EXHIBIT 10.13
GROUND LEASE
by and between
CITY OF SHREVEPORT,
as Landlord
and
QNOV,
as Tenant
May 19, 1999
Table of Contents
ARTICLE I - DEMISING OF PREMISES 1
ARTICLE II - DEFINITIONS 2
ARTICLE III - TERM 13
3.01 Initial Term and Renewal Term(s) 13
3.02 Deemed Exercise of Renewal Options 14
3.03 Default by Tenant 15
3.04 Termination During Initial Term 15
3.05 Confirmation of Dates 15
3.06 Termination by Tenant 15
ARTICLE IV - DEVELOPMENT AND CONSTRUCTION 16
4.01 Construction 16
4.02 Standards for Construction of Shoreside Complex 17
4.03 Review by Design Review Committee 17
4.04 Arbitration 18
4.05 Sidewalks 19
4.06 Elevated Walkways 19
4.07 Cooperation by Landlord 19
4.08 Title to Personal Property 20
4.09 Equipment Liens 20
4.10 Riverboat Casinos 20
4.11 Traffic Study 21
4.12 Utilities 21
ARTICLE V - RENT 22
5.01 Means of Payment 22
5.02 Rent Prior to Construction Commencement Date 22
5.03 Fixed Rent 22
5.04 Percentage Rent 23
5.05 Reporting and Payment 23
5.06 Accounting Records 23
5.07 Annual Audit Procedures 23
5.08 Confidentiality 24
5.09 Additional Rent 24
5.10 Minimum Percentage Rent 24
ARTICLE VI - ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS 24
6.01 Landlord's Net Return 24
6.02 Impositions 25
6.03 Assessments In Installments 25
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6.04 Combined Tax Lots 25
6.05 Direct Payment by Landlord 26
6.06 Utilities 26
ARTICLE VII - USE 26
7.01 Permitted Uses 26
7.02 Riverboat Casino 26
7.03 Parking 26
ARTICLE VIII - MARKS AND PUBLICITY 27
8.01 Exclusive Ownership of Marks 27
8.02 References to Marks 27
8.03 Effect of Lease Termination 27
8.04 Publicity 27
ARTICLE IX - LAW 27
9.01 Compliance with Law 27
9.02 Mandated Alterations 27
ARTICLE X - MAINTENANCE AND ALTERATIONS 28
10.01 Obligation to Maintain 28
10.02 Hotel Maintenance 28
10.03 Improvements and Structures. 29
10.06 Existing Improvements 30
ARTICLE XI - PROHIBITED LIENS 30
11.01 Tenant's Covenant 30
11.02 Protection of Landlord 31
ARTICLE XII - INDEMNIFICATION; LIABILITY OF LANDLORD 31
12.01 Mutual Indemnity Obligations 31
12.02 Liability of Landlord 32
12.03 Indemnity Relating to Access 32
12.04 Indemnification Procedures 32
ARTICLE XIII - RIGHT OF CONTEST 33
ARTICLE XIV - INSURANCE 34
14.01 Tenant to Insure 34
14.02 Nature of Insurance Program 35
14.03 Policy Requirements and Endorsements 35
14.04 Deliveries to Landlord 36
14.05 Blanket and Umbrella Policies 36
14.06 Waiver of Certain Claims 36
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14.07 No Representation of Adequate Coverage 36
ARTICLE XV - DAMAGE OR DESTRUCTION 36
15.01 Notice; No Rent Abatement 36
15.02 Adjustment of Claims; Use of Insurance Proceeds 37
15.03 Depository 37
ARTICLE XVI - CONDEMNATION 37
16.01 Substantial Condemnation 37
16.02 Insubstantial Condemnation 37
16.03 Temporary Condemnation 38
16.04 Other Governmental Action 38
16.05 Assignment of Condemnation Proceeds 38
16.06 Settlement or Compromise 38
16.07 Prompt Notice 39
16.08 Taking or Termination of Lease by Landlord 39
ARTICLE XVII - TRANSFERS BY LANDLORD 39
17.01 Landlord's Right to Convey 39
17.02 No Encumbrances 39
ARTICLE XVIII - TRANSFERS BY TENANT 39
18.01 Assignment to Related Entities 39
18.02 Acquisitions 39
18.03 Assignment to Unrelated Entities 39
ARTICLE XIX - SUBLETTING 40
19.01 Tenant's Right to Sublet 40
19.02 Subordination, Attornment and Nondisturbance 40
19.03 No Release of Tenant Upon Sublease 41
19.04 Assignment of Sublease Rents 41
ARTICLE XX - TENANT'S RIGHT TO MORTGAGE 41
ARTICLE XXI - QUIET ENJOYMENT 41
ARTICLE XXII - REPRESENTATIONS AND WARRANTIES 42
22.01 Due Authorization and Execution 42
22.02 No Litigation 42
22.03 FIRPTA 42
22.04 No Pending Improvements 42
22.05 No Other Tenants 42
22.06 Representations and Warranties in Agreement to Lease 42
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ARTICLE XXIII - FORCE MAJEURE 43
ARTICLE XXIV - ACCESS 43
ARTICLE XXV - LATE PAYMENT 43
ARTICLE XXVI - LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS 43
26.01 Landlord's Option 43
26.02 Reimbursement by Tenant 44
ARTICLE XXVII - DEFAULT BY TENANT; REMEDIES 44
27.01 Events of Default 44
27.02 Remedies 44
27.03 Re-Entry 45
27.04 Pending Dispute Regarding Event of Default 45
27.05 Late Payment Fee 45
ARTICLE XXVIII - TERMINATION 45
28.01 Possession 45
28.02 Adjustment of Revenues and Expenses 45
28.03 Documentation 46
28.04 Miscellaneous Assignments 46
28.05 Termination of Memorandum of Lease 46
28.06 Personal Property and Equipment 46
28.07 Remove Riverboat Casino 46
ARTICLE XXIX - NO BROKER 46
ARTICLE XXX - WAIVERS 47
30.01 No Waiver by Silence 47
30.02 Waiver of Trial by Jury 47
ARTICLE XXXI - MEMORANDUM OF LEASE 47
ARTICLE XXXII - ESTOPPEL CERTIFICATES 47
32.01 Rights to Each Party 47
32.02 Failure to Execute Estoppel Certificate 47
32.03 Delivery of Estoppel Certificates 48
ARTICLE XXXIII - EQUAL OPPORTUNITY EMPLOYMENT AND AFFIRMATIVE
ACTION PLAN 48
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ARTICLE XXXIV - MISCELLANEOUS 50
34.01 Reasonableness 50
34.02 Documents in Recordable Form 51
34.03 Further Assurances 51
34.04 Performance Under Protest 51
34.05 No Third Party Beneficiaries 51
34.06 Interpretation 51
34.07 Captions 51
34.08 Cumulative Remedies 51
34.09 Right of Injunction 52
34.10 Entire Agreement 52
34.11 Amendment 52
34.12 Partial Invalidity 52
34.13 Successors and Assigns 52
34.14 Governing Law 52
34.15 Obligation to Perform 52
34.16 Counterparts 52
34.17 Time Periods 52
34.18 Arbitration Procedures 52
34.19 Dockside Casino 53
34.20 Prohibited Persons 54
34.21 Signs 54
34.22 Taxes, Payments and Services 54
34.23 Riverboat Casino Admission Fee 55
34.24 Hotel Room Blockage Policy 57
34.25 Landlord's Status 57
34.26 Employee Off-Site Parking 57
34.27 References to Sections, Articles and Exhibits 57
34.28 Xxxxxxxx and Civic Theater Parking 57
34.29 SWEPCO Servitude 58
ARTICLE XXXV - STIPULATION AS TO VENUE IN CADDO PARISH 58
ARTICLE XXXVI - NOTICES 58
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Exhibits
A - 1 Pavilion/Hotel Parcel
A - 2 Expansion Parcel
A - 3 North Parking Parcel
A - 4 South Parking Parcel
A - 5 Elevated Walkway Spaces
A - 0 Xxxxx Xxxxxx Parcel
B Permitted Exceptions
C Form of Estoppel Certificate
D Form of Staging Area Servitude Agreement
E Form of SAND Agreement
F Form of Memorandum of Lease
G Leasehold Mortgage Provisions
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GROUND LEASE
THIS GROUND LEASE (this "Lease") is made and entered into as of May 19,
1999 (the "Commencement Date"), between the CITY OF SHREVEPORT, LOUISIANA, a
municipal corporation of the State of Louisiana, represented by Xxxxx Xxxxxxxxx,
its Mayor, duly authorized to act under Ordinance No.217: of 1998 of the City of
Shreveport ("Landlord"), and QNOV, a Louisiana general partnership, represented
herein by and through its general partners Sodak Louisiana, L.L.C., which in
turn is appearing herein by and through Xxxx X. Xxxxx, its Manager, duly
authorized and HWCC-LOUISIANA, INC., which in turn is appearing herein by and
through Xxxx X. Xxxxx, its President, duly authorized ("QNOV").
Recitals
A. Landlord wishes to lease to QNOV, and QNOV wishes to lease from
Landlord, certain immovable property located in the City of Shreveport and more
particularly described in Exhibits "A-1" (the "Pavilion/Hotel Parcel"), "A-2"
(the "Expansion Parcel"), "A-3" (the "North Parking Parcel"), "A-4" (the "South
Parking Parcel"), "A-5" (the "Elevated Walkway Spaces") and "A-6" (the "Texas
Street Parcel") (collectively, the "Premises") for the purpose of constructing
and operating a riverboat/entertainment complex, Hotel (as hereinafter defined),
no less than 1950 surface and structured parking spaces and related facilities
(collectively, the "Shoreside Complex") and for other uses and purposes as set
forth in this Lease.
B. Landlord declares that in entering into this Lease it has complied with
all requirements of Law, including La. R.S. 33:4712.
C. The parties desire to enter into this Lease to set forth their rights
and obligations relating to the Premises.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS OF THE
PARTIES CONTAINED IN THIS LEASE, INCLUDING THE PAYMENT OF RENT (HEREINAFTER
DEFINED), AND IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE (WHICH ARE
INCORPORATED BY REFERENCE IN THIS LEASE), INTENDING TO BE LEGALLY BOUND AND FOR
THE CAUSE EXPRESSED HEREIN, LANDLORD AND TENANT AGREE AS FOLLOWS:
ARTICLE I - DEMISING OF PREMISES
Landlord hereby leases the Premises to Tenant, and Tenant hereby takes and
hires the Premises from Landlord, all subject only to the estates, interests,
liens, charges and encumbrances set forth in Exhibit "B" (the "Permitted
Exceptions"). The Premises are leased to Tenant for the Term defined in this
Lease, upon all the terms and conditions of this Lease.
Landlord represents and warrants to Tenant that Landlord holds good and
clear record and marketable fee simple absolute title and full ownership to the
Premises, together with: (a) all right, title and interest of Landlord, if any,
in and to the land lying in the bed of any street or highway in front of or
adjoining any portion of the Premises; (b) the appurtenances and all the estate
and rights of Landlord in and to the Premises; (c) any strips or alluvion
adjoining any portion of the Premises; and (d) riparian rights and littoral
rights associated therewith, including, but not limited to, all rights necessary
to dock or moor a riverboat casino and related facilities, excepting, however,
all rights in or ownership of the bed or bank of the Red River, being those
lands below the low water line of said river, all of which rights are vested in
the State of Louisiana and administered by the Caddo-Bossier Port Commission, an
agency of the State of Louisiana, all subject only to the Permitted Exceptions.
Notwithstanding the preceding representations and warranties or anything else
contained in this Lease to the contrary, Tenant acknowledges and agrees that
Landlord is making no representation or warranty relative to its title to or
ownership of the Texas Street Parcel. Tenant further acknowledges and agrees
that its lease of the Texas Street Parcel is subject to a servitude of public
use in favor of the public and that such servitude, as it relates to the Texas
Street Parcel, shall be considered a Permitted Exception hereunder for all
purposes.
Notwithstanding the foregoing, Landlord and Tenant acknowledge and agree
that the matters enumerated on Exhibit B-1 (the "Outstanding Title Matters")
hereto presently affect the Premises although they are not Permitted Exceptions.
Landlord, at its sole cost and expense, shall use its best efforts to cause the
satisfaction, termination, cancellation and release of all Outstanding Title
Matters on or before April 30, 1999 (the "Outside Title Date"), or such later
date as may be agreed upon in writing by Landlord and Tenant, to enable Tenant
to receive an owner's policy of title insurance and Tenant's lenders to receive
a mortgagee's policy of title insurance, which do not list any of the
Outstanding Title Matters as exceptions to Tenant's leasehold interest in the
Premises.
ARTICLE II - DEFINITIONS
"Acceptable Payment Discrepancy" is defined in Section 34.22(c).
"Accounting Principles" means generally accepted accounting principles, as
by the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, applied in accordance with applicable requirements
of the Department of Public Safety and Corrections and the LGCB.
"Additional Rent" means any and all sums and payments to be paid by Tenant
pursuant to this Lease other than Fixed Rent, Percentage Rent and amounts
payable under Section 34.23(b).
"Admission Fee" means the admission fee authorized under La. R.S. 27:93 or
any other fee, tax or imposition based upon passengers boarding a Riverboat
Casino, whether levied pursuant to La. R.S. 27:93 or any other law, ordinance or
regulation whatsoever.
"Adjusted Gross Revenue" for any period means the sum of Gross Revenue less
the following revenues actually received by Tenant and included in Gross
Revenues: (i) any gratuities
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or service charges added to a customer's xxxx; (ii) any credits or refunds made
to customers, guests or patrons; (iii) any sums and credits received by Tenant
for lost or damaged merchandise; (iv) any sales taxes, excise taxes, gross
receipt taxes, admission taxes, entertainment taxes, tourist taxes or similar
charges; (v) any proceeds from the sale or other disposition of furnishings and
equipment or other capital assets; (vi) any fire and extended coverage insurance
proceeds; (vii) any condemnation awards; (viii) any proceeds of financing or
refinancing; and (ix) any interest on bank account(s).
"Advisory Council" is defined in Article XXXIII.
"Affiliate" means, as to any entity, another entity that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with such entity.
"Business Day" means any weekday on which national banks are generally open
for the conduct, with bank personnel, of regular banking business.
"Casualty" means any damage or destruction affecting any or all
improvements located on the Premises.
"Combined Tax Lot" is defined in Section 6.04.
"Commencement Date" is defined in the preamble of this Lease.
"Condemnation" means any taking of the Premises or any part of the Premises
by condemnation or by exercise of any right of eminent domain, or by any similar
proceeding or act of any Government.
"Construction Period" is defined in Section 5.02.
"Construction Period Rent" is defined in Section 5.02.
"Construction Trigger Date" means the six month anniversary of the
Commencement Date.
"Construction Commencement Date" means the date upon which construction of
the Shoreside Complex commences.
"Consumer Price Index" means the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, United States City Average, all items (1982-1984 = 100).
If such index is no longer published, then Tenant shall designate a successor
or replacement index of substantially equivalent reliability and objectivity.
The Consumer Price Index in effect for any given date shall be deemed to refer
to the Consumer Price Index last published before such date.
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"Default" means any Monetary Default or Non-Monetary Default. Each and
every covenant of Tenant under this Lease, if not performed by Tenant, shall
give rise to a Default as to which Tenant shall have the cure rights provided
for in this Lease.
"Depository" means an Institutional Lender designated by Tenant to act as
"Depository" where expressly provided for in this Lease.
"Design Development Documents" means documents that (a) illustrate and
describe the refinement of the design of the Shoreside Complex, including site
traffic circulation, parking, ingress and egress, all proposed improvements and
conceptual landscaping plans, (b) establish the scope, relationships, forms,
size and appearance of the Shoreside Complex by means of plans, sections and
elevations and typical construction details and (c) include specifications that
identify major materials and systems and their quality levels.
"Design Review Committee" means a committee of seven individuals whose
meetings and deliberations shall be presided over by the Mayor of Shreveport or,
in the Mayor's absence, his designee. The members of the committee shall be the
Mayor of Shreveport (Chairman), the Chairman of the Shreveport City Council, the
Chairman of the Metropolitan Planning Commission, two citizens selected by the
Mayor from recommendations from members of the Shreveport City Council, and two
citizens selected by the Mayor of Shreveport. Of the seven members, two shall
be certified architects of the State of Louisiana. All members shall be
appointed within thirty (30) days of the Commencement Date.
"Elevated Walkway" means an enclosed climate-controlled pedestrian walkway.
"Elevated Walkway Spaces" is defined in the recitals of this Lease.
"Equipment Liens" means purchase-money security interests, financing
leases, and similar arrangements (including the corresponding UCC-1 financing
statements) relating to Tenant's acquisition or financing of personal property
used in connection with the operation of the Premises and any Riverboat Casino,
sale or installment sale arrangements, or used under licenses, such as
furniture, fixtures and equipment, telephone, telecommunications and facsimile
transmission equipment, point of sale equipment, televisions, radios, and
computer systems, provided that each Equipment Lien encumbers or otherwise
relates to only the property financed or otherwise provided by the secured party
under such Equipment Lien. The lessor, seller or other secured party under an
Equipment Lien may be an Affiliate of Tenant.
"Estoppel Certificate" means a statement in writing containing all (or, at
the option of the Requesting Party, only some) of the statements set forth in
the form attached as Exhibit "C" and containing such additional information
relating to the Lease and the Premises as the Requesting Party shall reasonably
specify.
"Estoppel Certificate Request" is defined in Section 32.01.
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"Event of Default" is defined in Section 27.01.
"Expansion Parcel" is defined in the recitals of this Lease.
"Fee Estate" means Landlord's fee estate in the Premises or any part of the
Premises or any direct or indirect interest in such fee estate. The Fee Estate
is subject to this Lease.
"Fee Mortgage" means any mortgage, deed of trust, deed to secure debt,
assignment, security interest, pledge, financing statement or other
instrument(s) or agreement(s) intended to grant security for any obligation
encumbering the Fee Estate as entered into, renewed, modified, amended, extended
or assigned from time to time during the Term.
"Fee Mortgagee" means any holder of a Fee Mortgage.
"Fiscal Month" means Tenant's actual fiscal month which shall be a calendar
month. If Tenant elects to change its Fiscal Month, it shall give not less than
sixty (60) days' Notice to Landlord specifying the change prior to the effective
date thereof and such change shall not cause a delay in any payment due under
this Lease. Such term shall also mean and refer to any partial Fiscal Month
arising because of a change in Tenant's Fiscal Month, subject to proration of
any periodic payments calculated on the basis of a Fiscal Month.
"Fiscal Year" means Tenant's actual fiscal year which shall be a calendar
year. If Tenant elects to change its Fiscal Year, it shall give not less than
ninety (90) days' Notice to Landlord specifying the change prior to the
effective date thereof and any such change of date shall not cause a delay in or
change the amount of payments due under this Lease. Such term shall also mean
and refer to any partial Fiscal Year arising because of a change in Tenant's
Fiscal Year or because of a variation between the commencement date of Tenant's
Fiscal Year and the date when Tenant is required to commence to pay Percentage
Rent calculated with respect to each Fiscal Year (in each case subject to
proration of any periodic payments calculated on the basis of a Fiscal Year).
"Fixed Rent" is defined in Section 5.03(a).
"Government" means each and every applicable governmental authority,
department, agency, bureau or other entity or instrumentality having
jurisdiction over the Premises, including the federal government of the United
States, the State government and any subdivisions and municipalities thereof,
including the Parish government, and all other applicable governmental
authorities and subdivisions thereof.
"Gross Revenue" means all revenue of any nature derived by Tenant directly
or indirectly from the Shoreside Complex or any Riverboat Casino operated by
Tenant and berthed at the Premises, including food and beverage sales and other
income, rental or other payments from lessees, sublessees, licensees, managers
and concessionaires (but not the gross receipts of such lessees, sublessees,
licensees, managers and concessionaires, except as required by Section 19.01
hereof) net of any real estate or personal property taxes or the like collected
by Tenant or such
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lessees, sublessees, licensees, managers and concessionaires, less an amount
equal to the difference between Promotional Allowances and Room Rate Supplements
for the relevant period, and, in the case of such a Riverboat Casino, Net Gaming
Proceeds of such Riverboat Casino, in each case less items deductible as losses
in the ordinary course of business according to Law. Parking Revenue, if any, is
hereby specifically excluded from Gross Revenue.
"Hollywood" is defined in Section 8.01.
"Hotel" means a hotel and related facilities constructed on the Premises as
described in Section 4.01.
"HWCC" means HWCC-Louisiana, Inc.
"Impositions" means all taxes, special and general assessments, water
rents, rates and charges, commercial rent taxes, sewer rents and other
impositions and charges of every kind and nature whatsoever with respect to the
Premises that may be assessed, levied, confirmed, imposed or become a lien on
the Premises (other than on account of any actions or omissions of Landlord or
conditions existing on, at or with respect to the Premises before the
Construction Commencement Date) by or for the benefit of any Government with
respect to any period commencing on the Construction Commencement Date and
thereafter during the Term together with any taxes and assessments that may be
levied, assessed or imposed by the State or by any political or taxing
subdivision of the State upon the gross income arising from any Rent or in lieu
of or as a substitute, in whole or in part, for taxes and assessments imposed
upon or related to the Premises and commonly known as real estate taxes. The
term "Impositions" shall, however, not include any of the following, all of
which Landlord shall pay before delinquent or payable only with a penalty: (a)
any franchise, income, excess profits, estate, inheritance, succession,
transfer, gift, corporation, business, capital levy, or profits tax, or license
fee, of Landlord; (b) if the Premises is part of a Combined Tax Lot, any taxes
and other Impositions reasonably allocable to any portion of such Combined Tax
Lot other than the Premises, in accordance with the applicable provisions of
this Lease; (c) the incremental portion of any Imposition that would not have
been levied, imposed or assessed but for any sale or other direct or indirect
transfer of the Fee Estate or of any interest in Landlord during the Term; (d)
any charges that would not have been payable but for any act or omission of
Landlord or conditions existing on, at or with respect to the Premises before
the Construction Commencement Date; (e) any charges that are levied, assessed or
imposed against the Premises during the Term based on the recapture or reversal
of any previous tax abatement or tax subsidy, or compensating for any previous
tax deferral or reduced assessment or valuation, or based on a miscalculation or
misdetermination of any charge of any kind imposed or assessed with respect to
the Premises, relating to any period before the Construction Commencement Date;
(f) any sales or other taxes assessed and levied against Landlord's receipt of
Rent hereunder (except where such taxes are imposed, in whole or in part, in
lieu of or in substitution for real estate taxes, in which event same shall be
paid by Tenant); and (g) interest, penalties and other charges with respect to
items "a" through "f."
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"Indemnify" means, as to any Indemnitor, that such Indemnitor shall
indemnify the Indemnitee (and its partners, officers, directors, agents,
officials and employees or their equivalent) and defend and hold the Indemnitee
(and its partners, officers, directors, agents, officials and employees or their
equivalent) harmless from and against any and all losses, costs, claims,
liabilities, penalties, judgments, damages or other injuries, detriments, or
expenses (including reasonable attorneys' fees, court costs, interest and
penalties) reasonably incurred or suffered by the Indemnitee (and its partners,
officers, directors, agents, officials and employees or their equivalent) on
account of the matter that is the subject of such indemnification or in
enforcing the Indemnitor's indemnity.
"Indemnitee" means a party that is entitled to be Indemnified pursuant to
this Lease.
"Indemnitor" means a party that agrees to Indemnify another party pursuant
to this Lease.
"In Lieu Payment" is defined in Section 34.23(b)(i).
"Initial Term" is defined in Section 3.01(a).
"Institutional Lender" means a bank, trust company, savings and loan
association, insurance company, credit union, savings bank, pension, welfare or
retirement fund or system, real estate investment trust, federal or state agency
regularly making or guaranteeing mortgage loans, any other entity actively
engaged in commercial real estate financing and having total assets of at least
$100,000,000, or a corporation or other entity that is a wholly-owned subsidiary
of any of the foregoing entities, including any of the foregoing when acting as
trustee for other lender(s), whether or not such other lender(s) are themselves
Institutional Lenders. The fact that a particular entity (or any affiliate of
such entity) is a partner of the then Tenant under this Lease shall not preclude
such entity from being an Institutional Lender and a Leasehold Mortgagee,
provided that such entity has in fact made a loan to Tenant secured by a
Leasehold Mortgage and otherwise qualified as an Institutional Lender and a
Leasehold Mortgagee (as applicable).
"Insubstantial Condemnation" means any Condemnation other than a
Substantial Condemnation.
"Landlord", as it applies to covenants or obligations of Landlord, shall
refer to the Landlord named in the opening paragraph of this Lease and shall,
throughout the Term, be limited to mean and refer to only the owner of the Fee
Estate.
"Law" or "Laws" means all laws, ordinances, requirements, orders,
directives, rules and regulations of any applicable Government affecting the
development, improvements, alteration, use, maintenance, operation or occupancy
of the Premises or any part of the Premises, whether in force at the
Commencement Date or passed, enacted or imposed thereafter, subject in all
cases, however, to all applicable waivers, variances and exemptions limiting the
application of the foregoing to the Premises. For purposes of determining
Tenant's obligations under this Lease, however, the term "Law" or "Laws" shall
not include any of the foregoing that require the correction or remediation
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of any condition not caused or created by Tenant that affected the Premises at
the Construction Commencement Date.
"Leasehold Estate" means Tenant's leasehold estate arising under this
Lease, upon and subject to all the terms and conditions of this Lease, or any
part of such leasehold estate or any direct or indirect interest in such
leasehold estate.
"Leasehold Mortgage" means any mortgage, deed of trust, deed to secure
debt, assignment security interest, pledge, financing statement or any other
instrument(s) or agreement(s) intended to grant security for any obligation
(including a purchase-money or other promissory note) encumbering the Leasehold
Estate, as entered into, renewed, modified, consolidated, amended, extended or
assigned from time to time during the Term.
"Leasehold Mortgagee" means a holder of a Leasehold Mortgage.
"LGCB" means the Louisiana Gaming Control Board and any of its successor(s)
who preside over gaming activities in the State of Louisiana.
"Loss of License" is defined in Section 3.06(c).
"Mandated Alterations" means any repairs or alterations mandated by Laws
imposed, increased or otherwise rendered more burdensome after the Construction
Commencement Date, including "retro-fitting" and structural alterations, whether
or not such Laws could reasonably have been foreseen at the Construction
Commencement Date.
"Memorandum of Lease" is defined in Article XXXI.
"Minimum Room Rate" means the average daily hotel room rate within the
greater Shreveport metropolitan area for the most recent calendar year as
reported by Xxxxx Travel Research or, if such report is not available, as
reported by any other source generally accepted in the hotel business.
"Monetary Default" means any failure by Tenant to pay any Rent or other sum
of money payable pursuant to this Lease, when and as required to be paid
pursuant to this Lease.
"Mortgage" means a Fee Mortgage or a Leasehold Mortgage.
"Mortgagee" means the holder of any Mortgage.
"M/WBE" is defined in Article XXXIII.
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"Net Gaming Proceeds" means "net gaming proceeds" as defined in La.R.S.
27:44(15) as of the Commencement Date.
"Non-Monetary Default" means any failure by Tenant to perform as required
by this Lease, other than a Monetary Default.
"North Parking Facility" means the parking facility to be constructed by
Tenant on the North Parking Parcel.
"North Parking Parcel" is defined in the recitals of this Lease.
"Notice" means any notice, demand, request, election, designation, or
consent, including any of the foregoing relating to a Default or alleged
default, that is permitted, required or desired to be given by either party in
connection with this Lease. Notices shall be delivered, and shall become
effective, only in accordance with Article XXXVI.
"Notice of Default" means any Notice from one party to the other claiming
or giving Notice of a Default or alleged Default by the recipient and stating
the nature of such Default with particularity.
"Opening Date" means the first date on which the Riverboat Casino is open
to the public and has commenced doing business.
"Parish" means each of Bossier and Caddo Parish, Louisiana.
"Parking Facilities" means any area for parking motor vehicles located on
the Premises.
"Parking Facilities Net Income" shall mean all Parking Revenue less all
direct costs and expenses associated with maintaining and operating the Parking
Facilities, including but not limited to, all labor costs; maintenance and
repair costs; insurance costs; and uninsured liabilities and direct costs
incurred by Tenant in association with maintaining and operating the Parking
Facilities.
"Parking Income Credit" means: (a) with respect to any Fiscal Month during
the Initial Term, the amount, if any, by which $29,166 exceeds 50% of the
Parking Facilities Net Income for such Fiscal Month; and (b) with respect to any
Fiscal Month during any Renewal Term, the amount, if any, by which one-twelfth
of the then-applicable annual Fixed Rent exceeds 50% of the Parking Facilities
Net Income for such Fiscal Month.
"Parking Revenue" means revenue derived from the rental of parking space in
the Parking Facilities, but excluding any rent derived under any Sublease which
might be attributable to any parking spaces provided to the Subtenant thereunder
by the Tenant as sublessor.
"Pavilion/Hotel Parcel" is defined in the recitals of this Lease.
9
"Payment Year" means a twelve-month period commencing on the first day of
the first month after any Riverboat Casino berthed at the Premises is open to
the public for business.
"Percentage Rent" shall have the meaning set forth in Section 5.04.
"Permitted Exception" shall have the meaning set forth in Article I.
"Permitted Hotel Construction Period" means the period of time which Tenant
is afforded by the LGBC after the commencement of construction of the Hotel to
achieve substantial completion of the Hotel, as such period of time may be
extended, amended, modified or supplemented from time to time, one or more
times.
"Premises" is defined in the recitals of this Lease.
"Prime Rate" means the prime rate or equivalent "base" or "reference" rate
for corporate loans: (a) announced from time to time by Citibank, N.A., New
York, New York; or (b) if such rate is no longer so published or announced, then
a reasonably equivalent rate generally recognized as the New York Prime Rate, as
such term is commonly understood, or as may be mutually agreed by Tenant and
Landlord. Notwithstanding anything to the contrary in this Lease, the Prime Rate
shall never exceed the highest rate of interest legally permitted to be charged
in transactions of the character of this Lease between parties of a character
similar to Landlord and Tenant.
"Prohibited Lien" means any mechanic's, vendor's, laborer's or material
supplier's statutory lien or other similar lien arising by reason of work,
labor, services, equipment or materials supplied, or claimed to have been
supplied, to Tenant, which lien either: (a) is filed against the Fee Estate or
(b) is filed against the Leasehold Estate and, upon termination of this Lease,
would under the law of the State attach to the Fee Estate. Notwithstanding
anything to the contrary in this Lease, an Equipment Lien shall not constitute a
Prohibited Lien and nothing in this Lease shall prohibit Tenant from creating,
or require Tenant to remove, any Equipment Lien.
"Prohibited Person" means a person or entity (or any person directly or
indirectly affiliated with such person or entity) that, in the reasonable
judgement of Tenant: (i) would or could, if such person or entity owned an
interest in the Fee Estate, endanger any gaming license held by Tenant or any
Affiliate of Tenant; (ii) is in the business of issuing licenses or franchises
for hotels or operating or managing hotels under brand names owned or controlled
by such person or entity or an Affiliate of such person or entity; or (iii) is
in the gaming or casino business.
"Promotional Allowances" means "Promotional Allowances" as defined in the
Uniform System of Accounts for the Lodging Industry, Ninth revised edition, and
includes, but is not limited to, the following: rooms, food, beverage, travel
and other amenities provided free of charge as an incentive to xxxxxx at the
Riverboat Casino.
"Qualified Arbitrator" means one of the following: (a) a reputable and
generally recognized consulting or accounting firm specializing in real estate
or the casino industry, such as Xxxxxx
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Xxxxxxxx & Company; or (b) an appraiser (who shall be an M.A.I. of the American
Institute of Real Estate Appraisers or equivalent) or an attorney, either
having at least ten years' experience in commercial real estate transactions in
either Parish.
"Relocation Costs" is defined in Section 4.14.
"Renewal Option" is defined in Section 3.01(b).
"Renewal Term" is defined in Section 3.01(b).
"Rent" means Construction Period Rent, Percentage Rent, Fixed Rent and
Additional Rent.
"Riverboat Casino" means a riverboat licensed to Tenant and regulated
under the provisions of the Louisiana Riverboat Economic Development and Gaming
Control Act, as amended from time to time.
"Room Rate Supplement" means, with respect to any Hotel room, for any
period, the amount, if any, by which the product of the Minimum Room Rate for
such room and the number of days that such room was actually occupied during
such period exceeds the sum of the actual room rents charged to occupants of
such room during such period.
"Shoreside Complex" is defined in the recitals of this Lease.
"Sodak" means Sodak Louisiana, L.L.C.
"South Parking Facility" means the parking facility to be constructed on
the South Parking Parcel.
"South Parking Parcel" is defined in the recitals of this Lease.
"State" means the State of Louisiana.
"Sublease" means any sublease of the Premises or any part of the Premises,
or any other agreement or arrangement (including, but not limited to, a license
or concession agreement) made by Tenant granting any third party the right to
occupy, use or possess any portion of the Premises in exchange for rent or other
monetary payments to Tenant. The term "Sublease" shall not include any
management agreement wherein the party to the agreement other than Tenant is
paid a fee by Tenant to manage facilities located upon the Premises as the agent
for or on behalf of Tenant.
"Substantial Condemnation" means any Condemnation that, in Tenant's
reasonable judgment, renders the remaining portion of the Premises unusable for
its original purpose. Tenant may waive its right to treat as a Substantial
Condemnation any Condemnation that would otherwise qualify as such.
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"Subtenant" means any person having rights of occupancy, use or possession
under a Sublease.
"Temporary Condemnation" means a Condemnation relating to the temporary
right to use or occupy the Premises or any part of the Premises.
"Tenant" means QNOV and its successors and assigns hereunder as tenant
under this Lease.
"Tenant's Monthly Statement" means a statement of Adjusted Gross Revenue of
the Shoreside Complex and any Riverboat Casino operated by Tenant and berthed at
the Premises and Parking Facilities Net Income for each Fiscal Month, in
reasonable detail with applicable revenues and expenses from operations shown
separately by category of operation, which statement shall generally be in the
format of Exhibit "D" attached hereto and made a part thereof.
"Term" is defined in Section 3.01(b).
"Termination Date" means the date when this Lease terminates or expires.
"Texas Street Parcel" is defined in the recitals of this Lease.
"Traffic Study" is defined in Section 4.11.
"Unavoidable Delay" means delay in performance of any obligation arising
from or on account of any cause whatsoever beyond the reasonable control of the
person required or entitled to perform, including strikes, labor troubles,
litigation (other than litigation initiated by Tenant), Casualty, Condemnation,
accidents, Laws, governmental preemption, failure or refusal of a governmental
body to issue a required permit or license, war, riots, and other causes beyond
such party's reasonable control, whether similar or dissimilar to the causes
specifically enumerated in this paragraph, notwithstanding reasonable efforts to
mitigate such cause of delay. In no event shall Unavoidable Delay be deemed to
include any delay caused by a person's financial condition.
A fact, circumstance, or event shall render the operation of the Premises,
the Shoreside Complex or a Riverboat "Uneconomic" if such fact, circumstance or
event does or would, in the reasonable judgment of Tenant or the owner of such
Riverboat, as the case may be: (a) cause the Premises, the Shoreside Complex or
such Riverboat to be in violation of Law; or (b) cause further development,
construction, restoration or operation of the Premises, the Shoreside Complex or
such Riverboat to be impracticable or commercially unreasonable.
"Waiver of Subrogation" means a provision in, or endorsement to, any
insurance policy required by this Lease, by which the insurance carrier agrees
to waive all rights of recovery by way of subrogation against either party to
this Lease in connection with any loss covered by such insurance policy.
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ARTICLE III - TERM
3.01 INITIAL TERM AND RENEWAL TERM(S).
(a) INITIAL TERM. The Initial Term (the "Initial Term") of this Lease
shall begin on the Construction Commencement Date and shall continue until
the tenth anniversary of the Opening Date, unless terminated sooner in
accordance with the provisions of this Lease, provided, however, Tenant
shall be afforded access to the Premises for the purpose of undertaking due
diligence with respect to the Premises and other pre-construction
activities commencing on the Commencement Date and ending at 11:59 p.m.
local time on the date immediately preceding the Construction Commencement
Date. Tenant shall act in good faith to minimize disruption of the uses of
the Premises prior to the Construction Commencement Date.
(b) RENEWAL TERMS. Tenant shall have the absolute and unconditional
right and option (each such right and option, a "Renewal Option") to extend
and renew this Lease upon the same terms and conditions as this Lease, for
seven additional successive periods of five years each and an eighth
additional successive period ending on the last day of the month that
includes the fiftieth anniversary of the Opening Date (the "Renewal Terms")
following the expiration of the Initial Term. Wherever this Lease refers to
the "Term," such reference shall be deemed to mean the Initial Term, as
extended from time to time pursuant to Tenant's Renewal Options to include
one or more Renewal Terms, so that upon Tenant's exercise of any Renewal
Option, the "Term" shall be redefined and extended to include the
corresponding Renewal Term arising pursuant to such Renewal Option. Each
Renewal Term shall commence immediately upon the expiration of the Initial
Term or the preceding Renewal Term, as the case may be, and except as
otherwise provided herein, shall expire at the end of the last day before
the day that is the fifth anniversary of the day on which such Renewal Term
commenced. At the expiration or termination of the final Renewal Term
provided for herein, Tenant shall have the right to extend this Lease under
the then prevailing market rates and terms for ground leases in the
Shreveport/Bossier City area to owners and/or operators of riverboat gaming
casinos. Tenant shall notify Landlord in writing at least ninety (90) days
prior to the expiration of the final Renewal Term of its desire to further
extend the term of this Lease upon the expiration or termination of the
final Renewal Term provided for herein. Upon the receipt of such Notice
from Tenant, Landlord and Tenant shall negotiate in good faith in an
attempt to agree upon the terms of, and rent to be paid during, any
extension of this Lease. If Landlord and Tenant are unable to agree upon
such terms and rent by the date which is forty-five (45) days prior to the
expiration or termination of the final Renewal Term provided for hereunder,
such terms and rent shall be decided by arbitration conducted in accordance
with Section 3.01(c) of this Lease. Any extension of this Lease shall be
limited to the extent required by applicable law.
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(c) ARBITRATION PROCEDURE.
(i) If the parties are required to arbitrate the terms and rent
applicable to an extension of this Lease subsequent to the final Renewal
Term provided for hereunder, then Landlord and Tenant may jointly appoint
an Arbitrator. Such Arbitrator shall render his decision within fifteen
(15) days of such appointment.
(ii) If Landlord and Tenant do not make such a joint appointment
by the date which is thirty-five (35) days prior to the expiration of the
final Renewal Term hereunder, then each party shall appoint one Arbitrator
by the date which is thirty (30) days prior to the expiration of the final
Renewal Term hereunder. Each such Arbitrator shall be an individual who:
(A) is not otherwise employed by and is not otherwise a creditor of either
party; and (B) has at least five years of experience in valuing leasehold
interests in hotels and riverboat casino/gaming complexes. The two
appointed Arbitrators shall meet within ten (10) days of such referral and
shall appoint a third Arbitrator, and if such Arbitrators are not able to
agree on such third Arbitrator within such time, then, on five (5) days'
Notice in writing to the other Arbitrator, either Arbitrator shall apply to
the branch of the American Arbitration Association in Shreveport, Louisiana
to designate and appoint such third Arbitrator. The three Arbitrators
shall render their decision within ten (10) days after the appointment of
the third Arbitrator. The Arbitrators shall act by majority vote. If the
Arbitrators fail to render their decision within such time, either party
may seek an order from a court of competent jurisdiction in the State: (x)
requiring such Arbitrators to render their decision immediately, or (y)
appointing one replacement Arbitrator of equivalent qualifications and
directing such Arbitrator to render his decision.
(iii) If either party fails timely to appoint an Arbitrator,
then the single Arbitrator designated by the other party shall act as the
sole Arbitrator and shall be deemed to be the unanimously approved
Arbitrator to resolve such dispute.
(iv) The fees and expenses of the Arbitrators shall be shared
equally by Landlord and Tenant. All Arbitrators, by accepting appointment,
submit to the jurisdiction of the courts of the State.
(v) All proceedings by the Arbitrators shall be conducted in
accordance with the Louisiana Arbitration Law (La. R.S. 9:4201 et seq.),
except to the extent the provisions of such law are modified by this Lease
or the mutual agreement of the parties. Unless otherwise agreed, all
arbitration proceedings shall be conducted in Shreveport, Louisiana, at the
offices of Landlord or Tenant.
3.02 DEEMED EXERCISE OF RENEWAL OPTIONS. Tenant shall be deemed to have
exercised each Renewal Option automatically unless Tenant has elected not to
exercise such Renewal Option by giving Landlord Notice to such effect at least
one hundred eighty (180) days before the date on which such Renewal Option
otherwise would commence. If Tenant properly gives Notice that Tenant elects
not to exercise any Renewal Option, then this Lease shall terminate and expire
upon
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the expiration or termination of the then Term, and Tenant shall not be
permitted to exercise any subsequent Renewal Option.
3.03 DEFAULT BY TENANT. Tenant's Renewal Options shall remain effective
notwithstanding Tenant's Default, unless and until Tenant's cure periods shall
have expired without cure of such Default, and Landlord has lawfully terminated
this Lease. Provided that this Lease has not been lawfully terminated, there
shall be no conditions (express or implied) to Tenant's exercise of any Renewal
Option(s). The exercise of any Renewal Option shall not impair any rights or
remedies of Landlord with respect to any Default occurring before such exercise.
3.04 TERMINATION DURING INITIAL TERM. If construction of the Shoreside
Complex has not commenced by the Construction Trigger Date, then Landlord may
elect to terminate this Lease by giving Notice of such election to Tenant within
thirty (30) days after the Construction Trigger Date. If Landlord does not give
such Notice within such time, then Landlord's right to make such election shall
thereupon expire. Construction of the Hotel shall be completed prior to the
expiration of the Permitted Hotel Construction Period. If substantial
completion of the Hotel has not been achieved prior to the expiration of the
Permitted Hotel Construction Period, Landlord may elect to terminate this Lease
as of the expiration of the Permitted Hotel Construction Period by giving Notice
of such election to Tenant within thirty (30) days from the expiration of the
Permitted Hotel Construction Period. If Landlord does not give such Notice
within such time, Landlord's right to make such election shall thereupon expire.
If Landlord elects to terminate this Lease pursuant to its right to do so under
this Section 3.04, then, if requested to do so by Landlord in Landlord's Notice
of termination, Tenant shall (i) remove all improvements located upon the
Premises and placed there by Tenant and (ii) return the Premises to its
approximate condition on the Construction Commencement Date.
3.05 CONFIRMATION OF DATES. If Landlord and Tenant disagree as to any
date relevant to the calculation of Rent or to the determination of the Term
(including the expiration date of each Renewal Term when and as the
corresponding Renewal Option shall have been exercised or deemed exercised),
then Tenant may pay Rent and otherwise perform under this Lease based on
Tenant's own determination of such date unless and until such date is otherwise
determined by the final judgment of a court of competent jurisdiction. To the
extent that any such court accepts Landlord's position and rejects Tenant's
position, Tenant shall within five (5) Business Days remit to Landlord an amount
equal to any previous underpayments of Rent made because of Tenant's
determination of such date, together with interest on the underpayment at the
Prime Rate, plus two percent (2%) from the date the underpayment was originally
due under this Lease to the date of payment.
3.06 TERMINATION BY TENANT.
(a) CESSATION OF OPERATIONS. Tenant shall have the right to cease
operations of the Shoreside Complex or any Riverboat Casino operated by
Tenant to the extent necessary, in the commercially reasonable judgment of
Tenant, to maintain, repair, renovate, replace, substitute for, or expand
such properties provided that such cessation shall not terminate this Lease
or affect Tenant's obligation to pay rent hereunder and Tenant shall use
its best efforts
15
to expedite completion of such matters and restore operations. If
operations of the Shoreside Complex or any Riverboat Casino operated by
Tenant shall become Uneconomic, then Tenant may cease operations of such
facility and, in the case of such a cessation of operations of such a
Riverboat Casino, Fixed Rent shall thereafter neither accrue nor be
payable. If operations of the Shoreside Complex or any Riverboat Casino
operated by Tenant shall all become Uneconomic, Tenant shall have the
right, upon thirty (30) days' Notice to Landlord, to terminate this Lease,
provided that Tenant delivers possession of the Premises to Landlord free
and clear of any Leasehold Mortgage liens or other security interests
(unless incurred by Landlord).
(b) CHANGE OF LAW. Anything in this Lease to the contrary
notwithstanding, if gaming on Riverboat Casinos berthed at the Premises
shall become unlawful due to a change in law, then Tenant may elect to
terminate this Lease by giving Notice of such election to Landlord not more
than ninety (90) days after such gaming has become unlawful. If Tenant
does not so elect to terminate this Lease, then this Lease shall continue
in accordance with its terms; provided however, that from and after the
date that gaming has become unlawful, Fixed Rent shall not accrue or be
payable.
(c) LOSS OF LICENSE. Anything in this Lease to the contrary
notwithstanding, if Tenant's riverboat gaming license issued by the LGCB
shall be rescinded, voided or not renewed for any reason whatsoever ( a
"Loss of License"), then Tenant may elect to terminate this Lease by giving
Notice of such election to Landlord not more than ninety (90) days after
such Loss of License. If Tenant does not so elect to terminate this Lease,
then this Lease shall continue in accordance with its terms; provided
however, that from and after the date of such Loss of License, Fixed Rent
shall not accrue or be payable.
(d) UNECONOMIC OPERATIONS. Any Notice by Tenant terminating this
Lease because operation of the Premises, the Shoreside Complex or any
Riverboat Casino operated by Tenant has become Uneconomic shall include a
reasonably detailed explanation of Tenant's determination that such
operation has become Uneconomic.
ARTICLE IV - DEVELOPMENT AND CONSTRUCTION
4.01 CONSTRUCTION. The Hotel shall have not less than 300 separate
rentable rooms. Tenant may, at any time during the Term, add additional hotel
rooms based upon its analysis of competitive market conditions. At Tenant's
option, the Hotel and its related facilities may include guest and valet parking
facilities. The Hotel and the remainder of the Shoreside Complex may be
physically connected. The footprint of that portion of the Shoreside Complex
bounded to the West by Xxxxx X. Xxxx Memorial Parkway and the East by the Red
River may extend to the line made by the east curb of Xxxxx X. Xxxx Memorial
Parkway as located as of the Commencement Date. During construction of the
Shoreside Complex, Landlord shall permit the closure, and assist Tenant in
obtaining any permits and consents necessary to close, portions of (i) Xxxxx X.
Xxxx Memorial Parkway adjacent to the Premises, (ii) Texas Street under the
Texas Street Bridge and (iii) Xxxxx Street from Commerce Street to Xxxxx X. Xxxx
Memorial Parkway.
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4.02 STANDARDS FOR CONSTRUCTION OF SHORESIDE COMPLEX. Tenant shall
cause the Shoreside Complex to be constructed substantially in accordance with
the Design Development Documents approved by the Design Development Committee
and shall cause the Shoreside Complex to be constructed in compliance with all
applicable building codes, laws, ordinances and regulations. The Hotel also
shall satisfy the criteria for receiving an American Automobile Association
Three Diamond rating as described in Lodging Listing Requirements & Diamond
Rating Guidelines (Revised June 1996) published by American Automobile
Association. Tenant shall obtain and pay for all permits and approvals required
by Law in order for Tenant to construct the Shoreside Complex, and approval by
Landlord for purposes of this Lease shall not be deemed approval by any
department or agency of the City of Shreveport charged with the enforcement of
building codes or the issuance of building permits. Landlord agrees and
acknowledges that portions of the Shoreside Complex and related facilities may
be physically connected and integrated at the boundary between the parcels
comprising the Premises. Landlord represents that, as of the Commencement Date,
the required set backs, side yards, front yards, back yards, floor area ratio
restrictions, limitations on number and size of signage and height applicable to
the Premises, as set forth in the Comprehensive Zoning Ordinance for the City of
Shreveport, are as set forth on Exhibit "H" attached hereto and made a part
hereof.
4.03 REVIEW BY DESIGN REVIEW COMMITTEE.
(a) Tenant shall submit (i) copies of the Design Development
Documents, (ii) information relative to the Hotel concerning space
allocation on a floor by floor basis, (iii) conceptional floor plans for
the Hotel showing conceptual exterior elevations, (iv) a conceptual theme
for Hotel furniture, fixtures and equipment, and (v) the estimated
construction cost of the Hotel, including the estimated cost per room for
the Hotel's shell and furniture, fixtures and equipment, to the Landlord
within two hundred seventy (270) days after the Commencement Date, and
Landlord shall ensure that copies of the Design Development Documents and
the other information submitted are forwarded to all members of the Design
Review Committee. If such documents and information, or any subsequent
revisions submitted hereunder, are rejected, as provided in Section
4.03(b), then, unless Tenant elects arbitration of such rejection under
Section 4.04, Tenant shall submit Design Development Documents and related
information revised in response to such rejection within ninety (90) days
after Landlord gives Tenant Notice of such rejection.
(b) The Design Review Committee shall give Tenant Notice that it
approves or rejects documents and information submitted under Section
4.03(a) within twenty-one (21) days after they are submitted to the
Landlord. A Notice of rejection shall include a reasonably detailed
explanation of the basis of such rejection and specific modifications of
such documents and/or information that, if made, would cause such documents
and information to be approved. If the Design Review Committee does not
give a Notice of rejection within such twenty-one (21) day period, then
such documents and information shall be deemed approved by the Design
Review Committee.
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4.04 ARBITRATION.
(a) REJECTION OF DOCUMENTS. If Landlord rejects the Design
Development Documents and related information, then Tenant may elect to
arbitrate such rejection under the provisions of this Section 4.04 by
giving Notice of such election within thirty (30) days after receiving
Notice of such rejection. If Tenant does not give Notice of such election
within such 30-day period, then Landlord's rejection shall become final and
conclusive.
(b) ARBITRATION PROCEDURE.
(i) If either party gives Notice that it elects arbitration under
this Section 4.04, then Landlord and Tenant may jointly appoint an
Arbitrator. Such Arbitrator shall render his decision within fifteen (15)
days of such appointment.
(ii) If Landlord and Tenant do not make such a joint appointment
within ten (10) days after such Notice is given, then each party shall
appoint one Arbitrator within five (5) after the expiration of such 10-day
period. Each such Arbitrator shall be an individual who: (A) is not
otherwise employed by and is not otherwise a creditor of either party; and
(B) has at least five years of experience in the design, construction,
management and operation of hotels and riverboat casino/gaming complexes.
The two appointed Arbitrators shall meet within ten days of such referral
and shall appoint a third Arbitrator, and if such Arbitrators are not able
to agree on such third Arbitrator within such time, then, on five days'
Notice in writing to the other Arbitrator, either Arbitrator shall apply to
the branch of the American Arbitration Association in Shreveport, Louisiana
to designate and appoint such third Arbitrator. The three Arbitrators
shall render their decision within ten (10) days after the appointment of
the third Arbitrator. The Arbitrators shall act by majority vote. If the
Arbitrators fail to render their decision within such time, either party
may seek an order from a court of competent jurisdiction in the State: (x)
requiring such Arbitrators to render their decision immediately, or (y)
appointing one replacement Arbitrator of equivalent qualifications and
directing such Arbitrator to render his decision.
(iii) If either party fails timely to appoint an Arbitrator,
then the single Arbitrator designated by the other party shall act as the
sole Arbitrator and shall be deemed to be the unanimously approved
Arbitrator to resolve such dispute.
(iv) The fees and expenses of the Arbitrators shall be paid by
the party whose position is not adopted by the Arbitrators. All
Arbitrators, by accepting appointment, submit to the jurisdiction of the
courts of the State.
(v) All proceedings by the Arbitrators shall be conducted in
accordance with the Louisiana Arbitration Law (La. R.S. 9:4201 et seq.),
except to the extent the provisions of such law are modified by this Lease
or the mutual agreement of the parties. Unless otherwise agreed, all
arbitration proceedings shall be conducted in Shreveport, Louisiana, at the
offices of Landlord or Tenant.
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(vi) The decision of the Arbitrators with respect to a rejection
of documents and related information shall be either that such rejection is
reasonable or that such rejection is unreasonable. If the decision of the
Arbitrators is that such rejection is unreasonable, then the documents and
related formation covered by such rejection shall be deemed approved by the
Design Review Committee. No rejection shall be determined to be reasonable
if the modifications specified in the Notice of such rejection would cause
an increase in the cost of the Shoreside Complex that, together with the
costs of any previous modifications specified by the Design Review
Committee and made by Tenant, exceeds $250,000 in the aggregate. The
decision of the Arbitrators with respect to a denial of a request for time
shall be either that such denial is reasonable or that such denial is
unreasonable. If the decision of the Arbitrators is that such denial is
unreasonable, then such request shall be deemed granted. The Arbitrators
shall exclusively and finally determine whether a particular dispute falls
within the scope of their authority unless such determination is legally
groundless or in excess of the limitations provided in this Agreement. Any
decision of Arbitrators made in accordance with this Section 4.04 shall be
binding on the parties and enforceable in any court of competent
jurisdiction.
4.05 SIDEWALKS. Tenant shall construct and maintain sidewalks within
the Premises adjacent to Xxxxx X. Xxxx Memorial Parkway. Tenant shall not be
required to maintain a continuous pedestrian riverwalk between the Shoreside
Complex and the Red River or at any other location, provided Tenant shall
construct and maintain a continuous walkway running in an east-west direction
connecting the walkway along the Red River and running on the Eastern edge of
the Expansion Parcel with the walkway East of and adjacent to Xxxxx X. Xxxx
Memorial Parkway and running on the Western edge of the Expansion Parcel, as
each such walkway is located on the Commencement Date.
4.06 ELEVATED WALKWAYS. Tenant shall construct an Elevated
Walkway over Xxxxx X. Xxxx Memorial Parkway between the Pavillion/Hotel Parcel
and the North Parking Parcel. In Tenant's sole discretion, Tenant also may
elect to construct Elevated Walkway(s) over any other portions of the Elevated
Walkway Spaces. In the event Tenant is required or elects to construct any
Elevated Walkway, Landlord, in its capacity as lessor under this Lease, agrees
and acknowledges that it will assist Tenant in obtaining and/or granting any
permits and consents necessary to construct such Elevated Walkway.
4.07 COOPERATION BY LANDLORD. Upon Tenant's request, Landlord shall,
without cost to Landlord, promptly join in and execute any instruments
including, but not limited to, applications for building permits, demolition
permits, alteration permits, appropriate consents, zoning, rezoning or use
approvals, amendments and variances, easements, servitudes, encumbrances, and/or
liens (excluding Mortgages) against the Premises (Fee Estate and Leasehold
Estate), and such other instruments as Tenant may from time to time request to
enable Tenant from time to time to use, develop, improve, and construct
improvements on the Premises in accordance with this Lease, provided each of the
foregoing is in reasonable and customary form and does not cause the Fee Estate
to be encumbered as security for any obligation and does not otherwise expose
the Fee Estate
19
to any material risk of forfeiture during the Term. Tenant shall indemnify
Landlord for any liability arising by reason of any such joinder or execution.
It is agreed that the joinder by Landlord in any application filed by Tenant
under the preceding sentence (i) shall not limit or otherwise affect the review
of such application by the City of Shreveport or any agency or department of the
City of Shreveport charged with responsibility for such review, and (ii) shall
not imply or guarantee that such application will be approved by the City of
Shreveport, or its agencies or departments, acting in their public or police
power capacity. Tenant shall reimburse Landlord's reasonable attorneys' fees
incurred by Landlord in performing under this Section 4.07. Landlord agrees not
to oppose or object to any applications filed by Tenant with any Government in
connection with the development, operation or alteration of any improvements
located on the Premises, subject to Landlord's review and approval rights set
forth in Section 4.03.
4.08 TITLE TO PERSONAL PROPERTY. Notwithstanding anything to the
contrary in this Lease, all personal property located in, on or at the Premises
or otherwise constituting part of the Premises shall at all times during and
after the Term be owned by, and shall belong to, Tenant or a Subtenant. Tenant
or such Subtenant shall have title to the foregoing throughout and after the
Term. All the benefits and burdens of ownership of the foregoing shall be and
remain in Tenant or such Subtenant during and after the Term. The provisions of
this Section 4.08 shall be without prejudice to the rights of Landlord to
enforce its lessor's privilege as to such personal property.
4.09 EQUIPMENT LIENS. If at any time or from time to time Tenant desires to
enter into or grant any Equipment Liens, then upon Tenant's request, Landlord
shall enter into such customary documentation with respect to the property
leased or otherwise financed pursuant to such Equipment Liens as Tenant shall
request, providing for matters such as the following: (a) Landlord's waiver of
the right to take possession of such property upon occurrence of an Event of
Default; and (b) customary agreements by Landlord to enable the secured party to
repossess such property in the event of a default by Tenant permitting such
secured party to exercise remedies under its Equipment Lien.
4.10 RIVERBOAT CASINOS. Notwithstanding anything in this Lease to the
contrary, any Riverboat Casinos berthed at the Premises shall at all times
during and after the Term be (a) owned by and belong to Tenant or a Subtenant or
(b) leased by Tenant or a Subtenant. At no time shall any Riverboat Casino be
considered property of Landlord, and Landlord shall have no right, title or
interest, including any lessor's lien, in any Riverboat Casino. All benefits
and burdens of ownership of any Riverboat Casino berthed at the Premises (except
for Landlord's right to a percentage of the revenues generated by such Riverboat
Casino pursuant to Section 5.03) shall be and remain with Tenant or a Subtenant.
Tenant and any Subtenant shall have the unrestricted right to obtain financing
by granting lenders a mortgage or security interest in: (i) any Riverboat Casino
that it owns or leases; (ii) the equipment and supplies located on such
Riverboat Casino; and (iii) the income and revenues generated by such Riverboat
Casino, except any interest in such income and revenue shall be subject to
Landlord's right to receive Rent.
4.11 TRAFFIC STUDY. Landlord shall reimburse Tenant for one-third (1/3)
of the cost of the traffic study prepared by Xxxxxx Xxxxx Associates, Inc. for
HWCC attached as Exhibit "I" (the "Traffic Study"). The Landlord shall enact
ordinances to accomplish, and pay all cost and expense
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related to effect, the installation of traffic signals and other proposals made
by the traffic engineer in the Traffic Study, as well as the following traffic
changes:
(a) Modification of Xxxxxx Street to accommodate two lanes of
westbound traffic and one lane of eastbound traffic between Xxxxx
X. Xxxx, Memorial Parkway and Market Street;
(b) Reversing traffic on Xxxxxxxx and Xxxxx Street;
(c) Installation of traffic signals at specified intersections on
Xxxxx Xxxxxx, Xxxxxx Xxxxxx and such other streets as may be
mutually agreed to by Landlord and Tenant to facilitate access to
the Premises; and
(d) Installation of directional signage on Spring Street and such
other streets as may be mutually agreed to by the Landlord and
the Tenant to facilitate access to the Premises.
The Tenant acknowledges that traffic patterns and the means by which to
address the same may change from time to time during the term of this Lease, and
the Tenant agrees to cooperate in the change of any traffic plan so long as the
objective is to facilitate traffic flow to and from the Premises.
4.12 UTILITIES. Landlord covenants that as of the Commencement Date and at
all times during the Term, all necessary utilities have been and will continue
to be delivered to the lot lines of each of the Pavilion/Hotel Parcel, the
Expansion Parcel, the North Parking Parcel and the South Parking Parcel.
4.13 STAGING AREA. Landlord hereby agrees to use its best efforts to help
Tenant locate an adequate staging area to use during the construction of the
Shoreside Complex for storage and other construction purposes. Landlord and
Tenant shall first attempt to identify one or more properties as being adequate
for staging purposes which are owned by Landlord. In the event one or more such
properties are identified, Landlord agrees to grant to Tenant a servitude of use
for staging purposes over such property or properties, as applicable, on terms
mutually agreeable to each of Landlord and Tenant. No payments shall be due to
Landlord in consideration for such servitude, Landlord hereby agreeing that
Tenant's execution and delivery of this Lease is adequate and sufficient
consideration for any such servitude. In the event that Landlord and Tenant are
unable to locate property owned by Landlord which is adequate for Tenant's
staging needs, Landlord and Tenant shall endeavor, and cooperate with each
other, to locate other suitable property or properties for such purpose.
4.14 SWEPCO RELOCATION UNDER THE PREMISES. Landlord shall reimburse
Tenant, on demand, for all costs and expenses (the "Relocation Costs") incurred
by Tenant in connection with the relocation of underground power lines and
related facilities located within the Premises on the Commencement Date. In
lieu of seeking reimbursement for the Relocation Costs, Tenant, at its sole
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option, shall have the right to a credit against Rent due and payable to
Landlord on or after the Opening Date in an amount equal to the aggregate
Relocation Costs incurred by Tenant. Landlord agrees to cooperate with Tenant
in connection with the relocation of the aforesaid power lines and related
facilities and to execute and deliver such documents, instruments, servitudes,
agreements and other writing as may be reasonably requested by the relocating
utility company in order to effect such relocation. Landlord agrees that the
work to relocate the aforesaid power lines and related facilities will commence
after the Construction Commencement Date and Landlord agrees to take no action
to cause the removal of such power liens and related facilities prior to that
date.
ARTICLE V - RENT
5.01 MEANS OF PAYMENT. Tenant shall pay all Rent payable to Landlord by
either of the following, at Tenant's election, which election Tenant may change
from time to time by at least thirty (30) days' Notice to Landlord: (a) good and
sufficient check (subject to collection) delivered to Landlord or (b) wire
transfer to Landlord's bank account, which Landlord shall identify to Tenant
upon request (and Landlord shall have the right to change from time to time by
at least thirty (30) days' Notice to Tenant).
5.02 RENT PRIOR TO CONSTRUCTION COMMENCEMENT DATE. Prior to the
Construction Commencement Date, no Rent shall be due hereunder notwithstanding
the fact that Tenant shall have access to the Premises prior to such date for
the purposes set forth in Section 3.01(a) hereof. Commencing on the
Construction Commencement Date and continuing through and including the date
immediately preceding the Opening Date (the "Construction Period"), Tenant shall
pay construction period rent ("Construction Period Rent") at the rate of $10,000
per Fiscal Month. Construction Period Rent for partial Fiscal Months at the
beginning or end of the Construction Period shall be prorated based on the
number of days in such Fiscal Month within the Construction Period divided by
the number of days in the entire Fiscal Month.
5.03 FIXED RENT.
(a) AMOUNT OF PAYMENT. Beginning on the Opening Date, and continuing
through the remainder of the Initial Term, Tenant shall pay fixed rent
("Fixed Rent") at the rate of $450,000 per Fiscal Year. Beginning on the
first day of the first Renewal Term, Tenant shall pay Fixed Rent at the
rate of $402,500 per Fiscal Year. Fixed Rent for each of the second
through the fifth Renewal Terms shall be equal to 115% of the Fixed Rent
for the preceding Renewal Term. Fixed Rent for each Renewal Term after the
fifth Renewal Term shall be paid at the rate applicable to the fifth
Renewal Term.
(b) MONTHLY PAYMENTS AND PRORATION OF FIXED RENT. Tenant shall pay
Fixed Rent in equal monthly installments in advance on or before the first
day of each Fiscal Month. Rent for partial Fiscal Months at the beginning
or end of the Term shall be prorated based on days in such Fiscal Month
within the Term divided by days in the entire Fiscal Month.
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5.04 PERCENTAGE RENT. Beginning with the Opening Date and continuing
throughout the entire remaining Term, Tenant shall pay Landlord percentage rent
(the "Percentage Rent") for each Fiscal Month equal to the sum of: (a) 1% of
Adjusted Gross Revenue for such Fiscal Month; and (b) the amount, if any, by
which 50% of the Parking Facilities Net Income for such Fiscal Month exceeds the
Parking Income Credit for such Fiscal Month. Subject to Section 3.06 hereof,
Tenant shall conduct gaming operations (including the restoration of gaming
operations after the cessation of same) throughout the Term in accordance with
the terms of this Lease and in a commercially reasonable manner.
5.05 REPORTING AND PAYMENT. Tenant shall deliver to Landlord Tenant's
Monthly Statement within twenty (20) days after the end of each Fiscal Month
after the Opening Date. Tenant shall pay any Percentage Rent due based on
Tenant's Monthly Statement within twenty (20) days after the end of the Fiscal
Month covered by Tenant's Monthly Statement.
5.06 ACCOUNTING RECORDS. Tenant shall maintain (at the Premises
or at a central accounting location identified to Landlord upon request) account
records and procedures complying with Accounting Principles to enable Landlord
to calculate any Percentage Rent or other amounts due under this Lease. Tenant
shall permit an audit by Landlord or its designated representative of all of its
books and records relative to this Lease at any time upon such notice as may be
specified in the request to audit. If Tenant shall at any time be located
outside of the Parish, in the event of an audit by Landlord, Tenant shall
deliver its books and records, or have such books and records delivered, to the
designated representative of Landlord at an address designated by Landlord
within the City of Shreveport. If the designated representative of the Landlord
finds the books and records delivered to be incomplete, Tenant shall pay the
costs of the designated representative of Landlord to travel to Tenant's offices
to audit or retrieve the complete books and records of Tenant relative to this
Lease. Tenant shall preserve Tenant's books and records relating to each Fiscal
Year for at least three years after the end of such Fiscal Year. If at the
conclusion of such three-year period a dispute is pending between Landlord and
Tenant regarding the amount of Adjusted Gross Revenue for such Fiscal Year or
other amounts due under this Lease, then Tenant shall continue to preserve such
records pending the final disposition of such dispute. Notwithstanding the
foregoing, books and records of Tenant that are subject to audit findings shall
be retained for three years after such findings have been resolved.
5.07 ANNUAL AUDIT PROCEDURES. Within (and in no event later than) one
hundred eighty (180) days after the end of each Fiscal Year, Tenant, at Tenant's
expense, shall cause a certified public accountant designated by Tenant (and
approved by Landlord, such approval not to be unreasonably withheld), which CPA
shall be licensed in Louisiana, and a member of AICPA, to audit Tenant's (and/or
Subtenant's, licensee's or concessionaire's) books and records relevant to the
calculation of Rents and other payments reported by Tenant during the preceding
Fiscal Year. Landlord hereby approves Xxxxxx Xxxxxxxx & Co. as such certified
public accountant as long as such entity is licensed in Louisiana and is a
member of the AICPA. In connection with such audit, Tenant shall provide to the
auditor and to Landlord copies of all financial reports and tax returns
furnished to the State of Louisiana in connection with the determination of
Tenant's taxable gaming revenue. Further, Landlord shall have the right to audit
the books and records of Tenant with respect to all
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Rents or other payments provided for in this Lease at any time upon reasonable
Notice; provided, that Landlord agrees to exercise this special audit right not
more frequently than once per Fiscal Year. Any audit shall be performed in
accordance with generally accepted auditing standards, during ordinary business
hours and without unreasonably interfering with Tenant's business. If such audit
reveals that Adjusted Gross Revenue or other Rent was understated, then within
thirty (30) days after receipt of the audit with appropriate backup
documentation, Tenant shall pay the net additional Rent due on account of the
audit corrections. If such audit reveals that Adjusted Gross Revenue or other
Rent was overstated, then Tenant shall be entitled to a credit against the next
payment(s) of Rent under this Lease in an amount equal to the previous
overpayment revealed by the audit corrections. Any adjusting payment on account
of previous overpayment or underpayment shall bear interest at the Prime Rate
from the date it would have been paid (or the date of Tenant's previous
overpayment, if applicable) had Tenant's Annual Statement been correct until the
date actually paid or credited. If Rent was understated by more than 3% then
Tenant shall pay the reasonable cost of the special audit disclosing such
understatements; otherwise the special audit shall be conducted at Landlord's
expense.
5.08 CONFIDENTIALITY. To the extent permitted by Law, Landlord shall
preserve the confidentiality of all information obtained by Landlord relating to
Tenant's Adjusted Gross Revenue and financial statements, except in any
litigation or arbitration proceedings between the parties.
5.09 ADDITIONAL RENT. In addition to Construction Period Rent, Fixed Rent
and Percentage Rent, Tenant shall pay when due, as additional rent under this
Lease, all Additional Rent.
5.10 MINIMUM PERCENTAGE RENT. From the Opening Date until this Lease is
lawfully terminated, Tenant shall be unconditionally obligated to pay Landlord
minimum Percentage Rent of not less than $500,000 per annum in addition to any
portion of the Fixed Rent, provided that Tenant is able to operate a Riverboat
Casino, and/or collect business interruption insurance in respect of the non-
operation thereof covering not less than one hundred twenty (120) days in the
year for which the minimum Percentage Rent is claimed. In the event actual
Percentage Rent payments in any Fiscal Year with respect to which such minimum
Percentage Rent is payable by Tenant are less than $500,000, without considering
Fixed Rent, the difference shall be paid to Landlord within thirty (30) days
after the end of such Fiscal Year.
ARTICLE VI - ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS
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6.01 LANDLORD'S NET RETURN. The parties intend that this Lease shall
constitute a "net lease," so that Rent shall provide Landlord with "net" return
for the Term, free from any expenses or charges with respect to the Premises,
except as specifically provided in this Lease. Accordingly, Tenant shall pay as
Additional Rent and discharge, before failure to pay the same shall create a
material risk of forfeiture or give rise to a penalty, each and every item of
expense of every kind and nature whatsoever related to or arising from the
Premises or by reason of or in any manner connected with or arising from the
development, leasing, operation, management, maintenance, repair, use or
occupancy of the Premises or any portion of the Premises. Notwithstanding
anything to the contrary in this Lease, Tenant shall not be required to pay any
of the following: (a) principal, interest, or other charges payable under any
Fee Mortgage; (b) depreciation, amortization, brokerage commissions, financing
or refinancing costs, management fees or leasing expenses incurred by Landlord
with respect to the Fee Estate or the Premises; (c) consulting, overhead,
travel, legal, staff, and other similar costs incidental to Landlord's ownership
of the Premises, other than reasonable attorneys' fees incurred by Landlord and
payable by Tenant pursuant to express provisions of this Lease; (d) any costs
arising from or pursuant to any instrument or agreement affecting the Premises
that is not a Permitted Exception and to which Landlord is a party and Tenant is
not a party; and (e) any cost or expense arising directly or indirectly from any
conditions existing on, at or with respect to the Premises before the
Construction Commencement Date; and (f) any sales or other taxes assessed and
levied against Landlord's receipt of Rent hereunder (except where such taxes are
imposed, in whole or in part, in lieu of or in substitution for real estate
taxes, in which event same shall be paid by Tenant).
6.02 IMPOSITIONS. For any period commencing on the Construction
Commencement Date and thereafter during the Term (with daily proration for
periods partially within the foregoing period and partially outside the
foregoing period), and subject to Article XIII, Tenant shall pay and discharge,
before failure to pay the same shall create a material risk of forfeiture or
give rise to a penalty, all Impositions. Tenant shall also pay all interest and
penalties assessed by any Government on account of late payment of any
Imposition, unless such late payment was caused by Landlord's failure to remit
an Imposition (paid to Landlord by Tenant) in accordance with Tenant's
reasonable instructions or Landlord's failure to promptly forward Tenant a copy
of a tax xxxx received by Landlord, in which case Landlord shall pay such
interest and penalties.
6.03 ASSESSMENTS IN INSTALLMENTS. To the extent that may be permitted by
law, Tenant shall have the right to apply for conversion of any assessment to
cause it to be payable in installments. After such conversion, Tenant shall pay
and discharge only such installments of such assessments as shall become due and
payable commencing on the Construction Commencement Date and thereafter during
the Term.
6.04 COMBINED TAX LOTS. If, as of the Commencement Date, the
Premises are part of a tax lot (a "Combined Tax Lot") that includes any land or
improvements other than the Premises, then the parties shall diligently and
expeditiously cooperate (including by bringing such proceedings as may be
necessary), all at Landlord's expense, including Tenant's reasonable attorneys'
fees, to cause the Combined Tax Lot to be divided so that the Premises
(including the Fee Estate and the Leasehold Estate) shall be a single separate
tax lot that is no longer a Combined Tax Lot. Pending such
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division of the Combined Tax Lot: (a) each party shall promptly provide the
other with a copy of any tax xxxx received by such party relating to the
Combined Tax Lot; (b) Tenant shall pay a portion of the Impositions assessed
with respect to the Combined Tax Lot equal to the estimated assessment of the
Premises divided by the assessment of the Combined Tax Lot (except to the extent
that Tenant reasonably determines that a particular Imposition, other than real
estate taxes, is more appropriately allocated in some other way); (c) Landlord
shall pay all Impositions (and the items excluded from the definition of such
term by clauses "a" through "g" in such definition) with respect to the balance
of the Combined Tax Lot; (d) the estimated assessment for the Premises shall be
determined to the extent possible, based on preliminary information from the tax
assessment authorities and otherwise by Tenant, in consultation with Landlord
(and, in any event, when the assessment of the Premises has been determined the
parties shall make such adjusting payments (with interest at the Prime Rate) as
shall be appropriate to compensate for errors in the estimated payments
previously made); and (e) if either party fails to pay its share of taxes and
charges for the Combined Tax Lot before delinquency and such failure continues
for ten Business Days after Notice from the other party, then such other party
shall be entitled to pay the first party's unpaid Impositions with respect to
the Combined Tax Lot, and the first party shall promptly upon demand reimburse
the other party's advances made on the first party's account with interest at
the Prime Rate.
6.05 DIRECT PAYMENT BY LANDLORD. If any Imposition or other item of
Rent is required to be paid directly by Landlord, then: (a) Landlord appoints
Tenant as Landlord's attorney in fact for the purpose of making such payment;
and (b) if the person entitled to receive such payment refuses to accept it from
Tenant, then Tenant shall give Landlord Notice of such fact and shall remit
payment of such Imposition to Landlord in a timely manner accompanied by
reasonable instructions as to the further remittance of such payment. Landlord
shall with reasonable promptness comply with Tenant's reasonable instructions
and shall Indemnify Tenant against Landlord's failure to do so.
6.06 UTILITIES. Tenant shall pay all fuel, gas, light, power, water,
sewage, garbage disposal, telephone and other utility charges, and the expenses
of installation, maintenance, use and service in connection with the foregoing,
relating to the Premises during the Term.
ARTICLE VII - USE
7.01 PERMITTED USES. Tenant may use the Premises for any lawful purpose.
7.02 RIVERBOAT CASINO. Tenant may berth and operate Riverboat Casinos on
the Red River adjacent to or within or upon the Premises or sublease portions of
the Premises to third parties for such purpose. Tenant at any time may
substitute a different (but, if permanent, at least equal in quality) Riverboat
Casino for any Riverboat Casino operated at the Premises by Tenant.
7.03 PARKING. Tenant shall have the right to charge such amounts for
parking as Tenant deems appropriate; provided, however, that, except during
periods that charges are imposed for parking at lots owned, leased or operated
by any gaming operators on the Shreveport side of the Red River, Tenant shall
not charge for parking, other than valet parking, in the South Parking Facility
or the North Parking Facility. Under no circumstances shall Tenant be prohibited
or restricted from
26
charging a fee for valet parking at any time at either the South Parking
Facility or the North Parking Facility.
ARTICLE VIII - MARKS AND PUBLICITY
8.01 EXCLUSIVE OWNERSHIP OF MARKS. Landlord acknowledges and recognizes
the exclusive rights of Hollywood Casino Corporation, a Delaware corporation
("Hollywood"), and certain Affiliates of Hollywood, to the "Hollywood Casino"
name and system, and all other service marks, trademarks, copyrights, logos,
registrations and patents used in connection with the "Hollywood Casino"
casinos, riverboat casinos and casino hotels (collectively, the "Marks").
Landlord acknowledges that the Marks are the exclusive property of such
Affiliates. Landlord disclaims any right, title or interest in or to any of the
Marks by operation of this Lease or in the event of its termination or
cancellation. Such Affiliates shall have the sole right and (to the extent they
determine appropriate) responsibility to institute and prosecute all disputes
with third parties concerning the use of or any Xxxx.
8.02 REFERENCES TO MARKS. Landlord shall not use any Xxxx in any way or for
any purpose (including the sale of securities or in connection with any other
financing) without the prior written consent of the owner of such Xxxx.
8.03 EFFECT OF LEASE TERMINATION. Landlord acknowledges and agrees that
in the event of any termination or cancellation of this Lease (including on
account of an Event of Default): (a) neither Tenant nor any Affiliate of Tenant
shall be under any obligation, express or implied, to issue a license to
Landlord or any subsequent operator of any portion of the Premises; (b) Landlord
shall not use any Xxxx in association with the improvements located at the
Premises; and (c) Tenant and any Affiliate of Tenant shall have the right to
enter the Premises and remove all signs, furnishings, printed materials,
emblems, slogans or other distinguishing characteristics that in any way use or
are now or hereafter connected with any Xxxx.
8.04 PUBLICITY. Landlord agrees not to announce or refer to the Premises,
any Riverboat Casino or the Shoreside Complex orally or in writing with the use
of any Xxxx, in significant written public communication such as any press
release, advertisement, prospectus or other marketing communication of any kind
without Tenant's prior written consent.
ARTICLE IX - LAW
9.01 COMPLIANCE WITH LAW. During the Term, Tenant shall, at its own
expense, observe and comply with all Laws affecting the Premises; provided,
however, that: (i) maintenance and repair of improvements existing on the
Premises at the Construction Commencement Date shall be governed by the
applicable provision of Article X; and (ii) Tenant shall make any Mandated
Alterations required by Law arising at any time after the Construction
Commencement Date and thereafter during the Term, subject to the terms of
Section 9.02.
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9.02 MANDATED ALTERATIONS. If: (a) the LGCB or any Government requires
a Mandated Alteration of all or any portion of the Premises or any improvements
thereon; and (b) Tenant determines that the performance of such Mandated
Alteration would render the operation of the Premises Uneconomic, then,
notwithstanding anything to the contrary in this Lease, Tenant, in lieu of
performing such Mandated Alteration may elect to terminate this Lease by giving
Notice of such election to Landlord within one hundred eighty (180) days after
such requirement is imposed.
ARTICLE X - MAINTENANCE AND ALTERATIONS
10.01 OBLIGATION TO MAINTAIN. Commencing upon the Opening Date and
thereafter during the Term, Tenant shall keep and maintain the Premises in good
order, condition and repair in a condition and quality equal to its condition
and quality at the Opening Date, subject, in each case, to Casualty (governed by
the separate applicable provisions of this Lease), reasonable wear and tear, and
any other conditions that Tenant is not required to repair pursuant to this
Lease.
10.02 HOTEL MAINTENANCE.
(a) INSPECTION BY LANDLORD. At any time after the Opening Date,
Landlord shall be permitted to inspect the Hotel in order to verify
Tenant's compliance with the provisions of Section 10.01. Such inspections
(except for inspections of corrective actions) shall occur not more than
once in any year during the Term. Promptly and in any case not more than
thirty (30) days after any such inspection, Landlord shall give Tenant
Notice of any corrective action that Landlord believes is necessary to
comply with the requirements of Section 10.01 that requires corrective
action. Except as otherwise provided in Section 10.02 (b), Tenant shall
promptly thereafter perform such corrective actions as may be necessary to
cause the condition of the Hotel to be in material compliance with the
provisions of Section 10.01.
(b) ARBITRATION. If Tenant does not agree that corrective action is
necessary with respect to any Notice given by Landlord, then Tenant may
submit such matter to arbitration in accordance with the following
provisions:
(i) Landlord and Tenant may jointly appoint an Arbitrator. Such
Arbitrator shall render his decision within thirty (30) days of such
appointment.
(ii) If Landlord and Tenant do not appoint an Arbitrator under
Section 10.02(b)(i) within twenty (20) days after such Notice is
given, then each party shall appoint one Arbitrator within ten days
after the expiration of such 20-day period. Each such Arbitrator
shall be an individual who: (A) is not otherwise employed by and is
not otherwise a creditor of either party; and (B) has at least five
years of experience in the management and operation of riverboat
casino/gaming complexes. The two appointed Arbitrators shall meet
within ten days of such referral and shall appoint a third
Arbitrator, and if such Arbitrators are not able to agree on such
third Arbitrator within such time, then, on five days' Notice in
writing to the other
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Arbitrator, either Arbitrator shall apply to the branch of the
American Arbitration Association in Shreveport, Louisiana to
designate and appoint such third Arbitrator. The three Arbitrators
shall render their decision within twenty (20) days after the
appointment of the third Arbitrator. The Arbitrators shall act by
majority vote. If the Arbitrators fail to render their decision
within such time, either party may seek an order from a court of
competent jurisdiction in the State: (x) requiring such Arbitrators
to render their decision immediately, or (y) appointing one
replacement Arbitrator of equivalent qualifications and directing
such Arbitrator to render his decision.
(iii) If either party fails timely to appoint an Arbitrator
pursuant to Section 10.02(b)(ii), then the single Arbitrator
designated by the other party shall act as the sole Arbitrator and
shall be deemed to be the unanimously approved Arbitrator to resolve
such dispute.
(iv) The fees and expenses of the Arbitrators shall be paid by
the party whose position is not adopted by the Arbitrators. All
Arbitrators, by accepting appointment, submit to the jurisdiction of
the courts of the State.
(v) All proceedings by the Arbitrators shall be conducted in
accordance with the Uniform Arbitration Act as enacted in the State,
except to the extent the provisions of such Act are modified by this
Agreement or the mutual agreement of the parties. Unless otherwise
agreed, all arbitration proceedings shall be conducted in
Shreveport, Louisiana, at the offices of Landlord or Tenant.
(d) ARBITRATION DECISION. In all arbitration proceedings hereunder,
the Arbitrators shall be required to agree upon and approve the substantive
position advocated by one party with respect to each disputed item. The
Arbitrators shall exclusively and finally determine whether a particular
dispute falls within the scope of their authority unless such determination
is legally groundless or in excess of the limitations provided in this
Agreement. The decision and award of any Arbitrators made in accordance
with this Section 10.02 shall be binding on the parties and enforceable in
any court of competent jurisdiction.
10.03 IMPROVEMENTS AND STRUCTURES. Except as (a) permitted under
Article IV, (b) the construction of a hotel on the Expansion Parcel, (c) any
other construction with a cost less than $35,000,000.00, and (d) any
maintenance, repair or replacement in the ordinary course of business, Tenant
may not construct or permit the construction of any improvements or structures
without the prior written consent of Landlord, which shall not unreasonably be
withheld, delayed or conditioned. Such consent shall be deemed given if it has
not been denied in writing by Landlord within thirty (30) days from Landlord's
receipt of the plans and specifications for such proposed improvements. In the
event such additional development is for the purpose of development of sources
of revenue or profit centers not related to the operation of the Premises as
originally contemplated in this Lease, then such additional development shall
not be permitted unless and until Tenant and Landlord have agreed to a fair and
reasonable rental arrangement to cover the new revenue sources to be developed.
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Notwithstanding anything herein contained to the contrary, although Tenant shall
not be required to obtain the consent of Landlord to construct a hotel on the
Expansion Parcel, Tenant shall be required to submit design development
documents (similar in nature and scope to the Design Development Documents and
other related documents described in Section 4.03(a) hereof for the Hotel) to
the Design Review Committee for approval prior to commencing construction of a
hotel upon the Expansion Parcel. Upon its receipt of such documents, the Design
Review Committee shall approve or reject the documents submitted in the manner
and with the effect set forth in Section 4.03(b) hereof. If the Design Review
Committee rejects the aforesaid documents, Tenant may elect to arbitrate such
decision in the manner and with the effect set forth in Section 4.04 of this
Lease.
10.04 TENANT'S RIGHT TO PERFORM ALTERATIONS. At Tenant's sole cost and
expense, Tenant may perform material alterations or reconstructions to the
Shoreside Complex and Parking Structures subject to Landlord's consent as
provided in this Section 10.04. Tenant shall perform all such work in
substantial compliance with all Laws. Plans and specifications for all material
alterations or reconstructions shall be submitted to Landlord at least thirty
(30) days prior to commencement of work and will be subject to Landlord's
consent and approval, which shall not unreasonably be withheld, delayed or
conditioned and which shall be completed by Landlord within thirty (30) days
from receipt of the plans and specifications for such improvements.
Construction shall not commence until Landlord's approval is received by Tenant
or the review period expires.
10.05 PLANS AND SPECIFICATIONS. Except as provided in Sections 10.03 and
10.04, Tenant may make alterations, reconstructions or repairs to the
improvements on the Premises without Landlord's consent. If Tenant obtains
plans and specifications or surveys (including working plans and specifications
and "as-built" plans and specifications and surveys) for such improvements,
repairs or alterations, Tenant shall promptly provide Landlord with a true and
complete copy of such plans and specifications or surveys, subject to the terms
of any agreement between Tenant and the applicable outside architect, engineer
or surveyor. (Tenant shall exercise reasonable efforts to cause its agreements
with such outside professionals to permit the deliveries described in this
Section 10.05.) Plans and specifications and surveys delivered by Tenant to
Landlord shall be for Landlord's information only except to the extent, if any,
otherwise expressly provided in this Lease.
10.06 EXISTING IMPROVEMENTS. Nothing in this Lease shall be construed to
require Tenant to correct or remedy any noncompliance with Law affecting any
improvements existing at the Premises on the Commencement Date, or otherwise
maintain any such improvements in a condition fit for occupancy. Landlord shall
promptly reimburse Tenant for the cost incurred in the demolition or removal of
all existing above ground improvements (but excluding any surface parking lot),
removal of which is necessary for construction of the Shoreside Complex and the
Parking Facilities. To the extent that any Government specifically requires the
performance of any work or demolition to prevent any improvements not removed by
Tenant, if any, from constituting a hazard, Tenant shall perform such work or
demolition and Landlord shall promptly reimburse Tenant for the cost incurred in
such work or demolition.
ARTICLE XI - PROHIBITED LIENS
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11.01 TENANT'S COVENANT. Tenant shall not suffer or permit any Prohibited
Lien to be filed. If a Prohibited Lien is filed then Tenant shall, within 30
days after receiving Notice of such filing (but in any case within 15 days after
receipt of Notice of commencement of foreclosure proceedings), commence and then
prosecute appropriate action to cause such Prohibited Lien to be paid,
discharged or bonded. Nothing in this Lease shall be construed to restrict
Tenant's right to contest the validity of any Prohibited Lien and to pursue
Tenant's position to a final judicial determination. The mere existence of a
Prohibited Lien shall not be construed as a Default under this Lease.
11.02 PROTECTION OF LANDLORD. Notice is hereby given that Landlord shall
not be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such labor or
materials shall attach to or affect the Fee Estate. Nothing in this Lease shall
be deemed or construed in any way to constitute Landlord's consent or request,
express or implied, by inference or otherwise, to any contractor, subcontractor,
laborer, equipment or material supplier for the performance of any labor or the
furnishing of any materials or equipment for any improvement, alteration or
repair of or to the Premises, or any part of the Premises, nor as giving Tenant
any right, power or authority to contract for, or permit the rendering of, any
services, or the furnishing of any materials that would give rise to the filing
of any liens against the Fee Estate. Tenant shall Indemnify Landlord against any
work performed on the Premises for or by Tenant or any Subtenant.
ARTICLE XII - INDEMNIFICATION; LIABILITY OF LANDLORD
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12.01 MUTUAL INDEMNITY OBLIGATIONS. Landlord and Tenant shall each
Indemnify the other against: (a) any wrongful act, wrongful omission or
negligence of the Indemnitor (or, in the case of Tenant, of any of Tenant's
Subtenants) or its or their partners, directors, officers, or employees, or
their equivalent; and (b) any breach or default by the Indemnitor under this
Lease. In addition to and without limiting the generality of the foregoing
indemnity, Tenant shall Indemnify Landlord against all the following matters:
(x) the management or occupancy of, or any work or activity performed in and on,
the Premises, the Shoreside Complex or any Riverboat Casino by Tenant during the
Term or in the performance of Tenant's obligations under Section 28.07; (y) the
condition of the Premises, the Shoreside Complex or any Riverboat Casino or any
improvement located on the Premises, the Shoreside Complex or any Riverboat
Casino at any time after the Construction Commencement Date and thereafter
during the Term; and (z) any accident, injury or damage whatsoever caused to any
person occurring at any time after the Construction Commencement Date and
thereafter during the Term, in or on the Premises, the Shoreside Complex or any
Riverboat Casino or any improvements located on the Premises, the Shoreside
Complex or any Riverboat Casino. Furthermore, Tenant agrees to pay, and to
Indemnify Landlord against, reasonable legal costs, including reasonable counsel
fees and disbursements, incurred by Landlord in obtaining possession of the
Premises if Tenant fails to surrender possession upon the expiration or earlier
termination of the Term. Notwithstanding anything to the contrary in this
Lease, neither party shall be required to Indemnify the other party from or
against such other party's intentional acts or omissions or negligence, and
Tenant shall not be required to Indemnify Landlord from or against any condition
that existed on or at the Premises at or before the Construction Commencement
Date that was not created by Tenant. Landlord shall Indemnify Tenant against
any liability arising from the environmental condition of the Premises existing
immediately prior to the Construction Commencement Date and not created by
Tenant, whether such condition is known or unknown on the Construction
Commencement Date to the parties hereto. Tenant shall Indemnify Landlord
against any liability arising from any environmental condition of the Premises
created at any time after the Construction Commencement Date and thereafter
during the Term whether such condition is known or unknown on the Construction
Commencement Date or thereafter during the Term to the parties hereto. The
terms of this provision shall survive the termination or expiration of this
Lease.
12.02 LIABILITY OF LANDLORD. Tenant is and shall be in exclusive control
and possession of the Premises and all Improvements thereon at all times after
the Construction Commencement Date and thereafter during the Term as provided in
this Lease. Subject to Section 12.01, Landlord shall not be liable for any
injury or damage to any property or to any person occurring on or about the
Premises, the Shoreside Complex or any Riverboat Casino at any time commencing
upon the Construction Commencement Date and thereafter during the Term. The
provisions of this Lease permitting Landlord to enter and inspect the Premises
are intended to allow Landlord to be informed as to whether Tenant is complying
with the agreements, terms, covenants and conditions of this Lease, and to the
extent permitted by this Lease, to perform such acts required by this Lease as
Tenant shall fail to perform. Such provisions shall not be construed to impose
upon Landlord any liability to third parties, but nothing in this Lease shall be
construed to exculpate, relieve or Indemnify Landlord from or against any
liability of Landlord to third parties existing at or before the Construction
Commencement Date, or arising from facts or circumstances in existence at or
before the Construction Commencement Date, in respect of which Landlord shall
Indemnify Tenant.
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12.03 INDEMNITY RELATING TO ACCESS. Tenant shall Indemnify Landlord
against any accident, injury, damage or loss whatsoever caused to any person as
a direct result of inspections, work or any other activity performed in or on
the Premises by Tenant on and after the Commencement Date through and including
the date immediately preceding the Construction Commencement Date.
12.04 INDEMNIFICATION PROCEDURES. Wherever this Lease requires an
Indemnitor to Indemnify an Indemnitee, the following procedures and requirements
shall apply:
(a) PROMPT NOTICE. The Indemnitee shall give the Indemnitor prompt
Notice of any claim. To the extent, and only to the extent, that both (a)
the Indemnitee fails to give prompt Notice of such claim and (b) the
Indemnitor is thereby prejudiced, the Indemnitor shall be relieved of its
indemnity obligations under this Lease with respect to such claim.
(b) SELECTION OF COUNSEL. The Indemnitor shall be entitled to select
counsel (reasonably acceptable to the Indemnitee, but counsel to the
Indemnitor's insurance carrier shall be deemed satisfactory).
Notwithstanding anything to the contrary in the preceding sentence, if the
Indemnitee is Tenant or another Affiliate of Tenant, then: (a) the
Indemnitee shall be entitled to approve the Indemnitor's choice of counsel
or select the Indemnitee's own counsel and be represented by such counsel;
and (b) if the Indemnitee selects its own counsel, then such counsel shall
consult with (but not be controlled by) the Indemnitor's counsel and the
Indemnitor and the Indemnitee shall each pay fifty percent (50%) of the
reasonable attorneys' fees of the Indemnitee's counsel.
(c) SETTLEMENT. The Indemnitor may, with the consent of the
Indemnitee, not to be unreasonably withheld, settle the claim, except that
no consent by the Indemnitee shall be required as to any settlement by
which (x) the Indemnitor procures (by payment, settlement, or otherwise) a
release of the Indemnitee pursuant to which the Indemnitee is not required
to make any payment whatsoever to the third party making the claim, (y)
neither the Indemnitee nor the Indemnitor acting on behalf of the
Indemnitee makes any admission of liability, and (z) the continued
effectiveness of this Lease is not jeopardized in any way.
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ARTICLE XIII - RIGHT OF CONTEST
Notwithstanding anything to the contrary in this Lease, Tenant shall have
the right to contest, at its sole expense, by appropriate legal proceedings
diligently conducted in good faith, the amount or validity of any Imposition or
Prohibited Lien; the valuation, assessment or reassessment (whether proposed or
final) of the Premises for purposes of real estate taxes; the validity of any
Law or the application of any Law to the Premises; or the validity or merit of
any claim against which Tenant is required to Indemnify Landlord under this
Lease. Tenant may defer payment of the contested Imposition or compliance with
the contested Law or performance of any other contested obligation pending the
outcome of such contest, provided that such deferral does not subject the
Premises to any material risk of imminent forfeiture or Landlord to any material
risk of criminal liability. Landlord shall not be required to join in any such
contest proceedings unless a Law shall require that such proceedings be brought
in the name of Landlord or any owner of the Fee Estate. In such case, Landlord
shall cooperate with Tenant so as to permit such proceedings to be brought in
Landlord's name. In addition to, and without limiting, Landlord's obligations
under the preceding sentence, Landlord appoints Tenant as Landlord's attorney-
in-fact, irrevocably, with full power of substitution, to execute and deliver
any documentation, and to otherwise act on Landlord's behalf to the full extent
Landlord could and in Landlord's place and stead, in any such proceeding. This
appointment is coupled with an interest and is irrevocable. Tenant shall pay
all reasonable costs and expenses (including reasonable attorneys' fees)
incident to such proceedings. Tenant shall Indemnify Landlord against such
contest and against any liability arising from representations and warranties
set forth in any such documentation. Tenant shall be entitled to any refund of
any Imposition (and penalties and interest paid by Tenant) based upon Tenant's
prior overpayment of such Imposition, whether such refund is made during or
after the Term. Upon termination of Tenant's contest of an Imposition, Tenant
shall pay the amount of such Imposition (if any) as has been finally determined
in such proceedings to be due, together with any costs, interest, penalties or
other liabilities in connection with such Imposition. Upon final termination of
Tenant's contest of a Law, Tenant shall comply with such final determination.
Landlord shall not enter any objection to any contest proceeding undertaken by
Tenant pursuant to this Article XIII, except with respect to contest proceedings
involving or which may affect Impositions levied or collected by the City of
Shreveport. Subject to the City of Shreveport's right to intervene in matters
involving Impositions levied or collected by the City of Shreveport, Tenant's
right to contest any Imposition or the valuation, assessment or reassessment of
the Premises for tax purposes shall be to the exclusion of Landlord, and
Landlord shall have no right to contest the foregoing without Tenant's consent,
not to be unreasonably withheld.
ARTICLE XIV - INSURANCE
14.01 TENANT TO INSURE. Tenant shall, at Tenant's sole cost and expense,
commencing on the Construction Commencement Date and thereafter during the Term,
maintain or cause its Subtenants to maintain the following insurance (or its
then reasonably available equivalent):
(a) CASUALTY. Casualty insurance providing coverage for the Premises
and all equipment, fixtures, and machinery at or in the Premises, against
loss, damage, and
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destruction by fire and other hazards encompassed under broad form coverage
as may be customary for like properties in the Parish (but Tenant shall in
no event be required to maintain earthquake or war risk insurance) from
time to time commencing on the Construction Commencement Date and
thereafter during the Term, in an amount not less than 100% of the
replacement value of the insurable buildings, structures, improvements and
equipment (excluding excavations and foundations) located at the Premises,
but in any event sufficient to avoid co-insurance in the event of a partial
loss. To the extent customary for like properties at the time, such
insurance shall include coverage for explosion of steam and pressure
boilers and similar apparatus located at the Premises; an "increased costs
of construction" endorsement; and an endorsement covering demolition and
cost of debris removal.
(b) LIABILITY. General public liability insurance against claims for
personal injury, death or property damage occurring upon, in or about the
Premises and the Riverboat Casinos berthed at the Premises and streets and
passageways adjoining the Premises, including so-called Garage Keeper's
Legal Liability coverage. The coverage under all such liability insurance
shall be at least $50,000,000 in respect of any one occurrence, for injury
or death to persons or property damage. Landlord shall be entitled from
time to time, upon 180 days' Notice to Tenant, to increase the dollar
limits set forth in this Section 14.01(b), subject to the following
limitations, which shall be cumulative: (a) such increased limits shall
never exceed the limits initially set forth plus an increase proportionate
to the increase in the Consumer Price Index from the Construction
Commencement Date to the date of the adjustment, rounded to the nearest
million dollars; (b) such limits shall never exceed the limits customarily
maintained for similar commercial properties located in the Parish; and (c)
Landlord shall not be entitled to increase such limits more frequently than
once every five years.
(c) WORKERS' COMPENSATION. Workers' compensation insurance covering
all persons it employs in connection with the construction, alteration,
repair or operation of the Premises and with respect to whom any claim
could be asserted against Landlord or the Fee Estate.
(d) CONSTRUCTION PERIOD. For the period from the commencement of
construction of the Shoreside Complex through the completion of such
construction, Tenant shall also (i) ensure that the contractor of the
Shoreside Complex maintains customary contractor's liability insurance
having a limit of not less than $25,000,000 (and, if the contractor is
undertaking foundation, excavation or demolition work, an endorsement
stating that such operations are covered and that the "XCU Exclusions" have
been deleted); and (ii) Tenant shall maintain Builder's Risk Insurance
(having such scope of coverage as may be customary for like construction
projects in the Parish at the time) written on a completed value non-
reporting basis (with an endorsement stating that "permission is granted to
complete and occupy").
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(e) BUSINESS INTERRUPTION. Tenant shall obtain and maintain business
interruption insurance covering Tenant's business at the Premises and
Riverboat Casinos berthed at the Premises at all times commencing on the
Construction Commencement Date and continuing throughout the Term.
Business interruption insurance shall include coverage for the payment of
Fixed Rent, Percentage Rent and In Lieu Payments to the Landlord.
(f) OTHER. Tenant shall obtain such other insurance as Tenant
determines appropriate in the exercise of Tenant's reasonable business
judgment.
14.02 NATURE OF INSURANCE PROGRAM. Any or all insurance required by
this Lease may be provided by a "captive" insurance company affiliated with
Tenant or, by Notice to Landlord specifying the risks being covered by self-
insurance, through a self-insurance program provided, in the latter case, that
the self-insuring entity is (a) an affiliate or subsidiary of Tenant or (b) any
other substantial entity that, in Landlord's reasonable judgment, has sufficient
assets and net worth under the circumstances. Tenant agrees to provide any and
all necessary financial and reporting information which Landlord may reasonably
request in making this determination.
14.03 POLICY REQUIREMENTS AND ENDORSEMENTS. All insurance policies
required by this Lease shall contain (by endorsement or otherwise) the following
provisions:
(a) ADDITIONAL INSUREDS. Liability, casualty and business
interruption insurance policies shall name as additional insureds Landlord
and any Fee Mortgagees, as their interests may appear.
(b) PRIMARY COVERAGE. All policies shall be written as primary
policies not contributing with or in excess of any coverage that Landlord
may carry.
(c) TENANT'S ACT OR OMISSIONS. Each policy shall include, if
available without additional cost, a provision that any act or omission of
Tenant shall not prejudice any party's rights (other than Tenant's) under
such insurance coverage.
(d) CONTRACTUAL LIABILITY. Policies of liability insurance shall
contain contractual liability coverage, relating to Tenant's indemnity
obligations under this Lease.
(e) INSURANCE CARRIER STANDARDS. Each insurance carrier shall be
authorized to do business in the State, and, except to the extent such
insurance is provided in compliance with this Lease by an affiliated
"captive" insurance company or pursuant to Tenant's self-insurance program,
each domestic insurer shall have a "Best's" rating of at least A(-)VIII.
Unrated international insurance carriers may be utilized by Tenant only
with the prior approval of Landlord, which approval shall not be
unreasonably withheld; provided, that the Lloyd's of London Association is
approved by the Landlord.
(f) NOTICE TO LANDLORD. All policies of Insurance shall provide by
their express terms for 30 days' prior Notice of any cancellation to
Landlord.
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14.04 DELIVERIES TO LANDLORD. Upon Notice to such effect by Landlord,
Tenant shall deliver to Landlord policies or certificates or certified copies of
the insurance policies required by this Lease, endorsed "Paid" or accompanied by
other evidence that the premiums for such policies have been paid, at least ten
days before expiration of any then current policy.
14.05 BLANKET AND UMBRELLA POLICIES. Tenant may provide any insurance
required by this Lease pursuant to a "blanket" or "umbrella" insurance policy,
provided that such policy otherwise complies with this Lease.
14.06 WAIVER OF CERTAIN CLAIMS. To the extent that Landlord or Tenant
purchases any hazard insurance relating to the Premises, the party purchasing
such Insurance shall attempt to cause the insurance carrier to agree to a Waiver
of Subrogation. If any insurance policy cannot be obtained with a Waiver of
Subrogation, or a Waiver of Subrogation is obtainable only by the payment of an
additional premium, then the party undertaking to obtain the insurance shall
give Notice of such fact to the other party. The other party shall then have
ten (10) Business Days after receipt of such Notice either to place the
insurance with a company that is reasonably satisfactory to the other party and
that will issue the insurance with a Waiver of Subrogation at no additional
cost, or to agree to pay the additional premium if such a policy can be obtained
only at additional cost. To the extent that the parties actually obtain
insurance with a Waiver of Subrogation, the parties release each other, and
their respective authorized representatives, from any claims for damage to any
person or the Premises that are caused by or result from risks insured against
under such insurance policies, but only to the extent of the available insurance
proceeds.
14.07 NO REPRESENTATION OF ADEQUATE COVERAGE. Neither party makes any
representation, or shall be deemed to have made any representation, that the
limits, scope or form of insurance coverage specified in this Article IV are
adequate or sufficient.
ARTICLE XV - DAMAGE OR DESTRUCTION
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15.01 NOTICE; NO RENT ABATEMENT. Tenant shall promptly give Landlord
Notice of any Casualty. There shall be no abatement of Rent on account of a
Casualty. Tenant shall, with reasonable promptness, restore the damaged
improvements as nearly as may be practicable to their condition, quality, and
class immediately prior to such Casualty, with such changes or alterations
(including demolition) as Tenant shall elect to make in conformity with this
Lease; provided, however, that if, in Tenant's judgment, the cost to Tenant of
such restoration or other circumstances would cause the operation of the
Premises to be Uneconomic or if such Casualty occurs within the last year of the
Term, then Tenant may terminate this Lease by at least thirty (30) days' advance
Notice to Landlord and assign to Landlord all of Tenant's rights with respect to
insurance proceeds arising from the Casualty. If Tenant gives such a Notice,
then Landlord shall have the right, by Notice to Tenant within ten (10) Business
Days after receipt of Tenant's Notice, to require Tenant to cause the remaining
improvements to be demolished and the debris removed, so that the Premises are
returned to Landlord as vacant and level land. The parties shall cooperate to
make available the insurance proceeds for such work, which Tenant shall perform
with reasonable promptness but the completion of which shall not be a condition
to termination of this Lease. Any remaining insurance proceeds after
performance of such work shall belong to Landlord.
15.02 ADJUSTMENT OF CLAIMS; USE OF INSURANCE PROCEEDS. Tenant shall be
solely responsible for the adjustment of any insurance claim that has not been
assigned to Landlord under Section 15.01. All proceeds of casualty or hazard
insurance shall be paid to Tenant and shall under no circumstances be paid to
Fee Mortgagees unless (a) pursuant to some other express provision of this Lease
Tenant is required to pay or assign such proceeds to Landlord and (b) pursuant
to a Fee Mortgage such proceeds payable to Landlord shall be paid instead to the
Fee Mortgagee.
15.03 DEPOSITORY. All proceeds in excess of $1,000,000 of casualty
insurance to be applied by Tenant to rebuild, restore or repair the Premises
shall be deposited with a Depository, to be disbursed for the repair,
restoration or reconstruction of the Premises.
ARTICLE XVI - CONDEMNATION
16.01 SUBSTANTIAL CONDEMNATION. If a Substantial Condemnation of the
Premises shall occur, then this Lease shall terminate as of the effective date
of such Substantial Condemnation, and the Rent shall be apportioned accordingly.
The proceeds of any condemnation award made in connection with a Substantial
Condemnation shall be allocated between Landlord and Tenant as follows: (x)
first, Tenant shall be entitled to receive such portion of the award, with
interest, as shall equal the value of the Leasehold Estate including all
improvements located on the Premises; (y) second, Landlord shall, subject to the
rights of Fee Mortgagees, be entitled to receive such portion of the award, with
interest, as shall equal the value of the Fee Estate (which value shall reflect
the present value of Rent under this Lease) subject to this Lease; and (z)
third, Tenant shall be entitled to receive the entire remaining balance of any
such award. All determinations of value required by the preceding sentence
shall be made as if the Condemnation had never occurred, the Leasehold Estate
had not been terminated, and this Lease had continued for all Renewal Terms
except to the extent that Tenant determines that Tenant would have elected not
to exercise any future Renewal Option(s) not already exercised or deemed
exercised at the effective date of Condemnation.
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16.02 INSUBSTANTIAL CONDEMNATION. If an Insubstantial Condemnation
shall occur, then any condemnation award or awards shall be applied first to
repair, restoration or reconstruction of any remaining part of the improvements
not so taken. Tenant shall perform such repair, restoration or reconstruction
in accordance with applicable requirements of this Lease. The balance of any
such award or awards remaining after the repair, restoration or reconstruction
shall be distributed to Landlord and Tenant as if they were proceeds of a
Substantial Condemnation affecting only the portion of the Premises taken.
16.03 TEMPORARY CONDEMNATION. If a Temporary Condemnation shall occur
with respect to the use or occupancy of the Premises that, in Tenant's
reasonable judgment, renders the Premises unusable for its original purpose for
a period greater than ninety (90) days, then Tenant shall, at its option, be
entitled to terminate this Lease effective as of the commencement date of the
Temporary Condemnation. If Tenant exercises such option, then any Condemnation
award made in connection with such Temporary Condemnation shall be distributed
as if such Temporary Condemnation was a Substantial Condemnation in accordance
with Section 16.01. If the Temporary Condemnation relates to a period of ninety
(90) days or less, or if Tenant does not elect to terminate this Lease, then all
proceeds of such Temporary Condemnation (to the extent attributable to periods
within the Term) shall be paid to Tenant and Tenant's obligations under this
Lease shall not be affected in any way.
16.04 OTHER GOVERNMENTAL ACTION. In the event of any action by any
Government not resulting in a Condemnation but creating a right to compensation,
such as the changing of the grade of any street upon which the Premises abut,
then this Lease shall continue in full force and effect without reduction or
abatement of Rent and Tenant shall be entitled to receive the award or payment
made in connection with such action.
16.05 ASSIGNMENT OF CONDEMNATION PROCEEDS. Landlord hereby assigns to
a Depository selected for such purpose, who shall have the right to receive, and
there shall be paid to such Depository, the entire amount of any awards or other
sums received, whether by Landlord or Tenant, as compensation as a result of any
Condemnation. Such awards to be paid to such Depository shall include: (i) all
awards made on account of any improvements that are the subject of a
Condemnation, whether or not the value of such improvements is the subject of a
separate award or otherwise separately determined by the Condemnation authority;
and (ii) the full value of the land that is the subject of the Condemnation.
All such proceeds shall be applied and disbursed in accordance with this Article
XVI.
16.06 SETTLEMENT OR COMPROMISE. Neither Landlord nor Tenant shall
settle or compromise any Condemnation award in any Condemnation proceeding that
affects the property interests of the other party hereto without the consent of
the consent of such other party. Tenant shall be entitled to appear in such
proceedings and claim such share of the award as it is entitled to receive
pursuant to the terms of this Lease. Subject to the terms of its Leasehold
Mortgage, any Leasehold Mortgagee shall also be entitled to appear in such
proceedings and empowered to participate in any settlement, arbitration or other
proceeding involving any Condemnation. Landlord shall have no right to
participate in any proceedings affecting only the Leasehold Estate unless either
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(a) Tenant elects to terminate this Lease on account of such proceedings or (b)
Tenant is not legally permitted to participate in such proceedings. In the
latter case, Landlord shall participate in such proceedings in accordance with
Tenant's instructions, all at Tenant's expense and using counsel selected,
instructed and paid by Tenant. Nothing herein shall be construed to limit
Landlord's ability to assert a claim for compensation for Rent or other payments
required by this Lease as part of a condemnation award.
16.07 PROMPT NOTICE. If either party becomes aware of any Condemnation or
threatened or contemplated Condemnation, then such party shall promptly give
Notice thereof to the other party.
16.08 TAKING OR TERMINATION OF LEASE BY LANDLORD. Pursuant to Section
2.03(a) of the Charter of the City of Shreveport, Landlord, in its governmental
capacity, may be required to terminate this Lease because the Premises are
required for public purpose. In such event, the taking or termination shall be
treated as a Substantial Condemnation hereunder and all compensation lawfully
due for such taking shall be apportioned as provided in Section 16.01 hereof.
ARTICLE XVII - TRANSFERS BY LANDLORD
17.01 LANDLORD'S RIGHT TO CONVEY. Landlord shall not, during the Term
of this Lease, convey its Fee Estate except to a Fee Mortgagee which forecloses
on the Fee Estate or accepts a deed in lieu of foreclosure on the Fee Estate, as
a result of a default by Landlord under a Fee Mortgage.
17.02 NO ENCUMBRANCES. During the Term Landlord shall not enter into, grant
or permit or suffer to attach to the Fee Estate any easement, servitude,
restriction, lien (including mechanics' lien, material supplier's lien, or other
statutory lien) or other encumbrance affecting title to the Fee Estate (other
than a Fee Mortgage), except for encumbrances entered into at Tenant's request
or with Tenant's consent, or Permitted Exceptions. Tenant shall not unreasonably
withhold Tenant's consent so long as such easement, servitude, restriction, lien
or other encumbrance is fully subordinated to this Lease, all rights and
interests of Tenant hereunder, and all estates arising from this Lease
(including Leasehold Mortgages), any amendments to the foregoing, and the rights
of all other third parties then or thereafter claiming by, through or under
Tenant or any Leasehold Mortgage. Without Tenant's prior written consent, which
Tenant may withhold for any reason or no reason, Landlord shall not enter into
any agreement or instrument by which the Premises are combined with any other
real property for purposes of any Law governing zoning, bulk, development
rights, or any similar matters or by which any rights arising under such Laws to
develop the Premises are transferred to any other real property.
ARTICLE XVIII - TRANSFERS BY TENANT
18.01 ASSIGNMENT TO RELATED ENTITIES. This Lease may be assigned from
time to time by Tenant to any Affiliate of Tenant, so long as such assignee
agrees in writing to assume the obligations of Tenant.
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18.02 ACQUISITIONS. An acquisition of Tenant or any Affiliate of
Tenant shall not constitute an assignment of this Lease and is hereby expressly
permitted.
18.03 ASSIGNMENT TO UNRELATED ENTITIES. This Lease may be assigned
from time to time by Tenant to any assignee, provided that such assignee
expressly assumes in writing all obligations of Tenant hereunder, has a net
worth at the time of such assignment not less than $100,000,000 or its
obligations hereunder are guaranteed by an entity having a net worth at the time
of such assignment not less than $100,000,000.
ARTICLE XIX - SUBLETTING
19.01 TENANT'S RIGHT TO SUBLET. Tenant may enter into a Sublease,
extend, renew or modify any Sublease, consent to any sub-subleasing (or further
levels of subleasing) (all of which shall be within the defined term "Sublease,"
and the occupants thereunder shall all be deemed "Subtenants"), terminate any
Sublease or evict any Subtenant, all without Landlord's consent, provided,
however, that Tenant agrees not to sublet or otherwise license the Parking
Facilities (other than any retail space located within such Parking Facilities),
gaming operations and/or food and beverage services located within the
Pavilion/Hotel Parcel or the Expansion Parcel unless such Sublease or license
provides, or such Subtenant agrees to provide, Landlord with the same percentage
of such Subtenant's Adjusted Gross Revenue and Parking Facilities Net Income, if
applicable, from such activities, which would have been due if such activities
had been performed directly by Tenant and provides Landlord with audit rights
with respect to such revenues substantially equivalent to the audit rights
provided to Landlord under this Lease. Tenant agrees to give Landlord thirty
(30) days' prior Notice of any Sublease. The term of any Sublease (including
renewal options) shall not extend beyond the Term (including only any Renewal
Options previously exercised by Tenant or that Tenant agrees, in the Sublease,
to exercise). If Tenant enters into any Sublease, then each Sublease shall be
subordinate to this Lease and shall contain provisions in form and substance
substantially as follows, and each Subtenant by executing its Sublease shall be
deemed to have agreed to the following (the term "Sublandlord" to be defined in
the Sublease to refer to Tenant as sublandlord under the Sublease):
Subtenant agrees that if, by reason of a default under any underlying lease
(including any underlying lease through which Sublandlord derives its
leasehold estate in the demised subpremises), such underlying lease and the
leasehold estate of Sublandlord in the demised subpremises is terminated,
then Subtenant, at the option and request of the then fee owner of the
demised subpremises (the "Fee Landlord"), shall attorn to such Fee Landlord
as Subtenant's direct landlord under this Sublease and the Fee Landlord
shall recognize such Subtenant as its direct tenant under this Sublease.
Subtenant agrees to execute and deliver, at any time and from time to time,
upon the request of Sublandlord or of the Fee Landlord or any mortgagee of
either, any instrument that may be necessary or appropriate to evidence
such attornment. Subtenant hereby appoints Sublandlord or such Fee
Landlord or such mortgagee the attorney-in-fact, irrevocably, with full
power of substitution, of Subtenant to execute and deliver any such
instrument for and on behalf of Subtenant. This appointment is coupled
with an interest and is irrevocable. Subtenant waives any statute or rule
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of law now or subsequently in effect that may give or purport to give
Subtenant any right to elect to terminate this Sublease or to surrender
possession of the demised subpremises in the event any proceeding is
brought by a Fee Landlord to terminate any such underlying lease.
Subtenant agrees that this Sublease shall not be affected in any way
whatsoever by any such proceeding.
19.02 SUBORDINATION, ATTORNMENT AND NONDISTURBANCE. Landlord shall,
upon Tenant's request made at any time or from time to time, enter into a
Subordination, Attornment and Nondisturbance Agreement in the form of Exhibit
"E" (a "SAND Agreement") with any Subtenant, and if Landlord fails or refuses to
enter into a SAND Agreement Landlord shall be deemed to have done so, provided
that: (a) the rent per rentable square foot of improvements under such sublease
equals or exceeds the corresponding Rent under this Lease, allocated over all
improvements constituting part of the Premises or the aggregate rent under such
Subleases and all other Subleases as to which Tenant requests or obtains SAND
Agreements equals or exceeds the Rent under this Lease, and such Sublease is on
terms that are commercially reasonable at the time of execution of such Sublease
and (b) Tenant provides Landlord with a copy of such Sublease, which Sublease
shall contain the attornment provisions required by this Lease. If Landlord
fails to execute and return to Tenant any such SAND Agreement within ten
Business Days after Landlord's receipt of the same, then Landlord authorizes and
instructs Tenant to execute such SAND Agreement on Landlord's behalf.
Accordingly, Landlord appoints Tenant as Landlord's attorney-in-fact, with full
power of substitution, to execute and deliver any such SAND Agreement for and on
behalf of Landlord. This appointment is coupled with an interest and is
irrevocable.
19.03 NO RELEASE OF TENANT UPON SUBLEASE. No Sublease shall affect or
reduce any obligations of Tenant or rights of Landlord under this Lease. All
obligations of Tenant under this Lease shall continue in full force and effect
notwithstanding any Sublease.
19.04 ASSIGNMENT OF SUBLEASE RENTS. Tenant hereby assigns, transfers
and sets over to Landlord all of Tenant's right, title, and interest in and to
every Sublease entered into by Tenant from time to time, together with all
subrents or other sums of money due and payable under such Sublease, and all
security deposited with Tenant under such Sublease. Such assignment shall,
however, become effective and operative only if this Lease shall expire or be
terminated or canceled, or if Landlord re-enters or takes possession of the
Premises pursuant to this Lease.
ARTICLE XX - TENANT'S RIGHT TO MORTGAGE
Tenant shall have the absolute and unconditional right, without Landlord's
consent, to execute and deliver Leasehold Mortgage(s) encumbering this Lease and
the Leasehold Estate at any time and from time to time during the Term.
Landlord shall not be required to join in or "subordinate" the Fee Estate to any
Leasehold Mortgage. If Tenant exercises this right, the provisions of Exhibit
"G" shall be applicable and shall govern the effect of any rights arising under
any Leasehold Mortgage(s) executed and delivered by Tenant as if such provisions
were fully set forth in this Lease. The parties shall execute such further
documents as may be required to effect the foregoing.
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ARTICLE XXI - QUIET ENJOYMENT
Landlord covenants that Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises for the Term without molestation or disturbance by
or from Landlord, anyone claiming by or through Landlord or having title to the
Premises paramount to Landlord or any Fee Mortgagee, and free of any encumbrance
created or suffered by Landlord, except Permitted Exceptions; provided the
foregoing covenant is applicable to the Texas Street Parcel only to the extent
of Landlord's right, title and interest therein.
ARTICLE XXII - REPRESENTATIONS AND WARRANTIES
Landlord represents and warrants to Tenant that the following facts and
conditions exist and are true as of the Commencement Date and, to the extent
specifically so stated, will remain true throughout the Term. In addition,
Tenant makes, for the benefit of Landlord, certain reciprocal representations
and warranties as set forth below.
22.01 DUE AUTHORIZATION AND EXECUTION. Landlord has full right, title,
authority and capacity to execute and perform this Lease, the Memorandum of
Lease and any other agreements and documents to which Landlord is a party and
referred to or required by this Lease (collectively, the "Documents"); the
execution and delivery of the Documents has been duly authorized by all
requisite actions of Landlord; the Documents constitute valid and binding
obligations of Landlord; neither the execution of the Documents nor the
consummation of the transactions contemplated thereby violates any agreement
(including Landlord's organizational documents), contract or other restriction
to which Landlord is a party or is bound. Tenant makes reciprocal warranties
and representations to Landlord. Both parties' representations and warranties
contained in this Section 22.01 shall continue to apply in full force and effect
throughout the Term as if made continuously throughout the Term.
22.02 NO LITIGATION. There is no pending litigation, suit, action
or proceeding before any court or administrative agency nor has Landlord
received any formal notice of any threatened litigation, suit, action or
proceeding before any court or administrative agency affecting the Premises or
attacking the validity of this Lease or the Landlord's execution, delivery and
performance of this Lease or that would, if adversely determined, adversely
affect the validity of this Lease.
22.03 FIRPTA. Landlord is not a "foreign person" within the meaning
of Section 1445(f)(3) of the United States Internal Revenue Code of 1986.
22.04 NO PENDING IMPROVEMENTS. Landlord is not a party to any
outstanding contracts for any improvements to the Premises, nor does any person
have the right to claim any mechanic's or supplier's lien arising from any labor
or materials furnished to Landlord.
22.05 NO OTHER TENANTS. At the Construction Commencement Date, Tenant
will be the only tenant of the Premises.
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22.06 REPRESENTATIONS AND WARRANTIES IN AGREEMENT TO LEASE. All of
Landlord's representations and warranties set forth herein are true and correct
as of the Commencement Date and will be true and correct on the Construction
Commencement Date. Tenant makes a reciprocal warranty and representation to
Landlord as to the truth and correctness of Tenant's representations and
warranties herein.
ARTICLE XXIII - FORCE MAJEURE
Tenant's obligation to perform or observe any term, condition, covenant or
agreement on Tenant's part to be performed or observed pursuant to this Lease
(other than Tenant's obligation to pay any item of Rent when due) shall be
suspended during such time as such performance or observance is prevented or
delayed by reason of any Unavoidable Delay. Tenant shall make reasonable
efforts to mitigate or reduce the effects of any Unavoidable Delay.
ARTICLE XXIV - ACCESS
Landlord and its agents, representatives and designees shall have the right
to enter the Premises upon reasonable notice to Tenant during regular business
hours and in accordance with Tenant's reasonable instructions, solely for the
purpose of curing Tenant's Defaults (provided that Landlord shall have given
Tenant prior Notice of such Default in accordance with this Lease) or for
purposes relating to the transfer or sale of the Fee Estate in compliance with
this Lease. In entering the Premises pursuant to this Article XXIV, Landlord
and its designees shall not interfere with the conduct of operations on the
Premises by Tenant or anyone claiming through Tenant and shall comply with
Tenant's reasonable instructions. Landlord shall Indemnify Tenant against any
claims arising from Landlord's entry upon the Premises pursuant to this Article
XXIV or any other provision of this Lease permitting Landlord to enter the
Premises (except upon termination of this Lease).
ARTICLE XXV - LATE PAYMENT
If Tenant makes any payment required under this Lease more than fifteen
(15) days after such payment is first due and payable, then in addition to any
other remedies Landlord may have under this Lease, and without reducing or
adversely affecting any of Landlord's other rights and remedies, Tenant shall
pay Landlord interest on such late payment, at an interest rate equal to the
Prime Rate plus two percent (2%), beginning on the day payment was first due and
payable and continuing until the date when Tenant actually makes such payment.
Failure to pay such interest shall be deemed a failure to make the late payment
and, in such event, payment without interest shall not cure any applicable
Monetary Default.
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ARTICLE XXVI - LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
26.01 LANDLORD'S OPTION. If Tenant shall at any time fail to make
any payment or perform any other act on its part to be made or performed, then
Landlord, after ten Business Days' Notice to Tenant, or with such notice (if
any) as is reasonably practicable under the circumstances, in case of an
emergency, and without waiving or releasing Tenant from any obligation of Tenant
or from any default by Tenant and without waiving Landlord's right to take such
action as may be permissible under this Lease as a result of such Default, may
(but shall be under no obligation to) make such payment or perform such act on
Tenant's part to be made or performed pursuant to this Lease. Subject to the
provisions of Article XXIV, Landlord may enter upon the Premises for such
purpose.
26.02 REIMBURSEMENT BY TENANT. All reasonable sums paid by Landlord
and all costs and expenses reasonably incurred by Landlord, together with
reasonable attorneys' fees, in connection with the exercise of Landlord's cure
rights under Section 26.01, shall constitute Additional Rent. Tenant shall pay
such Additional Rent within thirty (30) days after Landlord's demand accompanied
by evidence reasonably establishing that Landlord properly and reasonably
incurred such costs and expenses in accordance with this Lease.
ARTICLE XXVII - DEFAULT BY TENANT; REMEDIES
27.01 EVENTS OF DEFAULT. The term "Event of Default" shall mean and
refer to the occurrence of any one or more of the following circumstances:
(a) MONETARY DEFAULT. If a Monetary Default shall occur and the
Monetary Default shall continue for thirty (30) days after Landlord has
given Tenant Notice of such Monetary Default, specifying in reasonable
detail the amount of money required to be paid by Tenant and the nature of
such payment; provided, however, payment(s) withheld by Tenant that are the
subject of a pending legal or arbitration proceeding between Landlord and
Tenant shall not constitute a Monetary Default, unless such payment(s)
is/are not made within thirty (30) days of a final, non-appealable
judgment with respect to such payment(s) in favor of the Landlord.
(b) NON-MONETARY DEFAULT. If a Non-Monetary Default shall occur and
the Non-Monetary Default shall continue and not be remedied by Tenant
within sixty (60) days after Landlord shall have delivered to Tenant a
Notice describing the same in reasonable detail, or, in the case of a Non-
Monetary Default that cannot with due diligence be cured within sixty (60)
days from such Notice, if Tenant shall not (x) within sixty (60) days from
Landlord's Notice advise Landlord of Tenant's intention to take all
reasonable steps necessary to remedy such Non-Monetary Default, (y) duly
commence the cure of such Non-Monetary Default within such period, and then
diligently prosecute to completion the remedy of the Non-Monetary Default
and (z) complete such remedy within a reasonable time under the
circumstances.
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27.02 REMEDIES. Upon occurrence of an Event of Default, Landlord may
exercise any or all of the following remedies, and any other remedies provided
for under this Lease or available by law, all of which shall be cumulative: (a)
Landlord shall have the right to proceed by appropriate judicial proceedings,
either at law or in equity, to enforce performance or observance by Tenant of
the applicable provisions of this Lease and/or to recover damages to the extent
arising against Tenant for breach of this Lease; and/or (b) Landlord may give
Tenant a Notice of termination of this Lease, which shall be effective from the
date of service of such Notice. Upon delivery of such Notice, this Lease, the
Leasehold Estate and the Term shall terminate and Landlord shall retake
possession of the Premises and all rights of Tenant shall come to an end with
the same effect as if that day were the expiration date of this Lease. Tenant
shall peaceably and quietly yield up and surrender to Landlord the Premises.
27.03 RE-ENTRY. Upon the occurrence of an Event of Default and the
termination of this Lease as provided in this Article XXVII, Landlord or
Landlord's agents and employees may re-enter the Premises, or any part of the
Premises, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force (to the extent permitted by law) or otherwise,
without being liable to indictment, prosecution or damages, and may repossess
the same, and may remove any person from the Premises, all so that Landlord may
have, hold and enjoy the Premises.
27.04 PENDING DISPUTE REGARDING EVENT OF DEFAULT. Notwithstanding anything
to the contrary in the foregoing remedies provided for Landlord under this
Lease, if Tenant shall have given Landlord Notice before termination of this
Lease that Tenant contests Landlord's determination that an Event of Default has
occurred, then Landlord shall not disturb Tenant's possession of the Premises,
Tenant shall be entitled to remain in possession of the Premises under this
Lease, and the Term shall be deemed to continue, so long as: (a) Tenant
continues to pay Landlord the Rent provided for in this Lease and continues to
perform such other obligations under this Lease as are not in dispute; and (b)
no final order or judgment terminating this Lease or Tenant's possession
thereunder has been entered by a court of competent jurisdiction.
27.05 LATE PAYMENT FEE. If more than one Monetary Default occurs in any
year, then for the second and each subsequent Monetary Default in such year,
Tenant shall pay a late fee equal to five percent (5%) of the payment that is
the basis of such Monetary Default at the time such payment is made.
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ARTICLE XXVIII - TERMINATION
All improvements constituting part of the Premises (including signs bearing
any Xxxx, furniture, fixtures and equipment and any personal property) shall be
the property of Tenant during the Term and subsequent to the Termination Date if
this Lease is terminated by Landlord pursuant to Section 16.08 of this Lease.
If this Lease terminates or expires for any reason other than the exercise by
Landlord of its right to terminate this Lease pursuant to Section 16.08 hereof,
all improvements constituting part of the Premises (other than signs bearing any
Xxxx, furniture, fixtures and equipment and any personal property, all of which
Tenant may remove) shall become Landlord's property (subject to Permitted
Exceptions). Upon a termination of this Lease by Landlord pursuant to Section
16.08 hereof, such termination shall be treated as a Substantial Condemnation
hereunder and all compensation lawfully due for such taking shall be apportioned
as provided in Section 16.01 hereof. Upon the termination or expiration of this
Lease for any other reason, Landlord and Tenant shall have the following rights
and obligations as set forth in this Article XXVIII:
28.01 POSSESSION. Tenant shall deliver to Landlord possession of the
Premises, in a good order, condition and repair, subject to reasonable wear and
tear, and any other conditions that Tenant is not required to repair pursuant to
this Lease.
28.02 ADJUSTMENT OF REVENUES AND EXPENSES. Landlord and Tenant shall adjust
between themselves, as of 11:59 p.m. on the Termination Date, all revenues and
expenses of owning, operating, occupying, managing and maintaining the Premises,
including all revenues and expenses of the Premises that would customarily be
apportioned in connection with a conveyance of the Premises. Such apportionments
shall be calculated and determined in a manner consistent with proper accounting
practices. Any disputes shall be resolved by a certified public accountant
designated by Tenant and reasonably satisfactory to Landlord.
28.03 DOCUMENTATION. Tenant shall deliver to Landlord copies or originals
of all Subleases, Sublease files, contracts (other than contracts with Tenant's
parent, subsidiaries or affiliates, which shall automatically terminate on the
Termination Date), maintenance and service records, plans, specifications,
manuals and all other papers and documents that may be necessary or appropriate
for the proper operation and management of the Premises, provided the same are
in Tenant's possession and can lawfully be delivered to Landlord. The operating
manuals of Tenant, any Subtenant and any Affiliate of Tenant or any Subtenant
for the operation of a casino or Riverboat Casino or hotels and related
facilities and all personnel files are specifically excluded.
28.04 MISCELLANEOUS ASSIGNMENTS. Upon request, Tenant shall assign to
Landlord, without recourse, all assignable licenses and permits affecting the
Premises and all assignable contracts, warranties and guarantees then in effect
relating to the Premises, other than any to which Tenant or its partners or
their subsidiaries or affiliates are a party.
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28.05 TERMINATION OF MEMORANDUM OF LEASE. If the parties shall have
entered into and recorded a Memorandum of Lease, then they shall enter into a
memorandum, in recordable form reasonably satisfactory to both parties,
terminating the Memorandum of Lease.
28.06 PERSONAL PROPERTY AND EQUIPMENT. Upon termination of this Lease,
Tenant shall have the right to remove all personal property and equipment that
is not attached to the Premises, provided such removal is not to the prejudice
of any lessor's privilege in favor of Landlord securing amounts then due.
28.07 REMOVE RIVERBOAT CASINO. Except as otherwise provided for
herein or as otherwise agreed by the parties hereto, upon the termination of
this Lease for any reason, Tenant shall remove any Riverboat Casino owned and
operated at the Premises by Tenant and all personal property located on said
Riverboat Casino from the Premises, within sixty (60) days following the
Termination Date, without compensation or further obligation to Landlord.
ARTICLE XXIX - NO BROKER
Neither Landlord nor Tenant has engaged the services of a broker, finder or
agent in this transaction as it relates to the Premises, and neither has
employed, nor authorized any other person to act in such capacity. Landlord and
Tenant each hereby agree to Indemnify the other in accordance with Article XII,
as a result of any claim brought by a person or entity engaged or claiming to be
engaged as a finder, broker or agent by the Indemnitor. The foregoing
representation, warranty and indemnity shall survive the expiration or earlier
termination of this Agreement.
ARTICLE XXX - WAIVERS
30.01 NO WAIVER BY SILENCE. Failure of either party to complain of
any act or omission on the part of the other party shall not be deemed a waiver
by the non-complaining party of any of its rights under this Lease. No waiver
by either party at any time, express or implied, of any breach of any provisions
of this Lease shall be a waiver of a breach of any other provision of this Lease
or a consent to any subsequent breach of the same or any other provision. No
acceptance by Landlord of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment on account.
30.02 WAIVER OF TRIAL BY JURY. Landlord and Tenant hereby waive trial
by jury in any action, proceeding or counterclaim brought by either against the
other on any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, including any claim of injury or damage, and any emergency or
statutory remedy with respect to the foregoing.
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ARTICLE XXXI - MEMORANDUM OF LEASE
The parties shall at any time, at the request of either, promptly execute,
acknowledge and deliver duplicate originals of a recordable memorandum of lease
(the "Memorandum of Lease") in the form of Exhibit "F" and containing such other
information as may, from time to time, be legally required to be contained in a
memorandum of lease.
ARTICLE XXXII - ESTOPPEL CERTIFICATES
32.01 RIGHTS TO EACH PARTY. At any time and from time to time, upon
not less than ten Business Days prior written request (an "Estoppel Certificate
Request") by either party to this Lease (the "Requesting Party"), the other
party to this Lease (the "Certifying Party") shall execute, acknowledge and
deliver to the Requesting Party (or directly to a third party whose name and
address are provided by the requesting party (a "Third Party") up to four
original counterparts of an Estoppel Certificate. An Estoppel Certificate
Request shall not be valid unless accompanied by: (a) up to four counterparts of
a proposed form of Estoppel Certificate reflecting present facts and
circumstances at the time of the Estoppel Certificate Request; and (b) a
certificate by the Requesting Party that to the best of the Requesting Party's
knowledge the proposed form of Estoppel Certificate is substantially correct and
omits no material information required to be disclosed in such Estoppel
Certificate. Any Estoppel Certificate may be relied upon by any Third Party to
whom an Estoppel Certificate is required to be directed. The execution of any
Estoppel Certificate shall not limit the rights of the Certifying Party against
the Requesting Party.
32.02 FAILURE TO EXECUTE ESTOPPEL CERTIFICATE. If (i) the Requesting
Party delivers an Estoppel Certificate Request to the Certifying Party in
accordance with the Notice provisions of this Lease and (ii) ten Business Days
have elapsed from the effectiveness of such Estoppel Certificate Request and
during such period the Certifying Party has failed to execute and deliver to the
Requesting Party (or its attorneys or the Third Party(ies) designated by such
Requesting Party) the Estoppel Certificate counterpart(s) provided by the
Requesting Party, setting forth with reasonable specificity any alleged
exceptions to the statements required to be contained in such Estoppel
Certificate, then the Certifying Party shall be deemed for all purposes, whether
or not this Lease has been terminated or is otherwise in full force and effect,
to have executed and delivered to the Third Party and the Requesting Party an
Estoppel Certificate, dated as of the effective date of the Estoppel Certificate
Request, in the form submitted by the Requesting Party to the Certifying Party.
32.03 DELIVERY OF ESTOPPEL CERTIFICATES. Any Requesting Party may
request that the Certifying Party execute an undated Estoppel Certificate. If
the Requesting Party makes such request, then in place of delivering the undated
Estoppel Certificate to the Requesting Party or any Third Party, the Certifying
Party shall deliver the undated Estoppel Certificate to the Requesting Party's
attorneys, who shall hold the undated Estoppel Certificate in accordance with
the following provisions. If the Certifying Party gives Notice to the
Requesting Party's attorneys that the Estoppel Certificate is no longer correct,
then the Requesting Party's attorneys shall return the Estoppel Certificate to
the Certifying Party, who shall within five Business Days execute a corrected
undated Estoppel Certificate and redeliver it to the Requesting Party's
attorneys. At any time when the
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Requesting Party's attorneys are holding an undated Estoppel Certificate and
have not received notice from the Certifying Party that such Estoppel
Certificate is incorrect, the Requesting Party shall be entitled to instruct its
attorneys to date the Estoppel Certificate as of the then-current date and
deliver it to the Requesting Party or a Third Party. The Requesting Party's
attorneys shall promptly comply with such request. The Requesting Party shall be
entitled to designate any title insurance company or abstract company licensed
in the State to take the actions to be taken by the Requesting Party's attorneys
pursuant to this paragraph. If requested by the Requesting Party's attorneys or
such title insurance company or abstract company, the Requesting Party and the
Certifying Party shall enter into an escrow agreement, on customary terms, to
further implement the provisions of this Section 32.03.
ARTICLE XXXIII - EQUAL OPPORTUNITY EMPLOYMENT AND
AFFIRMATIVE ACTION PLAN
Tenant shall utilize, and coordinate with, the Office of the Mayor to
help ensure the various provisions within this Article XXXIII are fulfilled in a
manner that fosters meaningful participation opportunities for local and
minority/women business enterprise ("M/WBE") vendors, suppliers and contractors.
Tenant agrees that it will make good faith efforts to meet and increase the
voluntary M/WBE goals that Tenant establishes with the Louisiana Gaming Control
Board. These goals have been established as 25% minority business enterprise
procurement and 10% female business enterprise procurement. In an effort to
meet and increase those goals, Tenant and Landlord shall establish and appoint
an Equal Opportunity Employment and Procurement Advisory Council (the "Advisory
Council") comprised of business leaders to advise on the establishment of and
support the attainment of M/WBE procurement and employment goals, with the
overall objective of expanding the level of M/WBE procurement, and increasing
the number of minorities in management positions. The Advisory Council shall be
comprised of six (6) members, three (3) of whom shall be appointed by the
Landlord. Tenant and Landlord may change the number and method of appointment
of members and the frequency of meetings by mutual consent. The Advisory
Council shall provide Tenant with suggested methods to increase M/WBE
procurement activity, and to increase minority representation in management
positions. The Advisory Council shall meet monthly with representatives of the
Tenant regarding Tenant purchasing needs and goals for the next ninety (90)
days. The Tenant shall provide Landlord and Advisory Council with quarterly
reports on M/WBE procurement and employment goals established by Tenant and
related goal achievement. Such reports shall be issued within thirty (30) days
from the end of each calendar quarter of each year.
Tenant agrees to use its best efforts to in good faith:
(a) seek to employ in its operations, at all levels, individuals
living in the City of Shreveport from the various gender, racial and ethnic
backgrounds found in the City of Shreveport. The selection process will be
carried out with a focus on Tenant's commitment to hiring at least eighty
percent (80%) local area residents and at least forty percent (40%)
minorities.
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(b) actively recruit handicapped persons in the City of Shreveport to
be included among its employees. Tenant will contact applicable
organizations within the greater Shreveport area that support persons with
disabilities to seek out qualified persons with disabilities for potential
employment. Tenant will fully comply with the Americans with Disabilities
Act. Furthermore, Tenant is taking a leadership position within the
industry by training all of its employees in disability etiquette toward
customers and fellow employees.
(c) contract with local vendors of various gender, racial and
ethnic backgrounds found in the City of Shreveport to the extent possible
and insofar as service availability, cost competitiveness and service
quality will allow.
Tenant will establish a goal expenditure level for certified M/WBEs.
Contracting preference will be given to qualified M/WBEs certified by
either the Mayor of the City of Shreveport or the State of Louisiana.
Tenant will develop a partnership with local area certified M/WBEs to help
them secure a positive business relationship by offering expert advice on
purchasing matters, setting up bids, seeking operational monies, and, if
necessary, establishing an up-front-payment plan for goods and services
rendered. In evaluating M/WBE participation, consideration will be given
to the "reasonable price" of that participation. This "reasonable price"
concept: (i) recognizes that because of difficulty in obtaining financing,
start-up costs, less experience, inability to purchase large quantities of
supplies and other factors, M/WBE prices may be somewhat higher than those
of non-M/WBEs, at least initially; (ii) provides protection to M/WBEs from
being rejected when their prices are only slightly higher than non-M/WBEs;
and (iii) provides that meeting stated M/WBE goals is treated similarly to
complying with any other specification of the bid solicitation which a
contractor must meet in order to be considered a responsive bidder.
Construction Phase - Prior to the contracting process, Tenant will meet
with a representative sampling of minority and female construction related
companies in a geographic area no smaller than an area encompassing Dallas,
Texas, New Orleans, Louisiana and Atlanta, Georgia (the "Subject Area") to
ensure that such companies: (1) are fully aware of the available contract
opportunities for construction projects and (2) have a Tenant contact
person available to answer questions throughout the contracting and
construction phase of such projects. After surveying a representative
sampling of minority and female construction related companies in the
Subject Area, Tenant will establish a goal for the total construction
budget to be contracted with such companies. Any general contractor
wanting to do business with Tenant for construction projects must accept
this provision in order to contract with Tenant. The general contractor
will be held accountable for ensuring compliance with M/WBE goals and will
be required to report on such goal compliance at least quarterly (such
reports will be made available to the Office of the Mayor).
Operations Phase - M/WBE companies will be identified and contacted by
local management. As should be the case in any business, vendors will be
sought that can offer quantity, quality and service, but with a strong
commitment to M/WBE companies.
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(d) provide training in the City of Shreveport for individuals to
be employed by Tenant. Once hired, an employee will be trained in the
skills necessary to deliver the kind of service for a first-class riverboat
casino/hotel complex. Individuals will be paid during the training period.
This mandatory training will address applicable job functions within the
gaming business (e.g., table games, slot machines, shift supervision,
security, food and beverage, guest services, etc.) Tenant will continue to
work with the various community groups identified above to keep the line of
communication continuously open.
Tenant will provide to Landlord Tenant's annual community review
report covering the Shreveport properties of Tenant. Tenant believes that any
commitment such as made above should include a reporting and feedback mechanism,
and Tenant accordingly welcomes the requirement for such reporting. The annual
community review report will cover minority hiring as well as business done with
M/WBEs.
ARTICLE XXXIV - MISCELLANEOUS
34.01 REASONABLENESS. Wherever this Lease states that approval by either
party shall not be unreasonably withheld: (a) such approval shall not be
unreasonably delayed or conditioned; and (b) no withholding of approval shall be
deemed reasonable unless withheld by Notice specifying reasonable grounds, in
reasonable detail, for such withholding of approval, and indicating specific
reasonable changes in the proposal under consideration that would cause such
proposal to be acceptable.
34.02 DOCUMENTS IN RECORDABLE FORM. Wherever this Lease requires either
party to deliver to the other a document in recordable form, both parties shall
be deemed to have consented to the recording of such document, at the sole
expense of the party that elects to record it.
34.03 FURTHER ASSURANCES. Each party agrees to execute and deliver such
further documents, and perform such further acts, as may be reasonably necessary
to achieve the intent of the parties with respect to Tenant's leasing of the
Premises from Landlord, as set forth in this Lease. Without limiting the
generality of this Section 34.03, upon request at any time or from time to time
either party shall execute and deliver to the other: (a) additional counterparts
of this Lease or any related documents, provided such additional counterparts
are prepared at the expense of the party requesting them; and (b) such
documentation as any title insurance company shall require to evidence such
matters as due formation, authorization and execution of this Lease on the part
of the party of whom the request is made.
34.04 PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise
as to the amount of any payment to be made by one party to the other under this
Lease, then the party against whom the obligation to pay is asserted shall have
the right to make payment "under protest." Such payment shall not be regarded
as a voluntary payment. The party making the payment shall continue to have the
right to institute suit for recovery of such sum. To the extent that it shall
be determined that the
52
party making the payment "under protest" was not required to make such payment,
such party shall be entitled to recover such sum or so much of such sum as such
party was not legally required to pay pursuant to this Lease, together with
interest on such overpayment at the Prime Rate.
34.05 NO THIRD PARTY BENEFICIARIES. Nothing in this Lease shall be
deemed to confer upon any person (other than Landlord, Tenant, Fee Mortgagees or
Leasehold Mortgagees) any right to insist upon, or to enforce against Landlord
or Tenant, the performance or observance by either party of its obligations
under this Lease.
34.06 INTERPRETATION. No inference in favor of or against any party shall
be drawn from the fact that such party has drafted any portion of this Lease.
The parties have both participated substantially in the negotiation, drafting
and revision of this Lease with representation by counsel and such other
advisers as they have deemed appropriate. Material in brackets constitutes
parenthetical material within other parenthetical material and is intended to be
part of this Lease. The words "include" and "including" shall be construed to be
followed by the words: "without limitation." All Exhibits referred to in this
Lease are hereby incorporated in this Lease by this reference.
34.07 CAPTIONS. The captions of this Lease are for convenience and
reference only and in no way affect this Lease.
34.08 CUMULATIVE REMEDIES. The remedies to which either party may resort
under this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which such party may lawfully be entitled
in the event of any breach or threatened breach by the other party of any
provision of this Lease.
34.09 RIGHT OF INJUNCTION. In the event of a breach by either party
of any of its obligations under this Lease, the other party shall have the right
to obtain an injunction, in addition to the rights and remedies provided for
under this Lease.
34.10 ENTIRE AGREEMENT. This Lease contains all the terms, covenants and
conditions relating to Tenant's leasing of the Premises.
34.11 AMENDMENT. Any modification or amendment to this Lease must be in
writing signed by Landlord and Tenant. Modifications or amendments of this Lease
executed by either party may be exchanged and delivered by facsimile
transmission, and shall be effective upon such transmission. The parties shall
promptly exchange original signature counterparts of amendments executed by
either party and initially exchanged and delivered by facsimile transmission.
34.12 PARTIAL INVALIDITY. If any term or provision of this Lease or
the application of such term or provision to any party or circumstance shall to
any extent be invalid or unenforceable, then the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected by such
invalidity, and each remaining term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
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34.13 SUCCESSORS AND ASSIGNS. This Lease shall bind and benefit
Landlord and Tenant and their successors and assigns, but the foregoing shall
not limit or supersede any transfer restrictions contained in this Lease.
34.14 GOVERNING LAW. This Lease and its interpretation and
performance shall be governed, construed and regulated by the laws of the State,
without regard to principles of conflict of laws.
34.15 OBLIGATION TO PERFORM. Wherever this Lease requires either
party to perform any obligation, such party shall be entitled to discharge such
obligation by causing it to be performed by some other person, but the foregoing
shall in no way limit, restrict or excuse Landlord's or Tenant's obligations
under this Lease or the restrictions on assignment, conveyance or transfer
contained in this Lease.
34.16 COUNTERPARTS. This Lease may be executed in counterparts.
34.17 TIME PERIODS. Whenever this Lease requires either party to perform
within a specified period, if the last day of such period is not a Business Day,
then the period shall be deemed extended through the close of business on the
first Business Day following such period as initially specified. This 34.17
shall in no event delay or defer the effective date of any Rent adjustment or
the commencement of any period with respect to which interest on a payment shall
accrue.
34.18 ARBITRATION PROCEDURES. Upon the occurrence of any disputed claim of
Non-Monetary Default or a Monetary Default involving the calculations of
Percentage Rent, either party to this Lease may elect to have such dispute
submitted to binding arbitration under this Section 34.18, by delivery to the
other party of a Notice of intent to invoke arbitration. If any matter is
required to be arbitrated pursuant to this Section 34.18, such arbitration shall
be conducted as follows:
(a) The parties shall jointly select a mutually acceptable Qualified
Arbitrator. If the parties are unable to agree upon the designation of a
person as arbitrator, then either Tenant or Landlord or both parties may in
writing request the American Arbitration Association ("AAA") to appoint a
Qualified Arbitrator. The Arbitrator selected by AAA will not be a
resident of the Parish.
(b) Any arbitration hearing shall be held at a place in Shreveport,
Louisiana acceptable to the arbitrator.
(c) Upon appointment, the arbitrator shall settle disputes arising
from the Default giving rise to arbitration in accordance with the
Louisiana General Arbitration Act, applicable laws and the Commercial Rules
of the American Arbitration Act and the Commercial Rules of the American
Arbitration Association, to the extent such rules do not conflict with the
terms of such act and the terms hereof. The decision of the arbitrator
shall
54
be binding upon the parties, and may be enforced in any court of competent
jurisdiction. Tenant and Landlord, respectively, shall bear their own legal
fees and other costs incurred in presenting their respective cases. The
charges and expenses of the arbitrator shall be paid by the losing party or
allocated by the arbitrator if the result is mixed.
(d) The arbitration shall commence within ten days after the
arbitrator is selected. In fulfilling any arbitration duties, the
arbitrator may consider such matters as in the opinion of the arbitrator
are necessary or helpful to make a proper evaluation. Additionally, the
arbitrator may consult with and engage disinterested third parties,
including, without limitation, engineers, attorneys, accountants and
consultants, to advise the arbitrator.
(e) If any arbitrator selected hereunder should die, resign or be
unable to perform his duties hereunder, the parties or the American
Arbitration Association shall select a replacement arbitrator. The
aforesaid procedure shall be followed from time to time as necessary.
(f) Arbitration proceedings shall be closed and judgment issued within
one hundred eighty (180) days of the arbitrator's appointment, unless the
period is extended by agreement of both Tenant and Landlord.
34.19 DOCKSIDE CASINO. If subsequent to the execution of this Lease, a
dockside casino is permitted under applicable Law, Tenant may propose to
Landlord the substitution of a dockside casino for any Riverboat Casino
operating from the Premises or the addition of a dockside casino. Such proposal
shall be in writing and shall include plans and specifications for the dockside
casino. Landlord will have thirty (30) days to review the proposal and give
Tenant a Notice approving or disapproving the substitution or deletion. If
approved, the substituted or additional dockside casino shall be deemed to be a
Riverboat Casino for all purposes of this Lease and this Lease shall continue in
effect as originally written, subject only to the changes approved by Landlord.
As used herein, "dockside" means a casino operation on a vessel, boat, barge or
other floating structure moored to a dock.
34.20 PROHIBITED PERSONS. Landlord shall provide Tenant at least twenty
(20) days' prior Notice of any proposed transfer of any interest in the Fee
Estate, together with such documentation and information regarding such transfer
and the proposed transferee as Tenant shall reasonably request, to enable Tenant
to confirm that the proposed transferee is not a Prohibited Person. Landlord
shall not transfer any interest in the Fee Estate to any Prohibited Person
without the prior written consent of Tenant.
34.21 SIGNS. Subject to approval by the City of Shreveport of design and
structure and in accordance with applicable city ordinances, Landlord shall
permit Tenant to place large full-colored directional and promotional signage on
land owned or controlled by Landlord at key downtown entry locations and to
enlarge and modify existing signage on Spring Street. Landlord shall use its
good offices to assist Tenant in obtaining from other state or federal
governmental entities any permits or
55
approvals required for the placement of such signs at such locations, including
locations on state or interstate highways approaching Shreveport.
34.22 TAXES, PAYMENTS AND SERVICES.
(a) TAXES AND ASSESSMENTS. Landlord shall levy taxes and assessments
on Tenant, each Subtenant and the Premises at rates and in a manner no less
favorable to Tenant, such Subtenant and the Premises than the rates and
manners applied by Landlord to other persons and property.
(b) ADMISSION FEES. Landlord shall levy Admission Fees on Riverboat
Casino businesses owned or operated by Tenant or any Subtenant at rates and
in a manner no less favorable to Tenant and such Subtenant than the rates
and manners applied by Landlord to other persons or entities that own or
operate Riverboat Casinos located within the City of Shreveport.
(c) IN LIEU PAYMENTS. The combination of (1) the method used to
determine payments under Section 34.23(b)(i) and (2) the method used to
determine Rent due under this Lease shall be no less favorable to Tenant
from a monetary perspective than the combination of such methods used to
determine amounts payable as Rent and In Lieu Payments to Landlord by any
other persons or entities that own or operate one or more Riverboat
Casino/hotel operations located within the City of Shreveport. The agreed
upon test to make such "no less favorable determination" is the application
of the Rent and In Lieu Payment (or their equivalent) calculation methods
applicable to other persons or entities that own or operate one or more
Riverboat Casino/hotel operations located within the City of Shreveport to
Tenant in order to determine the hypothetical Rent and In Lieu Payments
that would be due Landlord from Tenant under such calculation methods;
provided, however, Tenant agrees and acknowledges that its payment to
Landlord of the amounts described in Section 34.23(b)(i) in an amount up to
.025% greater than that paid by other persons or entities that own or
operate one or more Riverboat Casino/hotel operations located within the
City of Shreveport does not constitute a "less favorable determination"
(the "Acceptable Payment Discrepancy"). If the application of such methods
to Tenant results in a lower total dollar amount due Landlord from Tenant
(other than solely as a result of the Acceptable Payment Discrepancy), then
Landlord shall only be entitled to collect such lower total dollar amount
from Tenant and Tenant shall only be obligated to pay such lower total
dollar amount to Landlord. In the event a Riverboat Casino/hotel operator
does not lease City-owned land for its operation, only In Lieu Payments
shall be considered for purposes of the "no less favorable
determination"related to such Riverboat Casino/hotel operator.
(d) COURTESIES AND SERVICES. Landlord shall extend to the operator
of any Riverboat Casino berthed at the Premises, whether Tenant or a
Subtenant, all courtesies and municipal services extended to any other
operator of a Riverboat Casino in the City of Shreveport on terms and
conditions no less favorable than those afforded such other operator.
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34.23 RIVERBOAT CASINO ADMISSION FEE.
(a) PROHIBITION ON STATUTORY ADMISSION FEE.
(i) PROHIBITION. Except as provided in Section 34.23(a)(ii),
from and after the Commencement Date and unless and until the In Lieu
Payment Termination Date has occurred, Landlord shall not levy any
Admission Fee with respect to any Riverboat Casino located at the Premises.
(ii) EXCEPTION. Landlord may levy an Admission Fee that is a
percentage of Net Gaming Proceeds; provided, however, that any such
Admission Fee shall not exceed, for any period, the maximum sum of In Lieu
Payments that would be payable for such period if such Admission Fee were
not levied. In the event of a breach of this Section 34.23(a)(ii), Tenant
shall be entitled to reduce its payment of Rent under this Lease by the
amount that any such Admission Fee exceeds the maximum sum of In Lieu
Payments that would be payable for such period if such Admission Fee were
not levied.
(b) PAYMENTS IN LIEU OF ADMISSION FEE.
(i) PAYMENTS TO LANDLORD. Subject to Section 34.23(d), Tenant
shall make a payment in lieu of Admission Fees (an "In Lieu Payment")
to Landlord for each month or partial month commencing on the Opening
Date and thereafter during the Term for each Riverboat Casino located
at the Premises and operated by Tenant. The amount of such In Lieu
Payment shall be determined in accordance with Section 34.22(c), but
shall in no event exceed 3.225% of Net Gaming Proceeds of such
Riverboat Casino for such month or partial month.
(ii) PAYMENTS TO BOSSIER PARISH SCHOOL BOARD. Subject to Section
34.23(d), Tenant shall make an In Lieu Payment to the Bossier Parish
School Board for each month or partial month commencing on the Opening
Date and thereafter during the Term for each Riverboat Casino located
at the Premises and operated by Tenant in an amount equal to 15% of
5/6th's of 4.3% of Net Gaming Proceeds.
(iii) TIME OF PAYMENTS. The In Lieu Payments for any month or
partial month shall be due on or before the 15th day of the next
succeeding month.
(c) TENANT'S ELECTION. Tenant may elect to terminate its obligation
to pay In Lieu Payments effective as of any date (the "In Lieu Payment
Termination Date") that is not less than two (2) years after the Opening
Date by giving Landlord a Notice of such election that designates the In
Lieu Payment Termination Date and that is given not less than ninety (90)
days before the In Lieu Payment Termination Date. Such election may be
made only one time. After the In Lieu Payment Termination Date, In Lieu
Payments shall no longer accrue or be payable. As provided in Section
34.23(a)(i), Landlord may levy an Admission Fee for any period after the In
Lieu Payment Termination Date.
57
(d) REDUCTION OF IN LIEU PAYMENTS. The In Lieu Payments for any month
shall be reduced by the amount of any Admission Fees paid by Tenant for
such month with respect to any Riverboat Casino located at the Premises.
(e) SWEPCO PAYMENTS. Amounts payable under Section 34.23(b)(i) hereof
with respect to any month shall be reduced by the amount of any credits
available to Tenant under Section 34.29 hereof.
(f) RENEGOTIATION. Upon (i) the expiration date of the existing
agreement between the City of Bossier City and Horseshoe Casino relating to
payments by the Horseshoe Casino in lieu of Admission Fees, (ii) the tenth
anniversary of such date and (iii) after each succeeding period of ten (10)
years during the Term, upon request by either party hereto, Landlord and
Tenant will enter into good faith negotiations concerning modifications to
the amount of payments required under Section 34.23(b) during the
succeeding ten-year period; provided, however, that the amount payable by
Tenant during any such ten-year period shall not exceed 105% of the amounts
paid by Tenant during the preceding ten-year period.
(g) AGREED DAMAGES. If Landlord levies any Admission Fee except as
permitted under Section 34.23(a), then, in addition to any other remedies
that may be available to Tenant for breach of Section 34.23(a), Tenant
shall be entitled to receive from Landlord and Landlord shall be obligated
to pay to Tenant on the last day of each month with respect to which such
Admission Fee is levied the amount by which such Admission Fee exceeds the
In Lieu Payments that would otherwise be payable under Section 34.23(b) for
such month. Tenant may set off any payment due and payable by Tenant to
Landlord under this Lease against any amount due and payable by Landlord to
Tenant under this Section 34.23(g)
(h) OTHER JURISDICTIONS. If any entity other than Landlord, the
Bossier Parish Policy Jury or the Xxxxxx Xxxx Xxxxx Youth Shelter levies or
is deemed to be entitled to any Admission Fee with respect to any Riverboat
Casino located at the Premises and operated by Tenant, then Landlord shall
reimburse Tenant for one-half of the amount of each payment made by Tenant
thereunder within twenty (20) days after such payment is made. If the
Bossier Parish Policy Jury and the Xxxxxx Xxxx Xxxxx Youth Shelter levy or
are deemed to be entitled to any Admission Fee with respect to any
Riverboat Casino located at the Premises and operated by Tenant and the
amount of such Admission Fee levied by the Xxxxxx Xxxx Xxxxx Youth Shelter
or to which the Xxxxxx Xxxx Xxxxx Youth Shelter is entitled exceeds an
initial payment of $50,000 on or prior to the Opening Date and annual
payments thereafter of $50,000, then Landlord shall reimburse Tenant for
one-half of the amount of such excess payment made by Tenant thereunder
within twenty (20) days after such payment is made. Tenant may set off any
payment due and payable by Tenant to Landlord under this Lease against any
amount due and payable by Landlord to Tenant under this Section 34.23(h).
58
34.24 HOTEL ROOM BLOCKAGE POLICY. The Hotel shall be operated subject
to the following room blockage policy: (a) 25% of rentable rooms shall be
reserved for convention business until six months before the scheduled opening
date of the convention; (b) within such six-month period all rooms will be
available on a first come, first served basis; and (c) the Hotel shall be
required to hold reservations made for convention purposes within thirty (30)
days of the reserved date only with a guaranteed reservation.
34.25 LANDLORD'S STATUS. This Lease governs the respective rights
and obligations of Landlord and Tenant under landlord-tenant relationship
created hereby and does not limit the exercise by the City of Shreveport of its
separate governmental authority or police powers.
34.26 EMPLOYEE OFF-SITE PARKING. Tenant shall establish a policy
requiring employees of Tenant to park in designated areas during the hours of
their employment. Such designated areas may include any parking garages
constructed by Tenant, as well as any off-site parking areas provided by Tenant.
Such policy will vigorously encourage employees not to park in parking areas
owned by the City of Shreveport and not controlled by Tenant. Tenant will
furnish Landlord a copy of such policy and an action plan for control and
enforcement of such policy.
34.27 REFERENCES TO SECTIONS, ARTICLES AND EXHIBITS. References in
this Lease to Sections, Articles and Exhibits are, unless otherwise indicated,
references to the Sections, Articles and Exhibits of this Lease.
34.28 XXXXXXXX AND CIVIC THEATER PARKING. Tenant agrees to allocate
and reserve (i) at all times no less than 15 parking spaces on the Expansion
Parcel or the South Parking Facility for employees of the Xxxxxxxx Center and
(ii) during events at the Xxxxxxxx Center, no less than 100 spaces for patrons
of such events at the Barwell Center. During periods that symphonies or operas
are conducted at the Civic Theater, Tenant shall provide up to fifteen (15)
handicapped parking spaces on the Expansion Parcel or the South Parking Facility
to handicapped patrons attending such events.
34.29 SWEPCO SERVITUDE. In further consideration for the lease to
Tenant of the Premises for the period commencing on the Construction
Commencement Date and continuing throughout the Term, Tenant hereby agrees to
pay to the Landlord on the Construction Commencement Date an amount equal to the
lesser of (i) $600,000 and (ii) one-third (_) of the documented, actual out-of-
pocket costs to the Landlord to relocate to a different location the SWEPCO
servitude currently existing along the bank of the Red River, provided, however,
in the event this Lease is terminated for any reason prior to the Construction
Commencement Date, Tenant shall be, and is hereby, released of its obligations
to make the payment to Landlord contemplated by this Section 34.29. Tenant
shall receive a credit against In Lieu Payments payable on and after the Opening
Date in an amount equal to the payment made by Tenant to Landlord pursuant to
this Section 34.29.
59
ARTICLE XXXV - STIPULATION AS TO VENUE IN CADDO PARISH
For purposes of any litigation arising under or occurring as the
result of this Lease, or involving any interpretation of this Lease or the
declaration of a party's rights or obligations hereunder, the parties hereby
agree and stipulate to venue for such actions in the First Judicial District
Court in and for Caddo Parish, Louisiana, or, in the event federal jurisdiction
is available, the Shreveport Division of the United States District Court for
the Western District of Louisiana.
ARTICLE XXXVI - NOTICES
All Notices shall be in writing and shall be addressed to Landlord and
Tenant as set forth below. Notices shall be (i) delivered by Federal Express or
other courier service to the addresses set forth below, in which case they shall
be deemed delivered on the date of delivery (or when delivery has been attempted
twice, as evidenced by the written report of the courier service) to the
address(es) set forth below; (ii) sent by certified mail, return receipt
requested, in which case they shall be deemed delivered three Business Days
after deposit in the United States mail, provided that no postal strike is then
in effect; or (iii) transmitted by facsimile transmission (promptly followed by
delivery under option "i" or "ii"), in which case they shall be deemed delivered
the first Business Day after delivery has been electronically confirmed by the
recipient's facsimile machine, as evidenced by the written confirmation produced
by the sender's facsimile machine. No Notice shall be effective unless and
until a copy of such Notice has been delivered to the intended recipient's
Mortgagee(s), to the extent such delivery is otherwise required by this Lease.
Either party may change its address, its facsimile machine number, or the name
and address of its attorneys by giving Notice in compliance with this Lease.
Notice of such a change shall be effective only upon receipt. Notice given on
behalf of a party by any attorney purporting to represent a party shall
constitute Notice by such party if the attorney is, in fact, authorized to
represent such party. The addresses and facsimile machine numbers of the
parties are:
Landlord: Office of the Mayor
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Mayor
Fax: (000) 000-0000
with a copy to: Office of City Attorney
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: City Attorney
Fax: (000) 000-0000
60
Tenant: QNOV
_HWCC-Louisiana, Inc.
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
61
IN WITNESS WHEREOF, Landlord and Tenant have duly executed and delivered
this Lease as of the Commencement Date.
CITY OF SHREVEPORT
By: /s/ XXXXX XXXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Mayor
QNOV
By: Sodak-Louisiana, L.L.C., its general partner
By: /s/ XXXX X. XXXXX
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Manager
By: HWCC-Louisiana, Inc., its general partner
By: /s/ XXXX X. XXXXX
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: President
62
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF CADDO
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified
and for the aforesaid Parish and State, personally came and appeared Xxxxx
Xxxxxxxxx to me known, who declared and acknowledged to me, Notary, and the
undersigned competent witnesses that he is the Mayor of the City of Shreveport,
and that he is authorized to execute and deliver the foregoing Ground Lease on
behalf of the City of Shreveport, and that he signed and executed the foregoing
Ground Lease, as the free and voluntary act and deed of said entity, for and on
behalf of said entity and for the objects and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and the
said appearer and the said witnesses have hereunto affixed their signatures this
19th day of May, 1999.
WITNESSES:
/s/ XXXXX XXXXXXXXX
____________________________
XXXXX XXXXXXXXX
____________________________
NOTARY PUBLIC
My Commission expires:________.
ACKNOWLEDGMENT
STATE OF ______________
COUNTY OF ____________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified
and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the ___________ of Sodak-
Louisiana, L.L.C., and that he is authorized to execute and deliver the
foregoing Ground Lease on behalf of Sodak-Louisiana, L.L.C. acting in its
capacity as a general partner of QNOV, and that he signed and executed the
foregoing Ground Lease, as the free and voluntary act and deed of said entity
acting in its capacity as a general partner of QNOV, for and on behalf of said
entity acting in its capacity as a general partner of QNOV and for the objects
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and the
said appearer and the said witnesses have hereunto affixed their signatures this
____ day of ___________________, 1999.
WITNESSES:
____________________________
_________________________
____________________________
NOTARY PUBLIC
My Commission expires:________.
ACKNOWLEDGMENT
STATE OF ______________
COUNTY OF ____________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified
and for the aforesaid County and State, personally came and appeared
________________, to me known, who declared and acknowledged to me, Notary, and
the undersigned competent witnesses that he is the ___________ of HWCC-
Louisiana, L.L.C., and that he is authorized to execute and deliver the
foregoing Ground Lease on behalf of HWCC-Louisiana, L.L.C. acting in its
capacity as a general partner of QNOV, and that he signed and executed the
foregoing Ground Lease, as the free and voluntary act and deed of said entity
acting in its capacity as a general partner of QNOV, for and on behalf of said
entity acting in its capacity as a general partner of QNOV and for the objects
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal and the
said appearer and the said witnesses have hereunto affixed their signatures this
____ day of ___________________, 1999.
WITNESSES:
____________________________
_________________________
____________________________
NOTARY PUBLIC
My Commission expires:________.
