EXHIBIT 10.29
FIRST AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT (this
"Amendment") is made and entered as of the ___ day of
______________, 1996 and is by and between the St. Louis County
Port Authority, a public body corporate and politic of the State
of Missouri ("Landlord"), and Southboat Limited Partnership, a
Missouri Limited Partnership ("Tenant").
RECITALS
WHEREAS, in October 1995, Landlord and Tenant executed that
certain Lease and Development Agreement (the "Lease") in
connection with certain real property (the "Property") more
particularly described in Attachments A, B and C to the Lease.
WHEREAS, Section 2(b) of the Lease provides that Tenant shall
have a certain period during which Tenant may satisfy or waive
certain conditions subsequent to the continuing effectiveness of
the Lease, including, without limitation, conditions relating to
Landlord's title to the Premises (as that term is defined in the
Lease).
WHEREAS, Section 2(d) of the Lease provides that Tenant may
object to any matter contained in the commitment for the
leasehold policy of title insurance (the "Commitment") issued to
Tenant on the effective date of the Lease and that, in certain
circumstances, Tenant may cancel the Lease without further
obligation or liability as a result of the matters to which it
has objected pursuant to Section 2(d) of the Lease.
WHEREAS, upon review of the Commitment, Tenant objected to
certain exceptions to title of the Premises including (i) a 25
foot wide right-of-way and easement (the "Strip") granted to the
Mississippi River Transmission Corporation along the western
boundary of the Premises; (ii) the location of a sewer line
running west to east across the Premises, (the "Sewer Line") and
(iii) the right-of-way in favor of St. Louis County for the
extension of Xxxxx Avenue (collectively, the "Exceptions").
WHEREAS, to address Tenant's objection to the Strip, the
Board of Commissioners of the Landlord approved on March 19, 1996
a substitution (the "Substitution") of 25 feet of land to the
north of the Premises (the "Land") for the Strip, on condition
that any increase in cost resulting from the Substitution be
borne by Tenant.
WHEREAS, to address Tenant's objection to the Sewer Easement,
Landlord has agreed to grant a replacement easement to the
Metropolitan St. Louis Sewer District ("MSD") subject to the
Tenant paying all costs of inspections and removal, relocation or
replacement of the Sewer Line.
WHEREAS, to address Tenant's objection to the right-of-way
for Xxxxx Avenue, Landlord has agreed to use its best efforts to
cause St. Louis County to vacate the right-of-way upon dedication
to St. Louis County of the extension of Xxxxxxxxxxx Avenue.
WHEREAS, Landlord has also agreed to provide for the
dedication of alternative wetland areas for wetland areas located
on the Premises.
NOW, THEREFORE, for and in consideration of the foregoing,
and of the mutual premises and undertakings contained in this
Amendment, and intending to be legally bound hereby, Landlord and
Tenant hereby agree that the Recitals set forth above are true
and accurate and further agree as follows:
1. MODIFICATION OF DESCRIPTION OF PREMISES. Landlord and
Tenant hereby agree that Attachment B to the Lease (legal
description of the Premises) is hereby amended and modified to
effectuate the Substitution. The legal description of the
Premises, as amended herein, is set forth on Exhibit "A" attached
hereto and incorporated herein by this reference. Tenant hereby
agrees that any increase in cost resulting from the Substitution
shall be borne by Tenant.
2. RELOCATION OF THE SEWER LINE. Landlord hereby agrees
to the relocation of the Sewer Line in accordance with plans
approved by MSD and to grant to MSD an easement as reasonably
necessary to accommodate such relocation and Tenant has agreed to
provide for all costs related to the inspection and removal,
relocation or replacement of the Sewer Line.
3. PROVISION FOR ADDITIONAL WETLAND AREAS. Landlord
hereby agrees to designate wetland areas to replace the wetland
areas located on the Premises and Tenant hereby agrees to pay for
any costs associated with the replacement of the wetland areas
located on the Premises.
4. ENVIRONMENTAL REMEDIATION. Tenant agrees to bear all
costs related to clean-up and remediation of any hazardous wastes
on the Premises.
5. ACCEPTANCE OF PREMISES. Tenant hereby agrees that it
accepts the Premises.
6. RESERVATION OF RIGHTS. Landlord and Tenant hereby
agree that except as otherwise specifically provided in this
Amendment, nothing in this Amendment waives or otherwise
relinquishes (or shall be construed to waive or otherwise
relinquish) any of the rights of Landlord or Tenant under the
Lease.
7. MISCELLANEOUS PROVISIONS.
a. MERGER AND MODIFICATION. This Amendment contains
and/or incorporates the entire agreement of Landlord and Tenant
with respect to the specific subject matter hereof and neither
Landlord nor Tenant shall be bound by anything not expressed in
this writing. No alteration or other modification of this
Amendment shall be effective unless such alteration or other
modification shall be in writing and signed by Landlord and
Tenant.
b. HEADINGS. The subject headings of the Sections
and Subsections of this Amendment are included only for purposes
of convenience, and shall not effect the construction or
interpretation of any of the provisions herein.
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c. ATTORNEYS' FEES. In the event that any action is
filed in relation to this Amendment, the unsuccessful party to
such action shall pay to the successful party, in addition to any
other sum or performance that either party may be called upon to
pay or render, a reasonable sum for the successful party's
attorneys' fees and costs incurred as a result of such action.
d. SEVERABILITY. If any provision or section of this
Amendment is declared invalid by a court of competent
jurisdiction, the remaining provisions hereof shall not be
affected thereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
"LANDLORD" "TENANT"
ST. LOUIS COUNTY PORT SOUTHBOAT LIMITED PARTNERSHIP
AUTHORITY By: Showboat Xxxxx, Inc., its
general partner
By:_______________________ By:______________________
Its:______________________ Its:_____________________
EXHIBIT A
(Legal description of the Property and the Premises, as those
terms are defined in the Lease)
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SECOND AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT to the Lease and Development Agreement
dated October 1995, as amended on May 21, 1996 (together the
"Lease"), is made and entered into as of the 12th day of
December, 1996, by and between the ST. LOUIS COUNTY PORT
AUTHORITY, a public body corporate and politic of the State of
Missouri ("Landlord"), and SOUTHBOAT LIMITED PARTNERSHIP, a
Missouri limited partnership ("Tenant").
WHEREAS, the parties to this Amendment have entered into a
Lease and Development Agreement dated October 1995 in connection
with certain real property more particularly described in
Attachments A, B and C to the Lease; and
WHEREAS, Section 3(c) provides, in part, that the Landlord
or Tenant shall have the right to terminate the Lease in the
event that, if for any reason other than Unavoidable Delay or a
delay caused by the Landlord or St. Louis County, and
notwithstanding Tenant's diligent pursuit of Gaming Licensure,
the Investigation Date has not occurred on or before the
expiration of the fourteen month period commencing on the
Effective Date (the "Investigation Deadline") or the Tenant
reasonably determines, based upon communications with or
information received from the Gaming Commission staff, that the
Commission will not commence the investigation before the
Investigation Deadline; and
WHEREAS, based upon information received from the Gaming
Commission staff, the Commission will not commence its
investigation of Tenant before the Investigation Deadline; and
WHEREAS, the Landlord and Tenant believe that it will be in
their respective best interests to extend the fourteen month
period referred to in Section 3(c) for an additional twelve month
period; and
WHEREAS, both Landlord and Tenant desire to enter into a
written modification of Section 3(c) of the Lease;
NOW, THEREFORE, for and in consideration of the foregoing
and the mutual considerations contained in this Amendment, the
parties agree as follows:
1. The Lease dated October 1995 between Landlord and Tenant
shall be modified by this Second Amendment effective the 12th day
of December, 1996, as follows:
Section (c)(i) is hereby amended to read as
follows:
(i) notwithstanding Tenant's diligent pursuit of
Gaming Licensure, if the Investigation Date has
not occurred on or before the expiration of the 26
month period commencing on the Effective Date (the
"Investigation Deadline") or Tenant reasonably
determines, based on communications with or
information received from the Commission staff,
that the Commission will not commence the
Investigation before the Investigation Deadline.
2. Except as modified by this Second Amendment to the
Lease, the Lease and the First Amendment to the Lease shall
remain in full force and effect and the parties shall remain
bound by all of their terms and conditions.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date and year first above written.
ST. LOUIS COUNTY PORT AUTHORITY
("Landlord")
By: /s/
Its: Chairman
SOUTHBOAT LIMITED PARTNERSHIP
("Tenant")
By: Showboat Xxxxx, Inc., its
general partner
By: /s/ H. Xxxxxxx Xxxxx
Its: Secretary
