reasonable notice to (or attempts to
notify) the Port Authority, the Developer may cure the default, provided that
such cure is not more extensive than is reasonably necessary under the
circumstances; and
(b) Non-emergency Situation. In a non-Emergency Situation, if the
default is not cured within thirty (30) days of written notice from the
Developer to the Port Authority (or if such default is of such a nature as to
not be extended so long as the Port
-27-
Authority commences its efforts to cure within said thirty (30) day period and
thereafter diligently pursues the same to completion), the Developer may cure
the default;
If the Developer incurs any sum because of the Port Authority's
default, the reasonable sums paid by Developer shall be due from the Port
Authority upon demand and such sums shall be an offset to the Passenger Payment
obligations of the Developer set forth in Section 5.01, and shall
be credited against future installments of the Passenger Payment. "Emergency
Situation" as used in this Section means a situation which threatens the
physical well-being of persons, or which threatens immediate and material damage
to the Developer's property.
ARTICLE XVIII
-------------
BANKRUPTCY AND INSOLVENCY
-------------------------
Section 18.01. Certain Events Of Default Specified. If during the
Term:
(a) The Developer shall be adjudicated a bankrupt or adjudged to be
insolvent;
(b) A receiver or trustee shall be appointed for the Developer's
property and affairs, unless such appointment shall be vacated within ninety
(90) days of its entry;
(c) The Developer shall make an assignment for the benefit of
creditors;
(d) A petition shall be filed proposing the adjudication of the
Developer as a bankrupt or insolvent or the reorganization of the Developer or
an arrangement by the Developer with its creditors whether pursuant to the
United States Bankruptcy Code or any similar federal or state proceedings,
unless such petition is filed by a party other than the Developer and is
withdrawn or is dismissed within ninety (90) days after the date of filing; or
(e) Any execution or attachment shall be issued against the Developer
or any of the Developer's property, whereby the Improvements shall be taken or
occupied or attempted to be taken or occupied by someone other than the
Developer, unless such attachment is a prejudgment attachment that is set aside
within ninety (90) days after the issuance of the same;
then, subject to Section 18.02, an Event of Default hereunder shall be deemed to
have occurred so that the provisions of Article XVII hereof shall become
effective; and the Port Authority shall have the rights and remedies provided
for therein in addition to all other legal remedies available to the Port
Authority.
-28-
Section 18.02 Preservation Of Agreement. Notwithstanding anything to
the contrary contained in Article XVII, upon the occurrence of an Event of
Default pursuant to this Article XVIII, then if all of the covenants and
agreements of this Agreement on the Developer's part to be kept and performed
shall continue to be kept and performed, no Event of Default shall be deemed to
have occurred and the provisions of Article XVII shall not become effective.
ARTICLE XIX
-----------
SPECIFIC PERFORMANCE
--------------------
In addition to any other rights that the Developer or the Port
Authority may have under this Agreement, if the other fails or refuses to
execute, acknowledge and deliver any instrument or instruments or to take any
other action (other than an action solely involving the payment of any sum of
money) required to effectuate the provisions of this Agreement within the time
period required by this Agreement or, if no time period therefor is specified in
this Agreement, within any reasonable time period specified in any request from
the other party, then from and after the date fifteen (15) days after the date
of delivery of a written demand to the other party requesting such execution,
acknowledgment and delivery or other action, the requesting party shall be
entitled to specific performance, declaratory relief, or such other remedies at
law or equity which may be appropriate to effectuate the provisions of this
Agreement; provided, that the Port Authority shall not be entitled to terminate
this Agreement except in accordance with the terms and provisions of Article
XVII.
ARTICLE XX
----------
SURRENDER
---------
Section 20.01. Surrender of Improvements. The Developer shall
surrender the Improvements to the Port Authority at the expiration of the Term
or earlier termination of this Agreement and the Developer's rights hereunder,
without delay, in good order, condition and repair except for reasonable wear
and tear after the last necessary repair, replacement, or rebuilding made by the
Developer, for the purposes for which such Improvements were designed, free and
clear of all liens and encumbrances except the liens for taxes and assessments
not then due and payable, and without any payment or allowance whatever by the
Port Authority for the Improvements made by the Developer.
Section 20.02. Removal of Certain Property. All furniture, trade
fixtures, and other personal property may be removed by or on behalf of the
Developer at or prior to the expiration of the Term or other termination of this
Agreement or of the Developer's
-29-
rights hereunder, but only if, and to the extent, that the removal thereof will
not cause physical injury or damage to the Improvements or necessitate changes
or repairs to the same. The Developer shall pay or cause to be paid to the Port
Authority the cost of repairing or restoring any injury or damage to the
Improvements arising from such removal so as to return the Improvements to its
condition immediately prior to such removal.
Section 20.03. Survival Of Terms. The terms of this Article XX shall
survive any termination of this Lease.
ARTICLE XXI
-----------
NO WAIVER
---------
Failure of the Port Authority or the Developer to object to any act or
omission on the part of the other party, however long the same may continue,
shall not be deemed to be a waiver by said party of any of its rights hereunder.
No waiver by the Port Authority or the Developer at any time, express or
implied, of any breach of any provision of this Agreement shall be deemed a
waiver of a breach of any other provision of this Agreement or a consent to any
subsequent breach of the same or any other provision. No acceptance by the Port
Authority of any partial payment shall constitute an accord or satisfaction, and
such partial payment shall only be deemed a part payment on account.
ARTICLE XXII
------------
PORT AUTHORITY'S ASSIGNMENT
---------------------------
AND THE PARTIES' LIABILITY LIMITATION
-------------------------------------
Section 22.01. Assignment By The Port Authority. The Port Authority
may transfer or assign its interests in the Xxxxxxx Xxxxxx or the Improvements
or under this Agreement to any other governmental entity with the power to
perform the duties and obligations and the authority to grant such rights set
forth in this Agreement, without the requirement of any consent by the
Developer, but may make no other transfers or assignments without the prior
written consent of the Developer. In the event of the transfer or assignment of
the Port Authority's interests as permitted hereunder and the assumption by such
transferee or assignee of all duties and obligations to be performed or observed
by the Port Authority with respect to such interests hereunder, only the
transferee or assignee shall be responsible for the performance or observance of
such covenants or agreements. However, the Port Authority may, without the
consent of Developer, collaterally assign its rights in this Agreement in
connection with a financing provided such assignment does not impair the rights
of the Developer hereunder.
-30-
Section 22.02. Limitations on Rights of Recovery. Notwithstanding
anything to the contrary contained in this Agreement, there shall be absolutely
no personal liability attributed to any member, director, officer, employee,
agent or attorney of the Port Authority with respect to the terms, covenants and
provisions of this Agreement, such exculpation of personal liability being
absolute and without any exception whatsoever. Notwithstanding anything to the
contrary contained in this Agreement, there shall be absolutely no personal
liability attributed to any member, shareholder, director, officer, employee,
agent, or attorney of the Developer with respect to the terms, covenants, and
provisions of this Agreement, such exculpation of personal liability being
absolute and without any exception whatsoever.
ARTICLE XXIII
-------------
FORCE MAJEURE
-------------
Notwithstanding anything contained in this Agreement to the contrary,
if the Developer or the Port Authority is delayed, hindered, or prevented in the
performance of any act or the achievement of any deadline required under this
Agreement (other than the payment of money) by reason of fire, casualty,
strikes, lockout, labor troubles, inability to procure materials or supplies,
failure of power, Gaming Commission or other governmental authority, weather,
riots, insurrection, war, or other reasons of like nature, or failure of timely
performance by or acts of the other party ("Force Majeure Events"), and such
delays, hindrances, or prevention of performance are not within the reasonable
control of the party obligated to perform, the party affected by such delay
shall promptly give notice thereof to the other parties and thereupon
performance of such act shall be excused for the period of delay and/or such
deadline extended for a period equal to the period of delay. Such excusal
and/or extension of time shall be, however, predicated upon the party subject to
the Force Majeure Event (i) notifying the other party in writing of the delay
and reasons causing the delay within thirty (30) days upon learning of the same;
and (ii) taking all reasonable steps to avoid the delay and all reasonable steps
to remove and address the condition(s) causing the delay.
ARTICLE XXIV
------------
NOTICES
-------
No notice, approval, consent or other communication authorized or
required by this Agreement shall be effective unless the same shall be in
writing. Any such communication shall be deemed given when either (a) hand
delivered, with signed receipt obtained therefor, (b) sent postage prepaid by
United States registered or certified mail, return receipt requested, directed
or addressed in each case to the other party at its address set forth below, or
such other address as either party may designate by notice
-31-
given from time to time in accordance with this Article XXIII, or (c) sent by
nationally recognized overnight courier service with all charges prepaid or
billed to sender, directed or addressed in each case to the other party at its
address set forth below, or such other address as either party may designate by
notice given from time to time in accordance with this Article XXIII.
The addresses and telefax numbers for notices are:
To the Port Authority: Xxxxxxx Port Authority
______ Empress Drive
Hammond, Indiana 463____
Attention: Director
With copies to: Mayor Xxxxx X. Xxxxxxx, Xx.
City of Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X. Xxxxx, Esq.
Xxxxxxx Xxxxx & Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Xxxxx X. Xxxxxxx, Esq.
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
To the Developer Empress Casino Hammond Corporation
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Manager
With copies to: Empress Casino Joliet Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
-32-
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Bayt
All such communications shall be deemed received one day after the
date sent via any of the enumerated means, except for those sent by personal
delivery, which notices shall be deemed received only when actually received by
the other party.
ARTICLE XXV
CERTIFICATES
Either party shall, without charge, at any time and from time to time
hereafter, within thirty (30) days after written request of the other, certify
by written instrument duly executed and acknowledged to any person, firm or
corporation specified in such request:
(a) As to whether this Agreement has been supplemented or amended,
and if so, the substance and manner of such supplement or amendment;
(b) As to whether this Agreement has been assigned, transferred or
sublet, and if so, the substance and manner of such assignment, transfer or
sublet;
(c) As to the validity and force and effect of this Agreement, in
accordance with its tenor as then constituted;
(d) As to the existence of any default hereunder on the part of the
other party to this Agreement;
(e) As to the existence of any offsets, counterclaims or defenses
thereto on the part of such other party;
(f) As to the commencement and expiration dates of the Term; and
(g) As to any other matters as may reasonably be so requested.
Any certificate referred to in this Article XXIV may be relied upon by
the party requesting it and any other person, firm or corporation to whom the
same may be exhibited or delivered, and the contents of such certificate shall
be binding on the party executing same.
-33-
Exhibit A (page 1 of 3)
[INSERT ART]
EXTENSION OF TEMPORARY LICENSE AGREEMENT
----------------------------------------
The Hammond Port Authority (Licensor), and Hammond Bridge and Road Works,
L.L.C. (License) entered Temporary License Agreements in December, 1995, copies
of which are attached hereto and made a part hereof. So that construction may
continue without interruption, the parties find it to their mutual benefit to
extend said Temporary License Agreements in all of their terms and conditions
except termination date, through and including April 16, 1996.
IN WITNESS WHEREOF, licensor has duly executed this instrument this 11th
day of March, 1996.
HAMMOND PORT AUTHORITY
By: /s/ Xxxxxxxxxx X. Xxxxx
-------------------------
Printed: Xxxxxxxxxx X. Xxxxx
--------------------
Title: Chairman
-----------------------
ATTEST:
/s/ Xxxxxx X. Xxxxx
---------------------------
XXXXXX XXXXX, Secretary
STATE OF INDIANA )
) SS:
COUNTY OF LAKE )
Before me, the undersigned, a Notary Public, in and for said County and
State this 11th day of March, 1996, personally appeared Xxxxxxxxxx Xxxxx,
Chairman and Xxxxxx Xxxxx, Secretary respectively, acting for and on behalf of
the Hammond Port Authority, who acknowledged the execution of the foregoing
instrument as their voluntary act for the uses and purposes set forth therein.
Witness my hand and notarial seal this 11th day of March, 1996.
Notary Public
/s/ X.X. Xxxxx
----------------------
X.X. Xxxxx
I am a resident of Lake
County, Indiana.
My commission expires:
12-17-98
----------------------
TEMPORARY LICENSE AGREEMENT
12/05/95
The Hammond Port Authority ("LICENSOR"), for good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
and to the extent of its present or hereafter acquired right, title and
interest, if any, in and to that portion of the real estate described on Exhibit
"A" attached hereto and incorporated herein by this reference that is generally
depicted on Exhibit "B" attached hereto and incorporated herein by this
reference (the "LICENSE AREA"), does hereby GRANT to Hammond Bridge and Road
Works, L.L.C. ("LICENSEE") a temporary license (the "LICENSE") in, under, over
and through the LICENSE AREA for (a) the installation and construction of an
elevated roadway and related equipment and improvements (including, without
limitation, footings, retaining walls, decks, columns, pads, beams, supports,
ramps, embankments, utilities and drainage systems) and the relocation and
installation of rail lines and related equipment and improvements (said roadway,
rail lines and related equipment and improvements are collectively referred to
as the "FACILITIES"), and (b) drainage, entry upon, passage over, deposit of
excavated earth, and storage of material and equipment as may be necessary or
useful for the initial installation, construction and relocation of the
FACILITIES.
In consideration of the grant of the foregoing license, LICENSEE does
hereby covenant and agree as follows:
(a) LICENSEE shall protect, defend, indemnify and save harmless the
LICENSOR and each agency, commission, department, officer and
representative of LICENSOR from and against all liabilities,
obligations, claims, damages, penalties, causes of action and other
costs and expenses (including, without limitation, attorneys fees,
court costs and litigation expenses), imposed upon or incurred by or
asserted against LICENSOR or any agency, commission, department,
officer or representative of LICENSOR as a result of or in connection
with (i) the entry by LICENSEE or anyone claiming by or through
LICENSEE on all or any portion of the LICENSE AREA, (ii) the
installation, construction or relocation of the FACILITIES, or (iii)
the failure of LICENSEE to perform its obligations under this
Temporary License Agreement. LICENSEE'S obligations under this
subparagraph (a) shall survive the
A parcel of land lying in the West one half of Section 6, Township 37 North,
Range 9 West of the Second Principal Meridian, Lake County, Indiana, described
as commencing at the intersection of the West line of Section 6 and the
Northerly line of the Baltimore and Ohio Railroad right-of-way; thence North 00
degrees 00 minutes 00 seconds East along the West section line 154.93 feet;
thence South 40 degrees 12 minutes 11 seconds East 61.97 feet to a cross in the
concrete walk marking the point of beginning; then continuing South 40 degrees
12 minutes 00 seconds East 90.97 feet to an iron rod; thence on a curve to the
left 230.01 feet said curve having a radius of 2,814.93 feet, a central angle of
4 degrees 40 minutes 54 seconds and a chord that bears South 42 degrees 32
minutes 27 seconds East 229.94 feet to a point; thence North 36 degrees 10
minutes 42 seconds East 385.02 feet along the lakeside face of the sheet piling
to a point on the present shoreline of Lake Michigan thence Northwesterly along
the present shoreline of Lake Michigan, 494 feet, plus or minus, to the Easterly
right-of-way line of Calumet Avenue; thence South 00 degrees 00 minutes 00
seconds West along said right-of-way line 281.19 feet to the point of beginning.
PARCEL 3:
A strip of land lying in the West one half of Section 6, Township 37 North,
Range 9 West of the Second Principal Meridian, Lake County, Indiana, described
as commencing at the intersection of the West section line and the Northerly
line of the Baltimore and Ohio Railroad right of way; thence North 0 degrees 00
minutes 00 seconds East along the West section line 92.96 feet to an iron pipe
marking the point of beginning, said point being on a line 40 feet from the
Northerly right of way line of the Elgin Joliet and Eastern Railroad; thence
North 0 degrees 00 minutes 00 seconds East along the West section line 61.97
feet to an iron rod; thence South 40 degrees 12 minutes 00 seconds East along
the Northerly right of way line of the Elgin Joliet and Eastern Railroad 152.94
feet to an iron rod; thence along said right of way line 663.25 feet on a curve
to the left said curve having a radius of 2,815.93 feet and a central angle of
13 degrees 30 minutes to an iron rod; thence South 53 degrees 42 minutes 00
seconds East along said right of way line 178.65 feet to an iron rod; thence
South 00 degrees 00 minutes 30 seconds West along said right of way line 42.18
feet to an iron rod; thence North 53 degrees 42 minutes 00 seconds West 254.31
feet to an iron rod; thence 621.51 feet along a curve to the right having a
radius of 2,637.78 feet and a central angle of 13 degrees 30 minutes to an iron
rod; thence North 40 degrees 12 minutes 00 seconds West 105.61 feet to the point
of beginning.
PARCEL 4:
A strip of land 40 feet wide, lying in the East one half of Section 1, Township
37 North, Range 10 West of the Second Principal Meridian, Lake County, Indiana,
described as commencing at the intersection of the East section line and the
Northerly line of the Baltimore and Ohio Railroad right of way; thence North 0
degrees 00 minutes 00 seconds East along the East Section line 92.96 feet to an
iron rod marking the point of beginning, said point being on a line 40 feet from
the Northerly right of way line of the Elgin Joliet and Eastern Railroad; thence
North 42 degrees 12 minutes 00 seconds West parallel with said Northerly right
of way line 1,718.57 feet to an iron rod; thence North 49 degrees 18 minutes 00
seconds East 40.00 feet to an iron rod and said Northerly right of way line;
thence South 40 degrees 12 minutes 00 seconds East along said Northerly right of
way line 1,671.2 feet to an iron rod and the East line of said Section 1; thence
South 00 degrees 00 minutes 00 seconds West 61.97 feet to the point of
beginning.
EXHIBIT A
Description of property at: Hammond, Indiana
To: Hammond Port Authority
CSXT Deed File No.: 18089-021-999-GJK
DESCRIPTION: A parcel of land lying in Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 10
West of the Second Principal Meridian and in Section 36, Township 38 North,
Range 10 West of the Second Principal Meridian more particularly described as
follows: Commencing at the Southeast corner of said Section 1; thence North 0"
00' 00" East along the East line of said Section 1, a distance of 4054.78 feet
to the point of beginning; thence North 40" 13' 01" West, along the
Southwesterly line of the 100 foot wide right of way of the Elgin, Joliet and
Eastern Railroad, a distance of 6443.91 feet; thence North 47" 49' 16" West,
along said right of way line, a distance of 279.19 feet to the Indiana-Illinois
State Line; thence South 0' 08' 59 West, along said State Line, a distance of
134.52 feet; thence South 39' 25' 04" East; along a line 25.00 feet
Northeasterly, by perpendicular measurement, and parallel to the track
centerline of the Northeasterly tracks of the Baltimore and Ohio (CSX) R.R., a
distance of 1474.75 feet to a point of curve; thence Southeasterly along a curve
(25.00 feet distance from said track centerline) concave to the Northeast and
having a radius of 24,878.52 feet, an arc distance of 281.71 feet: (the chord of
which bears South 29" 34' 29" East, a distance of 281.77 feet); thence South 40"
14' 05" East (25.00 feet distance from said track centerline), a distance of
3916.53' (set to a point of curve; thence Southeasterly along a curve (25.00
feet distance from said track centerline) concave to the Northeast and having a
radius of 7051.15 feet, an arc distance of 1043.75 feet (the chord of which
bears South 44" 28' 16" East, a distance of 1042.84 feet) to the East line of
said Section 1; thence North 0" 00' 00" East along said East line, a distance of
101.51 feet to the point of beginning, containing 21.255 acres, more of less all
in the City of Xxxxxxx, Lake County, Indiana.
The Premises are shown on a print survey dated October 25, 1990, prepared
by Xxxx X. Xxxxxxxx, Xx. 00000, Xxxxxxxx Engineering Company, 000 Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000, incorporated herein by reference.
BEING all or part of the same property acquired by Grantor, or its
predecessor, by the following instruments, recorded among the Public Land
Records of Lake County, Indiana:
Acquired Acquired Date of
By Prog Instrument Book Fare
-------- -------- ------------- --------------- ---------
B.P.&C. Rwy. * Xxxxx Xxxxxxxx 02/1874 B&02 530
B&O&C RR** X.X. Xxxxxx 05/21/1888 44 112
B&O&C RR Xxxxxx Xxxxx 07/02/1888 44 114
B.P.&C. Rwy G. W. Truxbury 08/12/1874 P 336
C&CT Rwy.*** Xxxxxxxxx Xxxxxx 12/27/1888 None None
C&CT Rwy. B&O&C RR 12/12/1891 59 272
* B.P.&C Rwy.--Baltimore, Pittsburgh & Chicago Railway
** B&O&C RR -- Baltimore & Ohio & Chicago Railroad
*** C&CT Rwy. -- Chicago & Calumet Terminal Railway
[IMAGE OF EXHIBIT A]
EXH [A]
TEMPORARY LICENSE AGREEMENT
12/05/95
The HAMMOND PORT AUTHORITY ("LICENSOR"), for good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
and to the extent of its present or hereafter acquired right, title and
interest, if any, in and to that portion of the real estate described on Exhibit
"A" attached hereto and incorporated herein by this reference that is generally
depicted on Exhibit "B" attached hereto and incorporated herein by this
reference (the "LICENSE AREA"), does hereby GRANT to Hammond Bridge and Road
Works, L.L.C. ("LICENSEE") a temporary license (the "LICENSE") in, under, over
and through the LICENSE AREA for (a) the installation and construction of
docking, staging, guest and parking facilities and related equipment and
improvements (said facilities and related equipment and improvements are
collectively referred to as the "FACILITIES"), and (b) drainage, entry upon,
passage over, deposit of excavated earth, and storage of material and equipment
as may be necessary or useful for the initial installation and construction of
the FACILITIES.
In consideration of the grant of the foregoing license, LICENSEE does
hereby covenant and agree as follows:
(a) LICENSEE shall protect, defend, indemnify and save harmless the
LICENSOR and each agency, commission, department, officer and
representative of LICENSOR from and against all liabilities,
obligations, claims, damages, penalties, causes of action and other
costs and expenses (including, without limitation, attorneys fees,
court costs and litigation expenses), imposed upon or incurred by or
asserted against LICENSOR or any agency, commission, department,
officer or representative of LICENSOR as a result of or in connection
with (i) the entry by LICENSEE or anyone claiming by or through
LICENSEE on all or any portion of the LICENSEE AREA, (ii) the
installation or construction of the FACILITIES, or (iii) the failure
of LICENSEE to perform its obligations under this Temporary License
Agreement. LICENSEE'S obligations under this subparagraph (a) shall
survive the termination of this Temporary License Agreement.
(b) LICENSEE shall promptly discharge (or cause to be discharged) all
mechanic's laborer's, materialmen's, supplier's and vendor's liens
arising out of or connected with the exercise by LICENSEE or its
agents or contractors of the rights granted to it by this Temporary
License Agreement or the installation or construction of the
FACILITIES. If, within sixty (60) days from the filing of any lien,
LICENSEE shall fail to obtain (or cause to be obtained) the discharge
of such lien, then LICENSOR may (but is under no obligation to) (i)
obtain the discharge of the lien and (ii) recover from LICENSEE all
costs and expenses associated therewith. This subparagraph (b) shall
not be deemed to create the right to file or obtain a lien against the
LICENSE AREA or any portion thereof if such right does not already
exist under applicable law.
(c) The FACILITIES shall be installed and constructed at LICENSEE's sole
cost and expense.
(d) The construction delegation of LICENSOR and their counsel shall be
allowed to attend all construction meetings and shall receive adequate
prior notice of the same.
(e) LICENSEE shall provide or require any private contractor performing
any installation or construction of the FACILITIES to provide, at
no cost or expense to LICENSOR, liability and property damage
insurance in an amount acceptable to LICENSOR naming LICENSOR as a
co-insured.
(f) LICENSEE shall, at its cost and expense, comply with all of the
requirements of county, municipal, state, federal and other applicable
governmental authorities, now in force, or which may hereinafter be in
force, pertaining to the installation or construction of the
FACILITIES, and shall faithfully observe all municipal and county
ordinances and state and federal statutes now in force or which may
hereinafter be in force that are applicable to the installation or
construction of the FACILITIES.
(g) LICENSEE shall cause the FACILITIES to be installed and constructed in
accordance with the plans and specifications therefore, which plans
and specifications shall be provided to LICENSOR prior to commencing
the installation
2
or construction of any of the FACILITIES, which plans and
specifications provided to LICENSOR shall be upon the foot print as
attached hereto as Exhibit "C".
(h) LICENSEE shall conduct its activities pursuant to this License
Agreement so as to minimize negative impacts upon the Xxxxxxx Xxxxxx
and the users thereof and shall at all times maintain suitable access
to the Marina and the facilities thereof and shall not cause LICENSOR
to cease or interrupt its usual and customary functions.
LICENSOR agrees that LICENSEE shall have the right to grant other entities
and individuals the right to perform any or all of the installation or
construction of the FACILITIES provided that any such other entities and
individuals agree to abide by the comply with the terms and provisions of this
Temporary License Agreement to the same extent as if they were the license
hereunder, with the prior approval of LICENSOR which approval shall not be
unreasonably held.
LICENSEE acknowledges and agrees that (a) LICENSOR does not represent or
warrant to LICENSEE that it has whatever right, title or interest in or to the
LICENSE AREA or any specified portions thereof that is necessary to grant the
LICENSE to LICENSEE, and (b) LICENSEE is accepting this Temporary License
Agreement upon the condition and with full knowledge that LICENSOR may not have
whatever right, title or interest in or to the LICENSE AREA or specified
portions thereof that is necessary to grant the LiCENSE to LICENSEE with respect
to the LICENSE AREA or any specified portions thereof; provided, that if
LICENSOR subsequently acquires whatever right, title or interest in or to the
LICENSE AREA or specified portions thereof that is necessary to grant the
LICENSE to LiCENSEE with respect to the LICENSE AREA or specified portion
thereof, the LICENSE and this Temporary License Agreement shall become effective
as to such right, title and interest in the LICENSE AREA or specified portions
thereof as of the date of such acquisition.
This Temporary License Agreement, and the covenants and agreements made in
consideration therefor, shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
The invalidity or unenforceability of any covenant, condition, term or
provision of this Temporary License Agreement shall not affect the validity or
enforceability of any other covenant, condition, term or provision.
3
This temporary License Agreement shall terminate January 15, 1996.
The covenants, conditions, terms and provisions of this Temporary License
Agreement shall be governed by (and construed in accordance with) the laws of
the State of Indiana.
IN WITNESS WHEREOF, LICENSOR has duly executed this instrument this 7th day
of December, 1995.
HAMMOND POINT AUTHORITY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Printed: XXXXXX X. XXXXXXX
---------------------
Title: Chairman
-----------------------
ATTEST:
/s/ Xxxxx Xxxxxxxx
-----------------------------
XXXXX XXXXXXXX Secretary
STATE OF INDIANA )
) SS:
COUNTY OF LAKE )
Before me, the undersigned, a Notary Public, in and for said County and
State this 7th day of December, 1995, personally appeared Xxxxxx Xxxxxxx,
Chairman and Xxxxx Xxxxxxxx, Secretary, respectively, acting for and on behalf
of the xxxxxxx Port Authority who acknowledged the execution of the foregoing
instrument as their voluntary act for the uses and purposes set forth therein.
Witness my hand and notarial seal this 7th day of December, 1995.
Notary Public
X.X. XXXXX
-------------------------
Printed
I am a resident of Lake County, Indiana.
My commission expires:
12/17/98
----------------------
4
The HAMMOND BRIDGE AND ROAD WORKS, L.L.C., by its duly authorized officers
does hereby accept the foregoing Temporary-License Agreement, and it covenants
and agrees as provided therein.
Made and Executed this 15th day of DECEMBER, 1995.
HAMMOND BRIDGE AND ROAD WORKS,
L.L.C.
Printed: /s/ Xxxxxxx Xxxxxx
---------------------------
Title: V.P.
-----------------------------
ATTEST:
Xxxxx XxXxxxxxx
-------------------------
Asst Secretary
STATE OF INDIANA )
) SS:
COUNTY OF )
Before me, the undersigned, a Notary Public, in and for said County and
State this 15th day of DECEMBER, 1995, personally appeared Xxxxxxx Xxxxxx, Vice
President and Xxxxx XxXxxxxxx, Assistant Secretary, respectively, acting for and
on behalf of the HAMMOND BRIDGE AND ROAD WORKS, L.L.C., who acknowledged the
execution of the foregoing instrument as their voluntary act for the uses and
purposes set forth therein.
Witness my hand and notarial seal this 15th day of DECEMBER __, 1995.
Notary Public
X.X. XXXXX
-----------------------------------
Printed
I am a resident of Lake County, Indiana.
My commission expires:
12-17-98
----------------------
5
PARCEL 1A
PARCEL 1: PART OF THE NORTHWEST QUARTER OF SECTION 6, TOWNSHIP 37 NORTH, RANGE 9
WEST OF THE SECOND PRINCIPAL MERIDIAN, IN LAKE COUNTY, INDIANA, MORE
PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WEST
LINE OF SECTION 6 AND THE NORTHERLY LINE OF THE BALTIMORE AND OHIO RAILROAD
RIGHT OF WAY; THENCE NORTH 00 DEGREES 00 MINUTES 00 SECONDS EAST ALONG THE WEST
SECTION LINE 154.93 FEET; THENCE SOUTH 40 DEGREES 12 MINUTES 11 SECONDS EAST
61.97 FEET TO A CROSS IN THE CONCRETE WALK MARKING THE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 40 DEGREES 12 MINUTES 00 SECONDS EAST, 90.97 FEET TO AN
IRON ROD; THENCE ON A CURVE TO THE LEFT 230.01 FEET, SAID CURVE HAVING A RADIUS
OF 2,814.93 FEET, A CENTRAL ANGLE OF 04 DEGREES 40 MINUTES 54 SECONDS AND A
CHORD THAT BEARS SOUTH 42 DEGREES 32 MINUTES 27 SECONDS EAST 229.94 FEET TO A
POINT; THENCE NORTH 36 DEGREES 10 MINUTES 42 SECONDS EAST, 385.02 FEET ALONG THE
LAKESIDE FACE OF THE SHEET PILING TO A POINT ON THE SHORELINE OF LAKE MICHIGAN
AS OF FEBRUARY 8, 1989; THENCE NORTHWESTERLY ALONG THE FEBRUARY 8, 1989,
SHORELINE OF LAKE MICHIGAN, 494 FEET TO THE EASTERLY RIGHT OF WAY LINE OF
CALUMET AVENUE; THENCE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS WEST ALONG SAID
RIGHT OF WAY LINE 281.19 FEET TO THE POINT OF BEGINNING.
PARCEL 2: AN "L" SHAPED PARCEL OF LAND LYING IN THE XXXXXXXXX XXXXXXX XX
XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 9 WEST OF THE SECOND PRINCIPAL MERIDIAN, IN
LAKE COUNTY, INDIANA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
INTERSECTION OF THE WEST LINE OF SECTION 6 AND THE NORTHERLY LINE OF THE
BALTIMORE AND OHIO RAILROAD RIGHT OF WAY; THENCE NORTH 00 DEGREES 00 MINUTES 00
SECONDS EAST ALONG THE WEST SECTION LINE 154.93 FEET; THENCE SOUTH 40 DEGREES 12
MINUTES 11 SECONDS EAST 61.97 FEET TO A CROSS IN THE CONCRETE WALK; THENCE
CONTINUING SOUTH 40 DEGREES 12 MINUTES 00 SECONDS EAST 90.97 FEET TO AN IRON
ROD; THENCE ON A CURVE TO THE LEFT 230.01 FEET SAID CURVE HAVING A RADIUS OF
2814.93 FEET, A CENTRAL ANGLE OF 04 DEGREES 40 MINUTES 54 SECONDS AND A CHORD
THAT BEARS SOUTH 42 DEGREES 32 MINUTES 27 SECONDS EAST 229.94 FEET TO A POINT
MARKING THE POINT OF BEGINNING; THENCE ALONG SAID CURVE TO THE LEFT 40.45 FEET,
SAID CURVE HAVING A CENTRAL ANGLE OF 00 DEGREES 49 MINUTES 24 SECONDS AND A
CHORD THAT BEARS SOUTH 45 DEGREES 17 MINUTES 36 SECONDS EAST, 40.45 FEET TO A
POINT; THENCE NORTH 36 DEGREES 10 MINUTES 42 SECONDS EAST, 799.93 FEET TO A
POINT; THENCE SOUTH 53 DEGREES 43 MINUTES 37 SECONDS EAST, 110.0 FEET TO A
POINT; THENCE NORTH 36 DEGREES 16 MINUTES 42 SECONDS EAST, 90.00 FEET TO A POINT
ON THE SHORELINE OF LAKE MICHIGAN AS OF FEBRUARY 8, 1989; THENCE ALONG THE
LAKESIDE FACE OF THE SHEET PILING NORTH 53 DEGREES 43 MINUTES 37 SECONDS WEST
98.83 FEET TO A CORNER OF THE SHEET PILING; THENCE SOUTH 81 DEGREES 10 MINUTES
15 SECONDS WEST, 72.38 FEET TO A CORNER OF THE SHEET PILING; THENCE SOUTH 81
DEGREES 10 MINUTES 15 SECONDS WEST, 72.38 FEET TO A CORNER OF THE SHEET PILING;
THENCE SOUTH 36 DEGREES 10 MINUTES 42 SECONDS WEST, 832.73 FEET TO THE POINT OF
BEGINNING.
[ILLUSTRATION APPEARS HERE]
EXHIBIT B
[ILLUSTRATION APPEARS HERE]
EXHIBIT "C"
Made and Executed this 12 day of March, 1996.
XXXXXXX BRIDGE AND ROAD WORKS
L.L.C.
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Printed: Xxxxxxx Xxxxxx
---------------------
Title: Vice President
---------------------
ATTEST:
/s/ Xxxxx XxXxxxxxx
----------------------------------
Xxxxx XxXxxxxxx, Assistant
Secretary
STATE OF INDIANA
SS:
COUNTY OF LAKE
Before me, the undersigned, a Notary Public, in and for said County and
State this 12th day of March, 1996, personally appeared Xxxxxxx Xxxxxx, Vice
President and Xxxxx XxXxxxxxx, Assistant Secretary, respectively, acting for and
on behalf of the Xxxxxxx Bridge and Road Works, L.L.C., who acknowledged the
execution of the foregoing instrument as their voluntary act for the uses and
purposes set forth therein.
Witness my hand and notarial seal this 12th day of March 1996.
Notary Public
/s/ Xxxxxxxx X. Pieiil
--------------------------
Xxxxxxxx x. Pieiil
I am a resident of Xxxxxx County.
My commission expires: 2/17/98
-2-
termination of this Temporary License Agreement.
(b) LICENSEE shall promptly discharge (or cause to be discharged) all
mechanic's, laborer's, materialmen's, supplier's and vendor's liens
arising out of or connected with the exercise by LICENSEE or its
agents or contractors of the rights granted to it by this Temporary
License Agreement or the installation, construction or relocation of
the FACILITIES. If, within sixty (60) days from the filing of any
lien, LICENSEE shall fail to obtain (or cause to be obtained) the
discharge of such lien, then LICENSOR may (but is under no obligation
to) (i) obtain the discharge of the lien and (ii) recover from
LICENSEE all costs and expenses associated therewith. This
subparagraph (b) shall not be deemed to create the right to file or
obtain a lien against the LICENSE AREA or any portion thereof if such
right does not already exist under applicable law.
(c) The FACILITIES shall be installed, constructed and relocated at
LICENSEE's sole cost and expense.
(d) The construction delegation of LICENSOR and their counsel shall be
allowed to attend all construction meetings and shall receive adequate
prior notice of the same.
(e) LICENSEE shall provide or require any private contractor performing
any installation, construction or relocation of the FACILITIES to
provide, at no cost or expense to LICENSOR, liability and property
damage insurance in an amount acceptable to LICENSOR naming LICENSOR
as a co-insured.
(f) LICENSEE shall, at its cost and expense, comply with all of the
requirements of county, municipal, state, federal and other applicable
governmental authorities, now in force, or which may hereinafter be in
force, pertaining to the installation, construction or relocation of
the FACILITIES, and shall faithfully observe all municipal and county
ordinances and state and federal statutes now in force or which may
hereinafter be in force that are applicable
2
to the installation, construction or relocation of the FACILITIES.
(g) LICENSEE shall cause the FACILITIES to be installed, constructed and
relocated as generally depicted in the diagram identified as Job No.
94-470 of American Consulting Engineers, Inc., labeled Preliminary
3/31/95 Plan F Revised.
(h) LICENSEE shall conduct its activities pursuant to this License
Agreement so as to minimize negative impacts upon the Xxxxxxx Xxxxxx
and the users thereof and shall at all times maintain suitable access
to the Marina and the facilities thereof and shall not cause LICENSOR
to cease or interrupt its usual and customary functions.
LICENSOR agrees that LICENSEE shall have the right to grant other entities
and individuals the right to perform any or all of the installation,
construction or relocation of the FACILITIES provided that any such other
entities and individuals agree to abide by and comply with the terms and
provisions of this Temporary License Agreement to the same extent as if they
were the licensee hereunder, with the prior approval of LICENSOR, which approval
shall not be unreasonably withheld.
LICENSEE acknowledges and agrees that (a) LICENSOR does not represent or
warrant to LICENSEE that it has whatever right, title or interest in or to the
LICENSE AREA or any specified portions thereof that is necessary to grant the
LICENSE to LICENSEE, and (b) LICENSEE is accepting this Temporary License
Agreement upon the condition and with full knowledge that LICENSOR may not have
whatever right, title or interest in or to the LICENSE AREA or specified
portions thereof that is necessary to grant the LICENSE to LICENSEE with respect
to the LICENSE AREA or any specified portions thereof; provided, that if
LICENSOR subsequently acquires whatever right, title or interest in or to the
LICENSE AREA or specified portions thereof that is necessary to grant the
LICENSE to LICENSEE with respect to the LICENSE AREA or specified portion
thereof, the LICENSE and this Temporary License Agreement shall become effective
as to such right, title and interest in the LICENSE AREA or specified portions
thereof as of the date of such acquisition.
This Temporary License Agreement, and the covenants and agreements made in
consideration therefore, shall be binding upon the inure to the benefit of the
parties hereto and their successors and assigns.
3
The invalidity or unenforceability of any covenant, condition, term or
provision of this Temporary License Agreement shall not affect the validity or
enforceability of any other covenant, condition, term or provision.
This temporary License Agreement shall terminate on January 15, 1996.
The covenants, conditions, terms and provisions of this Temporary License
Agreement shall be governed by (and construed in accordance with) the laws of
the State of Indiana.
IN WITNESS WHEREOF, LICENSOR has duly executed this instrument this 7th day
of December, 1995.
HAMMOND PORT AUTHORITY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Printed: XXXXXX X. XXXXXXX
------------------------
Title: Chairman
--------------------------
ATTEST:
/s/ Xxxxx Xxxxxxxx
------------------------------
XXXXX XXXXXXXX Secretary
STATE OF INDIANA )
) SS:
COUNTY OF LAKE )
Before me, the undersigned, a Notary Public, in and for said County and
State this 7th day of December, 1995, personally appeared XXXXXX XXXXXXX,
Chairman, and XXXXX XXXXXXXX, Secretary, respectively, acting for and on behalf
of the Hammond Port Authority, who acknowledged the execution of the foregoing
instrument as their voluntary act for the uses and purposes set forth therein.
Witness my hand and notarial seal this 7th day of December, 1995.
/s/ X.X. Xxxxx
--------------------------------
Notary Public
X.X. Xxxxx
--------------------------------
Printed
I am a resident of Lake County, Indiana.
My commission expires:
12/17/98
------------------------
4
The HAMMOND BRIDGE AND ROAD WORKS, L.L.C., by its duly authorized officers
does hereby accept the foregoing Temporary License Agreement, and it covenants
and agrees as provided therein.
Made and Executed this 15th day of December, 1995.
XXXXXXX BRIDGE AND ROAD
WORKS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Printed: Xxxxxxx X. Xxxxxx
------------------------
Title: V.P.
--------------------------
ATTEST:
/s/ Xxxxx XxXxxxxxx
------------------------------
Asst. Secretary
STATE OF INDIANA )
) SS:
COUNTY OF LAKE )
Before me, the undersigned, a Notary Public, in and for said County and
State this 15th day of December, 1995, personally appeared Xxxxxxx Xxxxxx,
President and Xxxxx XxXxxxxxx, Asst. Secretary, respectively, acting for and on
behalf of the XXXXXXX BRIDGE AND ROAD WORKS, L.L.C., who acknowledged the
execution of the foregoing instrument as their voluntary act for the uses and
purposes set forth therein.
Witness my hand and notarial seal this 15th day of December, 1995.
/s/ X.X. Xxxxx
--------------------------------
Notary Public
X.X. Xxxxx
--------------------------------
Printed
I am a resident of Lake County, Indiana.
My commission expires:
12/17/98
------------------------
5
