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EXHIBIT 10.4
BERTH AND SUBLEASE AGREEMENT
THIS BERTH AND SUBLEASE AGREEMENT ("Agreement") is made and entered into
effective the 23rd day of June, 1999 (the "Effective Date") by and between SOUTH
PADRE ISLAND FISHING CENTER JOINT VENTURE, a Texas joint venture ("Sublessor")
whose address is Xxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxx 00000, and CSL
DEVELOPMENT CORPORATION ("Sublessee"), a Delaware corporation whose address is
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx 00000.
PREAMBLE
Pursuant to that Lease Agreement LC No. 94-027 (the "Ground Lease") dated as of
June 30, 1994, by and between the State of Texas, (the "State"), as Lessor, and
Sublessor, as Lessee, Sublessor has a leasehold interest in the premises
described in Exhibit "A" thereto (the "Premises").
Approximately 17.52 acres of the Premises is comprised of submerged land on
which Sublessor has constructed a pier and other improvements (the "Pier").
Subject to the terms and conditions of the Lease and the conditions set forth
herein, Sublessor desires to sublease to Sublessee, and Sublessee desires to
sublease from Sublessor, a berth and appurtenant rights.
Now, therefore, Sublessor and Sublessee agree as follows:
1. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor the following, all of which are located on the Premises
in Cameron County, Texas:
1.1 Berth. The exclusive right to a berth for one (1) cruise ship
(herein the "Cruise Ship"), initially to be the "M/V
Entertainer." The berth is located at the end of the Pier, as
more particularly described on Exhibit "A" attached hereto and
initialed by Sublessor and Sublessee for identification
(hereinafter, the "Plat").
1.2 Ticket Counter. The non-exclusive right to use of the area
designated "Ticket Counter" on the Plat for the sale of Cruise
Ship tickets.
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1.3 Modular Office. The non-exclusive right to use the area
designated "Office" on the Plat for non-retail general offices
purposes and, subject to compliance with applicable provisions
of the Ground Lease (including, without limitation, Article VI
thereof), to construct improvements thereon.
1.4 Parking. The non-exclusive right to use a maximum of two
hundred (200) parking spaces in the area designated as
"Parking" on the Plat for free parking of passenger vehicles
operated by Sublessee's employee and customers; provided,
Sublessor shall have no obligation to provide more than fifty
(50) parking spaces for such use until expiration of the
thirtieth (30th) day after the Sublessor's receipt of the
Security Deposit (as defined in Section 4.3 below).
Unless referred to individually, the foregoing are hereinafter referred to,
collectively, as the "Subleased Premises". SUBLESSEE HEREBY CONFIRMS THAT
SUBLESSEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHICAL CONDITION OF THE
SUBLEASED PREMISES AND ACCEPTS THE SAME "AS IS" IN ITS EXISTING PHYSICAL AND
TOPOGRAPHIC CONDITION. SUBLESSOR DISCLAIMS ANY AND ALL WARRANTIES OF
HABITABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE AND ANY OTHER EXPRESS OR
IMPLIED WARRANTY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. SUBLESSOR AND
SUBLESSEE HEREBY AGREE AND ACKNOWLEDGE THAT THE USE OF THE TERM "GRANT" AND/OR
"CONVEY" IN NO WAY IMPLIES THAT THIS AGREEMENT IS FREE OF LIENS, ENCUMBRANCES
AND/OR PRIOR RIGHTS. SUBLESSEE IS HEREBY PUT ON NOTICE THAT ANY PRIOR GRANT
AND/OR ENCUMBRANCE MAY BE OF RECORD AND SUBLESSEE IS ADVISED TO EXAMINE THOSE
RECORDS AND ALL OTHER LAND TITLE RECORDS IN WHICH THE SUBLEASED PREMISES ARE
LOCATED IN THE ARCHIVES AND RECORDS DIVISION OF THE TEXAS GENERAL LAND OFFICE,
0000 XXXXX XXXXXXXX XXXXXX, XXXXXX, XXXXX, 00000, AND ALL OTHER LAND TITLE
RECORDS IN WHICH THE SUBLEASED PREMISES ARE LOCATED.
2. TERM. The term of this Agreement shall be for a period commencing on the
Effective Date and terminating on the expiration of the one hundred eightieth
(180th) day after the date of the Rent Commencement Date (as hereinafter
defined), unless earlier terminated or extended as provided herein.
2.1 Failure to Obtain Permits. Notwithstanding the foregoing to
the contrary, in the event Sublessee, after diligent effort,
is unable on or before September 1, 1999, to obtain all
governmental and regulatory approvals necessary for the
operation of its Offshore Business (as defined in Section 3.2
below), then Sublessee shall have the right to terminate this
Agreement upon written notice delivered to Sublessor on or
before September 5, 1999; Sublessor shall retain all sums paid
as Rent (as
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hereinafter defined) prior to the effective date of
termination; and, thereafter, neither party shall have any
further obligations to the other except for those obligations
which accrued prior to the effective date of termination.
1.2 Future Government Regulation. In the event that, subsequent to
the Rent Commencement Date (as hereinafter defined),
governmental laws or regulations prohibit Sublessee's use of
the Subleased Premises for the purposes provided herein in
such a manner as to preclude Sublessee's operation of its
Offshore Business (i.e., docking a Cruise Ship which contains
gaming equipment and machinery to be operated elsewhere),
Sublessee may terminate this Agreement effective upon written
notice to Sublessor. In the event Sublessee terminates this
Agreement pursuant to this Section 2.2, along with its notice
of termination, Sublessee shall provide Sublessor with a copy
of the subject law(s) or regulation(s) and, upon Sublessor's
receipt of such notice, this Agreement shall terminate and
neither party shall have any further obligations to the other
except for those obligations which accrued prior to the
effective date of termination.
3. USE. The Subleased Premises may be used only for the purposes specified in
Sections 1.1 through 1.4 above, and no other.
3.1 Compliance with Laws. At all times Sublessee shall conduct its
affairs and use the Subleased Premises in accordance with the
provisions of the Ground Lease, this Agreement and all
applicable statutes, ordinances, rules and regulations. Any
breach by Sublessee of its obligations under this Agreement
shall entitle Sublessor, at its option, to terminate this
Agreement upon written notice to Sublessee as specified in
Section 14 below, or to pursue remedies available at law or in
equity. In the event Sublessor elects to terminate this
Agreement, upon Sublessor's written notice of such termination
to Sublessee, this Agreement shall terminate and neither party
shall have any further obligations to the other except for
those obligations which accrued prior to the effective date of
termination.
3.2 Offshore Business. Though the parties acknowledge that
Sublessee intends, provided appropriate governmental
authorization is obtained, to operate a day cruise casino
business on the Cruise Ship and provide on- board
entertainment, including gaming (the "Offshore Business"),
Sublessee agrees not to accept any orders for gaming
activities from the Subleased Premises and at all times to
conduct such activities at locations other than the Subleased
Premises. The parties specifically acknowledge and agree that
Sublessee shall have no right to use the Subleased Premises
for the Offshore Business and that any such use on or adjacent
to the Subleased Premises shall constitute a breach of this
Agreement for which Sublessor may terminate this Agreement
upon notice to Sublessee.
4. CONSIDERATION. Sublessee agrees to pay to Sublessor the following
consideration for use of the Subleased Premises ("Rent"):
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3.1 Rent. Commencing on the earlier to occur of (a September 1,
1999, or (b) the thirtieth (30th) day after the date Sublessee
receives all regulatory approvals required to commence
operation of the Offshore Business, or (c) the date Sublessor
departs from the Subleased Premises on its initial cruise for
the purpose of operating the Offshore Business (such date
hereinafter the "Rent Commencement Date"), Sublessee agrees to
pay to Sublessor, monthly, as "Rent" for the Subleased
Premises the greater of (1) $10,000.00 per month, or (2) a sum
per month equal to the product of One and NO/100 Dollars
($1.00) multiplied by the number of passenger cruise tickets
sold to "paying passengers" (as hereinafter defined) over and
above the number of 10,000 per month. Rent in the minimum
amount of $10,000 shall be payable each month in advance. Any
additional sums owing Sublessor as Rent shall be due and
payable on the fifteenth (15th)) day of the following month
and shall be delivered with a statement certified by an
officer of Sublessee which itemizes ticket sales for the
subject month on a per day basis. Sublessor shall be entitled,
during normal business hours, to inspect Sublessee's records
to determine appropriate accounting and remittance of Rent.
Should the Rent Commencement Date occur on a day other than
the first day of a month, Rent shall be prorated for such
month. For the purposes of this Agreement a "paying passenger"
is a person who purchases a Cruise Ship ticket for a scheduled
cruise for the purpose of engaging in Sublessee's Offshore
Business, and passengers who are given complimentary tickets
or admissions based on the volume or quality of their casino
play shall be deemed paying passengers.
4.2 Taxes and Assessments. During the term of this Agreement, the
Sublessee shall pay directly to the applicable taxing or other
authority any State or
local sales taxes or assessments which are, or may be, in
effect and applicable to Sublessee's business.
4.3 Security Deposit. On the Rent Commencement Date Sublessee
agrees to deposit with Sublessor the sum of Ten Thousand and
NO/100 Dollars ($10,000.00) (the "Security Deposit") as
security for Sublessee's faithful performance of its
obligations under this Sublease. Sublessor and Sublessee agree
that the Security Deposit may be commingled with funds of
Sublessor and Sublessor shall have no obligation or liability
for payment of interest on such deposit. Sublessee shall not
mortgage, assign, transfer or encumber the Security Deposit
without the prior written consent of Sublessor and any attempt
by Sublessee to do so shall be void, without force or effect
and shall not be binding upon Sublessor. If Sublessee fails to
pay any Rent or other amount when due and payable under this
Sublease, or fails to perform any of the terms hereof,
Sublessor may appropriate and apply or use all or any portion
of the Security Deposit for Rent payments or any other amount
then due and unpaid, for payment of any amount for which
Sublessor has become obligated as a result of Sublessee's
default or breach, and for any loss or damage sustained by
Sublessor as a result of Sublessee's default or breach, and
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Sublessor may so apply or use the Security Deposit without
prejudice to any other remedy Sublessor may have by reason of
Sublessee's default or breach. If Sublessor so uses any of the
Security Deposit, Sublessee shall, within ten (10) days after
written demand therefor, restore the Security Deposit to the
full amount originally deposited; Sublessee's failure to do so
shall constitute a default hereunder for which Sublessor shall
have the right to exercise any remedy provided for in Section
14 below. Provided Sublessee is not then in default on any of
its obligations hereunder, on the first day of the last month
of the Sublease term (or renewal period, if applicable),
Sublessor shall return the Security Deposit to Sublessee or,
if Sublessee has assigned its interest under this Sublease, to
the last assignee of Sublessee. If Sublessor sells or assigns
its interest in the Subleased Premises, Sublessor may deliver
the Security Deposit to Sublessor's successor in interest
under this Sublease and thereupon be relieved of any further
liability or obligation with respect to the Security Deposit.
5. INSURANCE. Sublessee agrees to purchase and maintain insurance coverage, and
provide certificates and renewals thereof, as required pursuant to the Ground
Lease; provided (a) all such policies shall name both the State and Sublessor as
additional insureds, and (b) Sublessee shall maintain commercial general
liability insurance and liquor liability insurance in minimum amounts of Two
Million Five Hundred Thousand and NO/100 Dollars ($2,500,000.00).
6. UTILITIES. Sublessor shall, at its expense, provide water and 000-xxxx
0-xxxxx 000XXX electrical stub-outs at the locations specified on the Plat.
Except as provided herein, Sublessor shall have no responsibility for the
provision of any utility stub-out or service, and Sublessee shall be responsible
for the payment of all electricity, water, wastewater, gas, phone and other
utility extension and service and for disposal of all trash generated at the
Subleased Premises. Trash containers shall located near the berth in a location
approved by Sublessor, shall be of a type reasonably approved by Sublessor, and
shall be screened from view. Notwithstanding any other term or provision of this
Agreement to the contrary, (a) Sublessee acknowledges and agrees that it shall
not locate or use sewage pump-out facilities on or near the Subleased Premises,
and (b) in the event Sublessee is required to extend electric utility
infrastructure beyond the location specified on the Plat, upon the first renewal
of the term of this Agreement as provided below, Sublessee shall be entitled to
a credit against Rent, not to exceed, in the aggregate $8,000.00; provided, if
Sublessee reasonably determines that the cost of any such extension shall exceed
$8,000.00, then Sublessee shall so advise Sublessor and Sublessor may elect to
either (y) undertake such work at its own cost and expense, or (z) authorize
Sublessee to expend an amount in excess of $8,000 for such work, which amount
shall also be credited against Rent until recouped.
7. CONDEMNATION. If during the term of this Agreement or any extension or
renewal thereof, all of the Subleased Premises should be taken for any public or
quasi-public use under any law, ordinance, or regulation, or by right of eminent
domain, or should be sold to the condemning authority under threat of
condemnation, this Agreement shall terminate and the
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Rent shall be abated during the unexpired portion of this Agreement, effective
as of the date of the taking of said premises by the condemning authority.
7.1 Sublessor's Right to Restore. If less than all of the
Subleased Premises shall be taken for any public or
quasi-public use under any law, ordinance or regulation, or by
right of eminent domain, or should be sold to the condemning
authority under threat of condemnation, Sublessor may elect to
terminate this Agreement or to restore the Subleased Premises
as mutually agreed between Sublessor Sublessee. In the event
this Agreement is not terminated, then Sublessor shall perform
such restoration with available condemnation proceeds within a
reasonable time of the taking., and the Rent payable during
the unexpired portion of this Agreement shall be adjusted
equitably.
7.2 Allocation of Awards. Sublessor shall be entitled to receive
and retain all proceeds payable for a taking of the leasehold
estate and improvements located on the Subleased Premises.
Sublessee shall be entitled to receive and retain any separate
awards for loss of profits and moving expenses. The
termination of this Agreement shall not affect the rights of
the respective parties to such awards.
8. ASSIGNMENT. Sublessee hereby acknowledges and agrees that it shall not have
the right to assign or sublet the Subleased Premises, whether by operation of
law or otherwise, without Sublessor's prior written consent, which consent shall
not be unreasonably withheld; provided, Sublessee may assign Sublessee's
interest in this Agreement to an Affiliate (as hereinafter defined) upon written
notice to Sublessor. For the purposes of this Agreement, "Affiliate" shall mean
and refer to an entity which is controlled by Sublessee (i.e., an entity of
which Sublessee owns at least fifty-one percent [51%] of the outstanding shares,
membership interests or otherwise of such entity), or which controls Sublessee
(i.e., an entity which owns at least fifty-one percent [51%] of Sublessee), or
which is under common control with Sublessee (such as a brother-sister
relationship). Sublessor and Sublessee acknowledge and agree that Sublessee
intends to assign this Agreement to an Affiliate to be formed under Texas law on
or before expiration of the First Renewal Period and, upon such assignment and
assumption by such Affiliate of Sublessee's obligations hereunder, Sublessee
shall be released from its obligations hereunder.
9. INDEMNIFICATION AND HOLD HARMLESS AGREEMENTS. Sublessor and Sublessee hereby
agree as follows:
9.1 Sublessee. SUBLESSEE SHALL PROTECT, DEFEND AND HOLD SUBLESSOR
AND THE STATE HARMLESS IN ACCORDANCE WITH THE TERMS OF THE
INDEMNIFICATION PROVISIONS OF THE GROUND LEASE. SUBLESSEE
AGREES TO INDEMNIFY AND HOLD SUBLESSOR AND THE STATE HARMLESS
AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, DAMAGES,
LIABILITIES AND EXPENSES
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(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT
COSTS) ASSERTED AGAINST, IMPOSED UPON OR INCURRED BY SUBLESSOR
BY REASON OF ANY VIOLATION CAUSED, SUFFERED OR PERMITTED BY
SUBLESSEE AND/OR SUBLESSEE'S OFFICERS, DIRECTORS, VENTURERS,
AGENTS, REPRESENTATIVES, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES OR INVITEES ("SUBLESSEE
REPRESENTATIVES") OF ANY OF THE TERMS, COVENANTS OR CONDITIONS
OF THE GROUND LEASE. Notwithstanding the foregoing, in no
event shall Sublessee be liable to Sublessee for any
matter relating to this Agreement in an amount in excess of
the total of all Rent paid to Sublessee hereunder. The
foregoing agreements shall survive expiration or earlier
termination of this Agreement.
9.2 Sublessor. SUBJECT TO THE PROVISIONS OF THIS AGREEMENT,
SUBLESSOR SHALL AND HEREBY DOES INDEMNIFY AND HOLD SUB-LESSEE
HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS,
DEMANDS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS)
ASSERTED AGAINST, IMPOSED UPON OR INCURRED BY SUBLESSEE BY
REASON OF ANY VIOLATION CAUSED, SUFFERED OR PERMITTED BY
SUBLESSOR, ITS OFFICERS, DIRECTORS, VENTURERS,
REPRESENTATIVES, AGENTS, SERVANTS, CONTRACTORS,
SUBCONTRACTORS, LICENSEES OR EMPLOYEES OF ANY OF THE TERMS,
COVENANTS OR CONDITIONS OF THE GROUND LEASE THAT SUBLESSEE HAS
NOT COVENANTED AND AGREED TO COMPLY WITH UNDER THE TERMS OF
THIS AGREEMENT. Notwithstanding the foregoing, in no event
shall Sublessor be liable to Sublessee or any third party for
any matter relating to this Agreement in an amount in excess
of the total of all Rent paid to Sublessor hereunder. The
foregoing agreements shall survive expiration or earlier
termination of this Agreement.
10. SUBLESSOR'S OBLIGATIONS.
10.1 Unobstructed Access. Sublessor shall provide unobstructed
access to the Subleased Premises from the upland portion of
the Premises all times for the Cruise Ship at its berth and
for Sublessee's vendors, employees and passengers. Sublessor
and Sublessee acknowledge and agree that Sublessor shall have
no obligation to police navigable waters or to dredge the
channel in which Sublessee which access the Pier.
10.2 Sublessor's Maintenance. Except for damage occasioned by
Sublessee and/or Sublessee's Representatives, Sublessor shall
maintain the Leased Premises
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(exclusive of Sublessee's improvements and fixtures thereto)
in a safe and usable condition, including, but not limited to,
replacement of damaged and deteriorated dock and pilings.
Sublessor shall have no further repair and maintenance
obligations hereunder.
10.3 Right to Sublease. Sublessor represents and warrants to
Sublessee that it has the right to sublease the Subleased
Premises for the purposes set forth approval is required to
grant Sublessee the right to use the Subleased Premises as
provided herein.
11. SUBLESSEE'S OBLIGATIONS. Sublessee hereby acknowledges and agrees to use the
Subleased Premises pursuant to the terms of the Ground Lease, this Agreement and
in accordance with all applicable laws, ordinances, rules and regulations, and
reasonable rules and regulations imposed by the State and/or Sublessor from time
to time.
11.1 No Waste. Sublessee hereby acknowledges and agrees it shall
not commit, or suffer to be committed, any waste on the
Subleased Premises nor shall it maintain, or permit the
maintenance or commission
of, any nuisance on the Subleased Premises.
11.2 Maintenance. Except as otherwise provided herein, Sublessee
hereby acknowledges and agrees to keep and maintain the
Subleased Premises and the Cruise Ship in good condition and
repair, as the same existed on the Effective Date, reasonable
wear and tear excepted. Damage caused by Sublessee or
Sublessee's Representatives shall be repaired at Sublessee's
sole expense.
11.3 Alterations. Sublessee hereby acknowledges and agrees not to
make any alterations or changes in the Subleased Premises
without the express, prior written consent of Sublessor, and
all such alterations or changes shall be made in conformance
with the provisions of the Ground Lease.
11.4 Conduct. Sublessee shall be responsible for the conduct and
acts of Sublessee and Sublessee's Representatives on the
Subleased Premises at all times during term of this Agreement,
and shall indemnify and hold Sublessor harmless therefrom as
provided herein.
12. INSPECTION BY SUBLESSOR. Sublessee hereby acknowledges and agrees that the
State, Sublessor and/or their respective agents or representatives may enter
into and upon the Subleased Premises (but not the Cruise Ship) at all reasonable
times for the purpose of inspection, making repairs or alterations.
13. OPTION TO RENEW. Provided Sublessee has fully performed all of its
obligations hereunder, at the option of Sublessee, this Agreement may be renewed
for two (2) additional
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terms of five (5) years each. Renewal shall be by written notice delivered, with
respect to the first renewal period, no later than thirty (30) days prior to
expiration of the initial term (such period, the "First Notice Period") and,
with respect to the second renewal period, no later than sixty (60) days prior
to expiration of the first renewal period. Each renewal term, if any, shall be
referred to as a "renewal period". If Sublessee fails to timely exercise any
renewal, such renewal and all subsequent renewal options shall lapse and be of
no further force and effect.
13.1 Additional Premises. Subject to Sublessor's an Sublessee's
mutual agreement reduced to writing on or before expiration of
the First Notice Period (which agreement shall be subject to
an agreed joint use and/or reciprocal easement agreement, a
space/use plan and the approval of third parties, as
applicable), commencing with the first renewal period, the
Subleased Premises as defined in Section 1 above can be
expanded to grant to Sublessee the non-exclusive use and
occupancy of certain vertical improvements then located on the
Premises and the exclusive right to use and occupancy, as
applicable, of the area on which the business known as
"Hookers is located as of the Effective Date, all furniture,
fixtures and equipment located therein and a license to use
the name "Hookers" for Sublessee's business at such location.
13.2 Renewal Period Terms. Commencing on the first day of the first
renewal period, Sublessee shall pay Sublessor monthly Rent
equal to the greater of (1) $10,000.00 per month, or (2) a sum
per month equal to the product of One and 75/100 Dollars
($1.75) multiplied by the number of passenger cruise tickets
sold to paying passengers over and above the number of 10,000
per month. Commencing on the first day of the second renewal
period, Sublessee shall pay Sublessor monthly Rent equal to
the greater of (1) $10,000.00 per month, or (2) a sum per
month equal to the product of Two and NO/100 Dollars ($2.00)
multiplied by the number of passenger cruise tickets sold to
paying passengers over and above the number of 10,000 per
month. product of Two and NO/100 Dollars ($2.00) multiplied by
the number of passenger cruise tickets issued over and above
the number of 10,000 per month. Except as set forth above and
in any amendment to this Agreement, all other terms and
provisions shall remain in full force and effect during the
renewal period(s).
13.3 Other Provisions. Except as otherwise provided in Sections
13.1 and 13.2, all other terms and provisions of this
Agreement shall continue in full force and effect during each
renewal period.
14. DEFAULTS AND REMEDIES. If Sublessee shall allow the Rent to be in arrears
more than five (5) days after the date due, or shall any other default on the
part of the Sublessee continue for five (5) days after delivery of written
notice from Sublessor of such element of default, or should any other person
than Sublessee secure possession of the Subleased Premises, or any part thereof,
by reason of receivership, bankruptcy proceedings or other operation of law in
any
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manner whatsoever, Sublessor may, at its discretion, without notice to
Sublessee, declare Sublessor in default of this Agreement and either (a)
terminate this Agreement, or (b) enter onto and take possession of the Subleased
Premises and remove all persons and property therefrom without being deemed
guilty of any manner of trespass, and re-let the Subleased Premises or any part
thereof, for all or any part of the remainder of the term. In the event
Sublessor exercises its option to take possession, and should Sublessor be
unable to re-let after reasonable efforts to do so, or should such monthly Rent
be less than the Rent Sublessee was obligated to pay hereunder, then Sublessee
shall pay the amount of such deficiency to Sublessor plus any applicable costs
of reletting, collections and other reasonable expenses incurred in enforcing
Sublessor's rights hereunder. In no event shall Sublessor be obligated to find a
new tenant on behalf of Sublessee. In the event the Rent is not paid within the
five (5) days after the date due, a late charge (which charge constitutes a
penalty and not interest) of one and one-half percent (1-1/2%) per month on the
unpaid balance shall be applicable.
14.1 No Cruise Ship Lien. The Cruise Ship will be operated pursuant
to a Charter Agreement which provides, among other things,
that during the charter period, neither the Operator, nor its
agents, nor the Master of the Vessel, shall have any right,
power, or authority to create, incur or permit to be imposed
upon the Cruise Ship any liens whatsoever. Accordingly,
Sublessor acknowledges that this Agreement is entered into on
the credit of the Sublessee and not on the credit of the
Cruise Ship or her owner or mortgagee and that the Sublessor
claims no maritime or other lien against the Cruise Ship, and
therefore waives any liens, whether statutory landlord liens
or otherwise, against the Cruise Ship that it currently has or
may have in the future or that may arise from operation of law
or custom, usage and practice.
15. SIGNAGE. Upon Sublessee's receipt of all approvals required to operate its
Offshore Business and subject to Sublessor's approval of location and content,
which consent shall not be unreasonably withheld or delayed, Sublessee will be
permitted, at its sole expense, to erect signs upon the Subleased Premises.
16. JOINT USE AREAS. Subject to Sublessor's prior written consent with respect
to location, improvements, if any, to be located thereon and Sublessee's
provision of insurance in favor of the State and Sublessor, Sublessee may use
certain areas of the Pier as passenger waiting areas and for other purposes
(each a "Joint Use Area" and, collectively, the "Joint Use Areas"). Each Joint
Use Area shall be clearly marked and, subject to Sublessee's rights pursuant to
Section 13.1 at the time of renewal, subject to pre-existing uses. Such use
shall additionally be subject to the rights of the general public as provided in
the Ground Lease. At Sublessor's option exercised prior to expiration or
termination of this Agreement, all permanent improvements erected or installed
by Sublessee within the Joint Use Areas shall become the property of Sublessor.
17. EXCLUSIVITY. Provided Sublessee is not in default of this Agreement, during
the term of this Agreement, Sublessor agrees not to sublease a dock or berth
space for use by any vessel
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which conducts one day gaming cruises, "Cruises to Nowhere", river boat
gambling, or similar activities.
18. INGRESS/EGRESS. Sublessor may relocate required parking hereunder to another
location within the Subdivision (as hereinafter defined) and/or ingress and
egress points to the Subleased Premises so long as the required number of spaces
are provided in similar or better facilities. For the purposes of this section
"Subdivision" shall mean and refer to approximately 18.587 acres of land legally
described as Xxx 0, Xxxxx 0 XXXXXX Xxxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx.
19. NOTICES. All notices provided to be given under this Agreement shall be
given by certified or registered mail, addressed to the proper party, at the
following addresses:
Sublessor: South Padre Island Fishing Center Joint Venture
Xxx Xxxxx Xxxx.
Xxxxx Xxxxx Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx
With a copy to:
Xxxxxxx X. XxXxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Sublessee: CSL Development Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
20. HOLDOVER. If Sublessee continues in possession of the Subleased Premises
after the expiration of this Agreement and, therefore, holds over after the
expiration of this Sublease, Sublessee will be deemed to be occupying the
Subleased Premises on a month-to-month tenancy basis. Sublessee will be subject
to all the terms and conditions of this Agreement, except that all Rent and
other sums payable to Sublessor by Sublessee shall be increased one hundred
twenty-five percent (125%) as liquidated damages for the hold- over period
(provided, in the event Sublessee's holdover causes Sublessor to holdover
pursuant to the Ground Lease, then, notwithstanding the foregoing to the
contrary, Sublessee shall pay all of Sublessor's costs under the Ground Lease,
including, without limitation, holdover rent at the rate of two hundred percent
[200%]). The above- described tenancy from month-to-month may be terminated by
either party upon thirty (30) days written notice to the other.
21. INDEPENDENT OBLIGATIONS. The obligation of Sublessee to pay all Rent and
other sums under this Agreement and the obligation of Sublessee to perform
Sublessee's other covenants
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and duties under this Agreement constitute independent, unconditional
obligations to be performed at all times required under this Agreement, except
when an abatement or reduction is expressly provided for in this Agreement.
Sublessee waives and relinquishes any right to assert, either as a claim or as a
defense, that Sublessor is bound to perform or is liable for the nonperformance
of any implied covenant or implied duty of Sublessor not expressly set forth in
this Agreement.
22. SPECIAL DAMAGES. Under no circumstances whatsoever shall Sublessor or
Sublessee ever be liable for consequential damages or special damages. The term
"Sublessor" shall mean only the Lessee of the Premises, and in the event of such
Lessee's transfer of its interest in the Subleased Premises, it shall thereupon
be released and discharged from all covenants and obligations shall be binding
during the term of this Agreement
23. PERFORMANCE OF OBLIGATIONS. All monetary obligations of Sublessor and
Sublessee are performable exclusively in Cameron County, Texas (including,
without limitation, any monetary obligation of Sublessor or Sublessee for
damages for any breach of the respective covenants, duties or obligations of
Sublessor or Sublessee under this Agreement).
24. PROHIBITED NAME. Sublessor and Sublessee acknowledge and agree that
Sublessee is prohibited from naming or referring to the Subleased Premises, any
portion thereof, any business operated thereon and/or the Cruise Ship as "Queen
Isabella", "Old Queen Isabella" and/or any similar designation.
25. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns when permitted by
this Agreement.
26. SEVERABILITY. The invalidity of any clause or portion of this Agreement
shall not affect any other provisions thereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions had never been
contained therein.
27. AMENDMENT. No amendment, modification or alteration of the terms hereof
shall be binding unless the same be in writing, dated subsequent to the date
hereof, and duly executed by the parties hereto.
28. RIGHTS CUMULATIVE. Time is of the essence pursuant to this Agreement. The
rights and remedies provided by this Agreement are cumulative and the use of any
one right or remedy by either party shall not preclude or waive its right to use
any or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may be by law, statute, ordinance or otherwise.
29. NO WAIVER. No waiver by the parties hereto of any default or breach of any
term, condition or covenant of this Agreement shall be deemed to be a waiver of
any other breach of the same or any other term, condition or covenant contained
herein.
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30. RECORDING. Neither this Sublease nor any memorandum hereof may be recorded
by Sublessee among the land records of the jurisdiction in which the Subleased
Premises are located or in any other place of public record without the express
written consent of Sublessor.
31. ATTORNEY'S FEES. In the event Sublessor or Sublessee breach any of the terms
of this Agreement whereby the party not in default employs attorneys to protect
or enforce their rights hereunder, subject to the terms hereof, the prevailing
party shall be entitled to recover reasonable costs, including reasonable
attorney's fees, through the appellate level of court. This Agreement shall be
construed under and in accordance with the laws of the State of Texas. Venue
shall be in Cameron County.
32. FORCE MAJEURE. Neither Sublessor nor Sublessee shall be required to perform
any term, condition or covenant in this Agreement so long as such performance is
delayed or prevented by any acts of God, strikes, lockouts, material or labor
restrictions by any governmental authority, civil riot, floods and any other
cause not reasonably within the control of Sublessor or Sublessee and which by
the exercise of due diligence Sublessor or Sublessee is unable, wholly or in
part, to prevent or overcome.
33. NO COMPETE. During the term of the Agreement and so long as Sublessee is not
in default, Sublessor agrees that it shall not engage in any business activity
on or around the Subleased Premises which is in competition in any way with
Sublessee's Offshore Business, specifically including leasing space to any other
cruise ship operation involved in on-board gaming or Sublessor itself engaging
in such business.
34. FACSIMILE SIGNATURE. The facsimile signature of a party to this Agreement
shall be binding on such party.
35. STATUS AND IDENTIFICATION OF SUBLESSEE. Sublessee agree to provide Sublessor
with the following on or before the Rent Commencement Date: (a) a current
financial statement, (b) a copy of its articles of incorporation and bylaws (or,
if this Agreement has been assigned to an Affiliate or third party as provided
herein, its articles of organization and regulations or such other
organizational documents as are applicable to such entity), and (c) the name,
address, phone and fax number of its authorized representative in Texas.
34. ENTIRE AGREEMENT. This Agreement constitutes the sole and only Agreement of
the parties hereto and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter within it.
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IN WITNESS WHEREOF, the undersigned Sublessor and Sublessee have
executed this Agreement in multiple counterparts, each of which shall be deemed
an original, as of the Effective Date.
SUBLESSEE:
CSL DEVELOPMENT CORPORATION, a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Name:
-----------------------------
Title:
----------------------------
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SUBLESSOR:
SOUTH PADRE ISLAND FISHING JOINT
VENTURE, a Texas joint venture
By: SRFP, Inc., a Texas corporation.
its Managing Venturer
By: /s/ Xxxxx Xxxxxxxx, President
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EXHIBIT "A"
PLAT
(to be attached)
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