EXHIBIT 10.36
AGREEMENT OF PURCHASE AND SALE
SUN INTERNATIONAL NORTH AMERICA, INC., SELLER
AND
SHOWBOAT LAND LLC, BUYER
Dated: As of January 29, 1998
Xxx 000, Xxxxx 00
Xxx Xxx xx Xxxx of Atlantic City
Atlantic County, New Jersey
AGREEMENT OF SALE
This Agreement of Sale ("Agreement") is made and entered
into as of January 29, 1998 by and between Sun International
North America, Inc., formerly known as Resorts International,
Inc., a Delaware corporation ("Seller"), and Showboat Land LLC, a
Nevada limited liability company ("Buyer").
BACKGROUND
A. Seller owns certain real property located on the
Boardwalk in the City of Atlantic City, County of Atlantic,
currently designated as Xxxxx 00, Xxx 000 on the current Atlantic
City Tax Map and more particularly described on Exhibit A
attached hereto and made a part hereof, together with the right,
title and interest of Seller, if any, in and to the streets and
in and to the land lying in the bed of any streets, roads or
avenues, open or proposed, public or private, in front of,
adjoining or abutting said real property to the center line
thereof, the air space and development rights pertaining to said
real property and the right to use such air space and development
rights, all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging, or in any way
appertaining thereto, all easements now or hereafter benefitting
said real property and all royalties and rights appertaining to
the use and enjoyment of said real property, including, but
without limiting the generality of the foregoing, all riparian,
alley, vault, drainage, mineral, water, oil, coal, gas and other
similar rights (all of the foregoing being hereinafter
collectively referred to as the "Property").
B. Seller currently leases the Property to Atlantic City
Showboat, Inc. ("Tenant"), a New Jersey corporation, pursuant to
that certain Lease Agreement dated October 26, 1983, by and
between Resorts, as landlord, and Tenant, as lessee. Thereafter,
the said lease was amended by the parties thereto by the First
Amendment to Lease Agreement dated January 15, 1985, the Second
Amendment to Lease Agreement dated July 5, 1985, the Third
Amendment to Lease Agreement dated October 28, 1985, the Restated
Third Amendment to Lease Agreement dated August 28, 1986, the
Fourth Amendment to Lease Agreement dated December 16,
1986, the Fifth Amendment dated March 2, 1987, the
Sixth Amendment to Lease Agreement dated March 13, 1987, the
Seventh Amendment to Lease Agreement dated October 18, 1988 and
the Eighth Amendment to Lease Agreement dated May 18, 1993
(collectively, the "Lease").
C. Seller desires to sell to Buyer and Buyer desires to
purchase the Property from Seller, and Seller desires to assign
the Lease and Buyer desires to assume the Lease on the terms and
conditions set forth in this Agreement.
ARTICLE I
DEFINED TERMS
1.1 DEFINITIONS. In addition to the abbreviations and
definitions set forth above and in the preamble to this
Agreement, the following defined terms used in this Agreement
shall have the meanings specified below:
"ADDITIONAL EXCEPTIONS" is defined in SECTION 3.1 of
this Agreement.
"CLOSING" means consummation of the purchase of the
Property by Buyer from Seller in accordance with the terms and
conditions of Article II of this Agreement.
"CLOSING DATE" means the date specified in SECTION
2.3 of this Agreement on which the Closing will be held.
"ENVIRONMENTAL LAWS" means any and all federal, state
or local laws, regulations, ordinances, orders, permits and
judgments and common law, including the law of strict liability
and the law of conducting abnormally dangerous activities
relating to the protection of health and/or the environment,
including, without limitation, provisions pertaining to or
regulating air pollution, water pollution, noise control,
wetlands, water courses, natural resources, wildlife, Hazardous
Substances, or any other activities or conditions which impact or
relate to the environment or nature.
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"HAZARDOUS SUBSTANCES" shall mean any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, gasoline, petroleum product,
pollutant, contaminant or any other substance which is regulated
under any Environmental Law, including, but not limited to,
asbestos, PCBs and any "hazardous substance", "hazardous
material", hazardous waste", "industrial waste" or similar term
as defined in any and all Environmental Laws such as, for
example, Section 101 (14) of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section 9601
(14) ("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"); Section 307 and 311 of the
Clean Water Act, 33 U.S.C. Sections 137 and 1321; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Sections
1801-1812; Section 1004 (5); of the Resource Conservation
Recovery Act, 42 U.S.C. Section 6903 (5); the New Jersey
Industrial Sight Recovery Act, N.J.S.A. 13:1K-6, et seq.
("ISRA"); the New Jersey Water Pollution Control Act, N.J.S.A.
58:10A-3, et seq.; the New Jersey Underground Storage of
Hazardous Substances Act, N.J.S.A. 58:10A-21, et seq.; the New
Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11,
et seq. (the "Spill Act"); and in the rules and regulations
adopted in connection with any and all of the aforementioned
Statutes and all other Environmental Laws.
"NJDEP" means New Jersey Department of Environmental
Protection.
"PERMITTED EXCEPTIONS" is defined in SECTION 3.1 of
this Agreement.
"PURCHASE PRICE" means the total consideration to be
paid by Buyer to Seller for the purchase of the Property pursuant
to SECTION 2.2 of this Agreement.
"TITLE COMPANY" means Commonwealth Land Title
Insurance Company, Lawyers Title Insurance Corporation and/ or
such other title insurance company or companies selected by Buyer
and licensed by the State of New Jersey.
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"TITLE POLICY" means the ALTA owners policy of title
insurance issued by the Title Company to Buyer which insures
title to the Property as provided in SECTION 3.1 of this
Agreement.
1.2 OTHER DEFINED TERMS. Certain other defined terms
shall have the respective meanings assigned to them elsewhere in
this Agreement.
ARTICLE II
PURCHASE AND SALE
2.1 PROPERTY. On the terms and conditions stated in this
Agreement, Seller hereby agrees to sell and convey to Buyer, and
Buyer hereby agrees to purchase and acquire from Seller, the
Property.
2.2 PURCHASE PRICE. The Purchase Price to be paid by
Buyer to Seller shall be One Hundred Ten Million
($110,000,000.00) Dollars allocated as follows:
$57,000,000.00 - land
$53,000,000.00 - excess rent attributable to leased fee
estate
The Purchase Price shall be payable to, or at the direction of
Seller through, the Title Company at the Closing by wire transfer
of immediately available funds to an account designated by
Seller.
2.3 CLOSING. The Closing of the purchase and sale of the
Property shall take place at 10:00 a.m. on January 29, 1998, at
the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 or such other place as may be mutually agreed
upon by Buyer and Seller.
2.4 ADJUSTMENTS AT CLOSING. There shall be no adjustments
between Buyer and Seller at Closing.
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2.5 COSTS OF CLOSING. Each party is responsible for
paying the legal fees of its counsel in negotiating, preparing,
and closing the transaction contemplated by this Agreement. Buyer
shall be responsible for the cost of recording the deed, the
Title Policy (as hereinafter defined) and for all fees and
expenses of the Title Company. Buyer shall be responsible for
the payment of the realty transfer fee in connection with the
transfer of title to the Property. Each party shall be
responsible for paying any other fees, costs and expenses
identified herein as being the responsibility of such party.
Notwithstanding the foregoing, in the event a
determination is made that an additional realty transfer fee is
due in connection with the conveyance of the Property to Buyer,
each party shall be responsible for the payment of one-half of
such additional realty transfer fee and any penalties and/or
interest related thereto within ten (10) days of the date of such
determination. The parties agree to share equally any and all
costs and expenses, including legal fees with regard to any
action or proceeding commenced related to the realty transfer
fee. The provisions of this sentence shall survive Closing.
2.6 ASSIGNMENT OF LEASE AND RENTS. At closing, Seller
shall assign and set over to Buyer all of Seller's right, title
and interest in the Lease and rents thereunder, free and clear of
all liens and encumbrances, except Permitted Exceptions and
Additional Exceptions, and Buyer shall assume the Lease.
ARTICLE III
CONDITION OF TITLE
3.1 CONDITION OF TITLE. Title to the Property shall be
good and marketable and insurable at standard rates by the Title
Company, and shall be free and clear of all liens, encumbrances
and rights of others, except for (a) those matters set forth on
EXHIBIT 3.1 attached hereto and made a part hereof (the
"Permitted Exceptions''). At Closing, title to the Property
shall be conveyed to Buyer, in fee simple, by bargain and sale
deed with a covenant as to grantor's acts (the "Deed") and (b)
such other matters as the Title Company
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shall be willing, at Buyer's request, to omit as exceptions to
coverage or to except, without special premium, with insurance
against collection out of or enforcement against the Property
(the "Additional Exceptions").
ARTICLE IV
CONDITIONS PRECEDENT; DELIVERIES
4.1 CONDITIONS PRECEDENT.
A. The obligation of Buyer to complete the Closing is
subject to the fulfillment (or waiver in writing by Buyer) of
each of the following conditions at or prior to the Closing:
(a) All representations and warranties made by
Seller hereunder are true, complete and correct in all material
respects on the date hereof, and shall be true, complete and
accurate in all material respects as of the Closing Date (as if
then made).
(b) All covenants, agreements and obligations
required by the terms of this Agreement to be performed by Seller
on or before the Closing Date shall have been fully performed in
all material respects.
(c) Seller shall have furnished or caused to be
furnished to Buyer all of the items required to be furnished by
Seller under SECTION 4.2 of this Agreement.
(d) Approval of the transactions contemplated by
this Agreement by the New Jersey Casino Control Commission.
B. The obligation of Seller to complete the Closing is
subject to the fulfillment (or waiver in writing by Seller) of
each of the following conditions at or prior to Closing:
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(a) All representations and warranties made by Buyer
hereunder are true, complete and correct on the date hereof, and
shall be true, complete and correct in all material respects as
of the Closing Date (as if then made).
(b) All covenants, agreements and obligations
required by the terms of this Agreement to be performed by Buyer
on or before the Closing Date shall have been fully performed in
all material respects.
(c) Buyer shall have furnished or caused to be
furnished to Seller all of the items required to be furnished by
Buyer under SECTION 4.3 of this Agreement.
4.2 SELLER'S DELIVERIES. At the Closing, Seller shall
deliver or cause to be delivered to Buyer, the following items
duly executed, witnessed and/or attested, sealed and acknowledged
where so indicated by all necessary parties:
(a) The Deed, duly executed in recordable form by
Seller.
(b) The Assignment and Assumption of Lease in the
form attached hereto as EXHIBIT 4.2(b).
(c) Affidavit of title attached hereto as EXHIBIT
4.2(c).
(d) Resolution of the Board of Directors of Seller
authorizing the sale of the Property to Buyer in accordance with
the terms of this Agreement.
(e) Discharge of Mortgage recorded in Mortgage Book
4445, page 209 ET SEQ. and Assignment recorded in Deed Book 5136,
page 45.
(f) The Estoppel Certificate in the form attached
hereto as EXHIBIT 4.2(h).
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4.3 BUYER'S DELIVERIES. At the Closing, Buyer shall
deliver or cause to be delivered to Seller or the Title Company,
the following items:
(a) The payment required by SECTION 2.2 of this
Agreement.
(b) The Assignment and Assumption of Lease in the
form attached hereto as EXHIBIT 4.2(b)..
(c) The Estoppel Certificate of Tenant in the form
attached hereto as EXHIBIT 4.3(c).
(d) Resolution of the Buyer authorizing the purchase
of the Property in accordance with the terms of this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 REPRESENTATIONS AND WARRANTIES. The following
representations and warranties of Seller are true, complete and
correct in all material respects on the date hereof and shall be
true, complete and correct in all material respects on the
Closing Date (as if then made):
(a) Seller has the full legal right, power and
authority to enter into, execute, deliver and perform all of its
obligations under this Agreement. All requisite action necessary
to authorize Seller to enter into this Agreement and to carry out
its obligation hereunder have been, or on the Closing Date will
have been, taken. The execution and delivery of this Agreement
by Seller constitutes the valid and legally binding obligation of
Seller to perform this Agreement, enforceable against Seller in
accordance with its terms.
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(b) Seller has not received any written notice of
any pending or threatened condemnation action with respect to all
or any portion of the Property, and to the best of Seller's
knowledge, there are no existing condemnation or other legal
proceedings affecting the Property by any governmental authority
having jurisdiction over or affecting all or any part of the
Property.
(c) No permission, consent or approval by any third
party or, to the best of Seller's knowledge, any governmental
authority is required to be obtained by Seller in order for
Seller to consummate the transactions contemplated by this
Agreement.
(d) There are no actions, suits or proceedings
pending or, to the best of Seller's knowledge or the knowledge of
its affiliates, threatened affecting the Property or any portion
thereof.
(e) Seller and each of its affiliates have not
received written notice that the Property is in violation of any
Environmental Laws. Seller and each of its affiliates have no
knowledge of the release of Hazardous Substance on or from the
Property or to the Property from any adjacent property, or any
potential or known liability which has resulted in or may result
in a lien on the Property or which is or may result in a
violation of any Environmental Laws. Seller and each of its
affiliates have not received written notice of a threatened or
pending Regulatory Action (hereinafter defined) and has not
received any written notification that it is or may be
potentially responsible or liable for clean-up, testing or other
remedial activities at any site including, without limitation,
the Property. "Regulatory Action" is defined as any violation,
complaint, citation, request for information, order, directive,
compliance schedule, notice of claim, consent decree, action,
litigation or proceeding brought by or instituted by any
governmental authority under or in connection with any
Environmental Law.
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(f) To the best of Seller's knowledge and belief,
the Lease is in full force and effect and no default or event,
which with notice, the passage of time or both would constitute a
default, has occurred thereunder. Tenant under the Lease is
current in the payment of rent and all other amounts due under
the Lease.
(g) The representations and warranties of Seller
contained herein shall not survive the Closing.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
The following representations and warranties of Buyer are
true, complete and correct in all material respects on the date
hereof and shall be true, complete and correct in all material
respects on the Closing Date (as if then made):
(a) Buyer has the full legal right, power and authority
to enter into, execute, deliver and perform all of its
obligations under this Agreement. All requisite action necessary
to authorize Buyer to enter into this Agreement and to carry out
Buyer's obligations hereunder has been, or on the Closing Date
will have been, taken. The execution and delivery of this
Agreement by Buyer constitutes the valid and legally binding
obligation of Buyer to perform this Agreement, enforceable in
accordance with its terms.
(b) Buyer and each of Buyer's affiliates have not
received any written notice of any pending or threatened
condemnation action with respect to all or any portion of the
Property, and to the best of Buyer's knowledge, there are no
existing condemnation or other legal proceedings affecting the
Property by any governmental authority having jurisdiction over
or affecting all or any part of the Property.
(c) No permission, consent or approval by any third party
or, to the best of Buyer' s knowledge, any governmental
authority is required to be obtained by Buyer in
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order for Buyer to consummate the transactions contemplated by
this Agreement, except the consent or approval of the New Jersey
Casino Control Commission which may be required to be obtained by
Buyer and/or Tenant.
(d) There are no actions, suits or proceedings pending
or, to the best of Buyer's knowledge or the knowledge of its
affiliates, threatened affecting the Property or any portion
thereof.
(e) Buyer and each of its affiliates have not received
written notice that the Property is in violation of any
Environmental Laws. Buyer and each of its affiliates have no
knowledge of the release of Hazardous Substance on or from the
Property or to the Property from any adjacent property, or any
potential or known liability which has resulted in or may result
in a lien on the Property or which is or may result in a
violation of any Environmental Laws. Buyer and each of its
affiliates have not received written notice of a threatened or
pending Regulatory Action and has not received any notification
that it is or may be potentially responsible or liable for
clean-up, testing or other remedial activities at any site
including, without limitation, the Property.
(f) To the best of Tenant's knowledge and belief, the
Lease is in full force and effect and no default or event, which
with notice, the passage of time or both would constitute a
default, has occurred thereunder.
(g) The representations and warranties of Buyer contained
herein shall not survive the Closing.
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ARTICLE VII
BROKERAGE COMMISSIONS
Seller and Buyer each warrant to the other that neither has
incurred any obligation for a real estate or brokerage commission
with respect to this transaction, and each hereby agrees to
defend, indemnify, and hold harmless the other for any loss,
cost, or expense which may result from a breach of this warranty.
ARTICLE VIII
CONDEMNATION
If, prior to the Closing, there shall occur a threatened or
actual taking or condemnation of all or any substantial portion
of the Property, then, in such event, Buyer shall have the right
to terminate this Agreement by written notice delivered to Seller
within ten (10) days after Buyer has received written notice from
Seller of such an event ("Seller's Condemnation Notice"). If
Buyer elects to terminate this Agreement pursuant to the
preceding sentence, the parties shall have no further rights or
obligations under this Agreement, one to the other with respect
to the subject matter of this Agreement. If this Agreement is
not terminated by Buyer, it shall remain in full force and
effect, and Seller, upon the Closing, at Buyer's election, shall
either (i) pay to Buyer any award collected by Seller as a result
of said taking, deducting from same the reasonable expenses of
Seller, including attorneys' fees, incurred in the collection of
same, or (ii) assign, transfer and set over to Buyer all of
Seller's right, title and interest in and to any awards to be
made on account of said taking, as the case may be.
ARTICLE IX
MISCELLANEOUS
9.1 NOTICES. All notices, demands, approvals,
consents, requests and other communications required
or permitted hereunder shall be in writing, and
shall be deemed to be properly delivered (i) on receipt if
delivered by hand, (ii) the next business day if
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delivered overnight delivery by a nationally recognized overnight
courier service provided it is delivered, and (iii) whether
actually received or refused three (3) days after having been
deposited in a regularly maintained receptacle for the United
States mail, registered or certified, return receipt requested,
postage prepaid, addressed as follows:
If to Seller: Sun International North America, Inc.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Senior Corporate Counsel
Sun International North America,
Inc.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
and to: Xxxxx X. Gerkis, Esq.
Xxxxxxx, Breed, Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Buyer: R. Xxxxx Xxxx, Executive Vice President
Finance and Administration
Showboat Incorporated
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy to: Xxxx Xxxxxx, Esq.
Kummer, Kaempfer, Xxxxxx & Xxxxxxx
Seventh Floor
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
and to: Xxxxxx X. Xxxxx, Esq.
Levine, Staller, Sklar, Chan,
Xxxxxxx & Xxxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
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Any of the addresses for notice may be changed by delivery
of written notice in connection herewith.
9.2 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement
embodies the entire agreement between the parties with respect to
the Property and supersedes all prior agreements and
understandings, if any, relating to the Property, and may be
amended or supplemented only by an instrument in writing executed
by the party against whom enforcement is sought.
9.3 PARTIES BOUND. This Agreement shall be binding upon
and inure to the benefit of Seller and Buyer, and their
respective legal representatives, successors and assigns.
9.4 TIME IS OF THE ESSENCE. It is expressly agreed by
Seller and Buyer that time is of the essence with respect to this
Agreement.
9.5 ATTORNEY'S FEES. If either party hereto shall be
required to employ an attorney to enforce or defend the rights of
such party hereunder, the prevailing party will be entitled to
recover its reasonable attorneys fees, costs and disbursements.
9.6 MULTIPLE COUNTERPARTS; FACSIMILE SIGNATURES. This
Agreement may be executed and delivered in any number of
counterparts, all of which taken together shall constitute one
and the same agreement and either of the parties hereto may
execute this Agreement by signing and delivering any such
counterpart. Signatures delivered by telecopier or similar
device shall be deemed the equivalent of an original signature.
At the request of a party, the other party shall deliver to the
requesting party a signature page bearing the original signature
of such party.
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9.7 SEVERABILITY. If any provision of this Agreement
shall, for any reason, be held violative of any applicable law,
and so much of this Agreement is held to be unenforceable, then
the invalidity of such specific provision shall not be held to
invalidate any other provision of this Agreement which shall
remain in full force and effect.
9.8 ASSIGNMENT. This Agreement may not be assigned by
Buyer, in whole or in part, without the prior written consent of
Seller.
9.9 GOVERNING LAW. The terms and conditions of this
Agreement shall be governed by the internal laws of the State of
New Jersey.
9.10 COUNTERPARTS;FACSIMILE SIGNATURES. This Agreement may
be executed in counterparts and when executed by each of the
parties hereto shall constitute a binding, single agreement and
execution of this document and any Exhibits hereto by facsimile
signature shall be acceptable and deemed the same as original
signatures. The party delivering the facsimile signature shall
promptly deliver a live signature page to the other party.
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EXECUTED by Buyer this 27TH day of January, 1998
Showboat Land LLC
By: Showboat Operating Company,
a member
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice-President and
Chief Financial Officer
Acknowledged and Agreed to:
Atlantic City Showboat, Inc.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
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EXECUTED by Seller this 27TH day of January, 0000
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxx, Inc.
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Executive Vice President-Finance &
Chief Financial Officer
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INDEX OF EXHIBITS
A. Legal Description
3.1 Permitted Exceptions
4.2(b) Assignment and Assumption of Lease
4.2(c) Affidavit of Title
4.2(h) Estoppel Certificate of Seller
4.3(c) Estoppel Certificate of Tenant
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EXHIBIT A
LEGAL DESCRIPTION
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SCHEDULE A
SITUATE in the City of Atlantic City, County of Atlantic and
State of New Jersey, bounded and described as follows:
BEGINNING at a point in the Southerly line of Pacific Avenue
(60.00 feet wide), South 62 degrees 32 minutes 00 seconds West,
266.00 feet from the Westerly line of New Jersey Avenue (50.00
feet wide), said point being in the division line between Lots
140 and 144.10 in Block 13 as shown on the current tax map for
the City of Atlantic City, and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds East, in and along
said division line, and continuing in and along the division
line between Lots 140 and continuing in and along the division
line between Lots 140 and 144.02 and 144.01, respectively,
parallel with New Jersey Avenue 1432.20 feet to the Inland or
Interior Line of Public Park (The Boardwalk); thence
(2) Southwestwardly in and along same in the arc of a circle
curving to the right, having a radius of 1102.57 feet, the arc
length of 8.94 feet to a point of tangent; thence
(3) South 59 degrees, 24 minutes, 40 seconds West in and along
same, 308.53 feet to the Easterly line of Lot 128.03 thence
(4) North 27 degrees 28 minutes 00 seconds West in and along
same, and continuing in and along the Easterly line of Lots
128.03 and 129.06 respectively, parallel with New Jersey Avenue,
1369.53 feet to a point in the Southerly line of Lot 130; thence
(5) North 62 degrees 32 minutes 00 seconds East in and along
same, and continuing in and along the Southerly line of Lot
129.02, parallel with Pacific Avenue, 25.00 feet to a point;
thence
(6) North 27 degrees 28 minutes 00 seconds West, in and along
the Easterly line of Lot 129.02, parallel with New Jersey Avenue
80.00 feet to the Southerly line of Pacific Avenue; thence
(7) North 62 degrees 32 minutes 00 seconds East in and along
the Southerly line of Pacific Avenue, 292.00 feet to the POINT
AND PLACE OF BEGINNING.
BEING KNOWN AS Lot 140 in Block 13 as shown on the current Tax
Map for the City of Atlantic City.
TOGETHER WITH the following non-exclusive easements:
Continued on next page
SCHEDULE A CONTINUED
1. A non-exclusive easement for the construction, repair,
maintenance and use of the Common Facilities (as such are defined
in the Ground Lease, a short form recorded in Deed Book 3878,
page 1 and the Agreement as to Assumption of Obligations with
respect to properties recorded in Deed Book 4795, page 243 and
Deed Book 4863, page 5).
2. A non-exclusive easement over, upon and across the
Pedestrian Passageway, together with the 17-Foot Egressway
(Parcel A), the Service Road (Parcel B) and the Service Road
Extension (Parcel C) (as such are defined in the Ground Lease, a
short form recorded in Deed Book 3878, page 1 and the Agreement
as to Assumption of Obligations with respect to properties
recorded in Deed Book 4795, page 243 and Deed Book 4863, page
5), as shown on a survey made by Xxxxxx X. Xxxxxx Co. and
Associates, Inc., dated November 17, 1997, and being more
particularly described as Parcels A, B and C, respectively.
SUBJECT to a portion of the fifty-foot wide service easement
lying within the Showboat Leased Land and more particularly
described as Parcel D attached hereto.
PARCEL A
DESCRIPTION OF THE SEVENTEEN-FOOT WIDE EGRESSWAY AT GRADE
BETWEEN THE SERVICE ROAD AND THE BOARDWALK OVER LOTS 128.07 AND
128.08 IN BLOCK 13 ON THE OFFICIAL TAX MAP OF ATLANTIC CITY.
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at a point distant 535.00 feet East of the Easterly
line of Virginia Avenue (80 feet wide) and 868.00 feet South of
the Southerly line of Pacific Avenue (60 feet wide), when
measured at right angles to said avenues respectively, and
extending from said beginning point the following courses and
distances:
(1) South 27 degrees 28 minutes 00 seconds East parallel with
Virginia Avenue, a distance of 582.45 feet to the Inland or
Interior Line of Public Park; thence
(2) South 59 degrees 24 minutes 40 seconds West in and along the
Inland or Interior Line of Public Park, a distance or 17.03 feet;
thence
Continued on next page
SCHEDULE A CONTINUED
(3) North 27 degrees 28 minutes 00 seconds West parallel with
Virginia Avenue, a distance of 583.38 feet; thence
(4) North 62 degrees 32 minutes 00 seconds East parallel with
Pacific Avenue, a distance of 17.00 feet to the POINT AND PLACE
OF BEGINNING.
PARCEL B
DESCRIPTION OF THE FIFTY-FOOT WIDE SERVICE ROAD OVER LOTS
129.02, 129.06 AND A PORTION OF LOTS 128.03, 130 AND 140 IN
BLOCK 13 ON THE OFFICIAL TAX MAP OF ATLANTIC CITY.
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at a point in the Southerly side of Pacific Avenue (60
feet wide), said point being distant 577.00 feet East of the
Easterly line of Virginia Avenue (80 feet wide) and extending
from said beginning point the following courses and distances:
(1) South 27 degrees 28 minutes 00 seconds East parallel with
Virginia Avenue, a distance of 86.00 feet; thence
(2) South 07 degrees 48 minutes 46 seconds East, a distance of
74.33 feet; thence
(3) South 27 degrees 28 minutes 00 seconds East parallel with
Virginia Avenue, a distance of 712.00 feet, to a point distant
868.00 feet South of the Southerly line of Pacific Avenue when
measured at right angles thereto; thence
(4) South 62 degrees 32 minutes 00 seconds West parallel with
Pacific Avenue, a distance of 50.00 feet; thence
(5) North 27 degrees 28 minutes 00 seconds West parallel with
Virginia Avenue, a distance of 720.66 feet; thence
(6) North 07 degrees 48 minutes 46 seconds West, a distance of
74.33 feet; thence
(7) North 27 degrees 28 minutes 00 seconds West parallel with
Virginia Avenue, a distance of 77.34 feet to the Southerly line
of Pacific Avenue; thence
Continued on next page
SCHEDULE A CONTINUED
(8) North 62 degrees 32 minutes 00 seconds East in and along
the Southerly line of Pacific Avenue, a distance of 50.00 feet
to the POINT AND PLACE OF BEGINNING.
PARCEL C
DESCRIPTION OF THE SEVENTEEN-FOOT WIDE FIRE LANE BETWEEN THE
SERVICE ROAD AND THE BOARDWALK OVER A PORTION OF LOT 128.03 IN
BLOCK 13 ON THE OFFICIAL TAX MAP OF ATLANTIC CITY.
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
follows:
BEGINNING at a point distant 552.00 feet East of the Easterly
line of Virginia Avenue (80 feet wide) and 868.00 feet South of
the Southerly line of Pacific Avenue (60 feet wide), when
measured at right angels to said avenues respectively, and
extending from said beginning point the following courses and
distances:
(1) South 27 degrees 28 minutes 00 seconds East parallel with
Virginia Avenue, a distance of 581.53 feet to the Inland or
Interior Line of Public Park; thence
(2) South 59 degrees 24 minutes 40 seconds West in and along
the Inland or Interior Line of Public Park, a distance of 17.03
feet; thence
(3) North 27 degrees 28 minutes 00 seconds West parallel with
Virginia Avenue, a distance of 582.45 feet; thence
(4) North 62 degrees 32 minutes 00 seconds East parallel with
Pacific Avenue, a distance of 17.00 feet to the POINT AND PLACE
OF BEGINNING.
PARCEL D
DESCRIPTION FOR THE EASEMENT FOR THAT PORTION OF THE FIFTY-FOOT
WIDE SERVICE ROAD LYING WITXIN THE SHOWBOAT LANDS OVER A PORTION
OF LOT 140, BLOCK 13 ON THE OFFICIAL TAX MAP OF ATLANTIC CITY.
ALL that certain lot, tract or parcel of land and premises
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey, bounded and described as
Continued next page
SCHEDULE A CONTINUED
follows:
BEGINNING at a point distant 577.00 feet East of the Easterly
line of Virginia Avenue (80 feet wide) and 80.00 feet South of
the Southerly line of Pacific Avenue (60 feet wide), and
extending from said beginning point the following courses and
distances:
(1) South 27 degrees 28 minutes 00 seconds East parallel with
Virginia Avenue, a distance of 6.00 feet; thence
(2) South 07 degrees 48 minutes 46 seconds East, a distance of
74.33 feet; thence
(3) North 27 degrees 28 minutes 00 seconds West parallel with
Virginia Avenue, a distance of 76.00 feet; thence
(4) North 62 degrees 32 minutes 00 seconds East parallel with
Pacific Avenue, a distance of 25.00 feet to the POINT AND PLACE
OF BEGINNING.
NOTE: All references herein to Lot and Block designations are
to be used for informational purposes only and are not to be
interpreted as being part of the description.
BEING KNOWN AS Lot in Block as shownon the tax
map of the CITY of ATLANTIC CITY.
EXHIBIT 3.1
PERMITTED EXCEPTIONS
1. LANDLORDS WAIVER: between Resorts International Inc. and
Maryland National Leasing Corporation dated September 18,
1986 recorded December 30, 1986 in Deed Book 4372 page 282.
2. AGREEMENT AS TO ASSUMPTION OF OBLIGATIONS WITH RESPECT TO
PROPERTIES: between Atlantic City Showboat Inc., a New
Jersey Corporation, Xxxxx Xxx Xxxxx Associates Limited
Partnership, a New Jersey Limited Partnership, Xxxxx Xxx
Mahal Realty Corp., a New Jersey Corporation, and Resorts
International Inc., a Delaware Corporation dated September
21, 1988 and recorded November 17, 1988 in Deed Book 4795
page 243 and as amended by First Amendment recorded in Deed
Book 4966 page 181.
3. AGREEMENT AS TO ASSUMPTION OF OBLIGATIONS WITH RESPECT TO
PROPERTIES: Between Atlantic City Showboat, Inc., a New
Jersey Corporation, Xxxxx Xxx Xxxxx Associates Limited
Partnership, a New Jersey Limited Partnership, Xxxxx Xxx
Mahal Realty Corp., a New Jersey Corporation, and Resorts
International Inc. a Delaware Corporation dated September
21, 1988 recorded March 14, 1989 in Deed book 4863 page 5.
4. Restrictions, covenants, agreements, and easements
contained in Deed Book 2436 page 110; Misc. Book 12 page
242; and Misc. Book 12 page 377.
5. Restrictions, covenants, agreements and easements,
contained in Deed Book 3978 page 219, Certification in Deed
Book 4524 page 192 as modified in Deed Book 4646 page 166
and in Deed Book 3846 page 199 as amended by Correction and
Confirmatory Deed in Deed Book 4636 page 218, and Deed Book
4016 page 70.
6. Rights granted to the Atlantic City Electric Company in
Deed Book 1991 page 100.
7. Rights of the Federal Government to take, without
compensation, any land now or formerly flowed by tidal
waters for the purpose of commerce and navigation and its
authority to regulate and control navigation and in that
connection to establish and change bulkhead and pierhead
lines.
8. Easement for Service Road over a portion of premises (Lot
140 Block 13) described as Parcel D on Exhibit A.
9. Estate and interest under the terms and provisions of lease
by Resorts International Inc. a Delaware Corporation to
Ocean Showboat Inc. a New Jersey Corporation Short Form
Lease dated October 26, 1983 recorded January 18, 1984 in
Deed Book 3878 page 1.
20
10. Taxes, charges and assessments.
11. Liability for additional assessment for tax in connection
with new construction pursuant to N.J.S.A. 54:4-63.1 ET
SEQ.
12. Water charges, if any, affecting the premises in question.
13. Rights or claims of parties in possession not shown by the
public records, limited, however, to the Lease.
14. Encroachments, overlaps, boundary line disputes, or other
matters which would be disclosed by an accurate survey and
inspection of the Property.
15. Any liens, or right to a lien, for services, labor, or
material heretofore or hereafter furnished, imposed by law
and not shown by the public record, except such liens
attributable to Seller.
16. Terms and conditions contained in Riparian Grants from the
State of New Jersey to Xxxxxxxx Xxxxx, recorded March 28,
1882 in Deed Book 88, page 80 and to Xxxxx X. Xxxxxx,
recorded August 11, 1899 in Deed Book 233, page 417
provided, however, the Title Company insures that the
grantees in the Riparian Grants were the upland owners at
the time said Grants were given.
DECLARATION OF COMMENCEMENT DATE OF LEASE: by Resorts
International Inc. a Delaware Corporation and Ocean Showboat
Inc. a New Jersey Corporation dated December 15, 1983 recorded
May 1, 1984 in Deed Book 3911 page 63.
ASSIGNMENT AND ASSUMPTION OF LEASE: by Ocean Showboat Inc. a
New Jersey Corporation to Atlantic City Showboat, Inc. a New
Jersey Corporation dated December 3, 1984 recorded December 24,
1984 in Deed Book 4004 page 310.
FIRST AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat Inc. a New
Jersey Corporation dated January 15, 1985 recorded August 16,
1985 in Deed Book 4107 page 141.
SECOND AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat Inc. a New
Jersey Corporation dated July 5, 1985 recorded November 25, 1985
in Deed Book 4158, page 221.
THIRD AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat Inc. a New
Jersey Corporation dated October 28, 1985 recorded November 25,
1985 in Deed Book 4158, page 227.
21
RESTATED THIRD AMENDMENT TO LEASE: between Resorts
International Inc. a Delaware Corporation and Atlantic City
Showboat, Inc. a New Jersey Corporation dated October 28, 1985
recorded February 20, 1987 in Deed Book 4406 page 17.
FOURTH AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat Inc. a New
Jersey Corporation dated December 16, 1986 recorded February 20,
1987 in Deed Book 4406, page 37.
FIFTH AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat Inc. a New
Jersey Corporation dated March 2, 1987 recorded March 23,1987 in
Deed Book 4421 page 10.
SIXTH AMENDMENT TO LEASE: between Resorts International Inc. a
Delaware Corporation and Atlantic City Showboat, Inc. a New
Jersey Corporation dated March 13, 1987 recorded March 23, 1987
in Deed Book 4421 page 17.
SEVENTH AMENDMENT TO LEASE: between Resorts International Inc.
a Delaware Corporation and Atlantic City Showboat, Inc. a New
Jersey Corporation date October 18, 1988 recorded December 19,
1988 in Deed Book 4814 page 231.
EIGHTH AMENDMENT TO LEASE: between Resorts International Inc.,
a Delaware Corporation and Atlantic City Showboat, Inc. a New
Jersey Corporation dated May 18, 1993 recorded May 18, 1993 in
Deed Book 5500, page 284.
22
EXHIBIT 4.2(B)
ASSIGNMENT AND ASSUMPTION OF LEASE
23
Prepared by:
/S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made
this 27th day of January, 1998 by and between SUN INTERNATIONAL
NORTH AMERICA, INC., 0000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx
00000 ("Assignor"), SHOWBOAT LAND LLC, 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 ("Assignee") and
ATLANTIC CITY SHOWBOAT, INC. ("Lessee").
BACKGROUND
A. Assignor conveyed to Assignee that certain real
property located on The Boardwalk in the City of Atlantic City,
being designated as Lot 140 in Block 13 on the current Atlantic
City Tax Map and more particularly described on Exhibit A
attached hereto and made a part hereof (the "Property"), subject
to that certain Lease Agreement dated October 26, 1983, by and
between Resorts International, Inc., as landlord, and Atlantic
City Showboat, Inc., as lessee. Thereafter, the said lease was
amended by the parties thereto by the First Amendment to Lease
Agreement dated January 15, 1985, the Second Amendment to Lease
Agreement dated July 5, 1985, the Third Amendment to Lease
Agreement dated October 28, 1985, the Restated Third Amendment to
Lease Agreement dated August 28, 1986, the Fourth Amendment to
Lease Agreement dated December 16, 1986, the Fifth Amendment to
Lease Agreement dated March 2, 1987, the Sixth Amendment to Lease
Agreement dated March 13, 1987, the Seventh Amendment to Lease
Agreement dated October 18, 1988 and the Eighth Amendment to
Lease Agreement dated May 18, 1993 (collectively, the "Lease").
B. In connection with said conveyance, Assignor desires to
assign to Assignee all of Assignor's right, title and interest
in, to and under the lease, and Assignee desires to assume the
obligations of Assignor thereunder.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
Assignor and Assignee hereby agree as follows:
1. ASSIGNMENT OF LEASE. Assignor hereby grants, sells,
assigns, transfers and sets over to Assignee, all of Assignor's
right, title and interest in and to the Lease.
2. ASSIGNMENT OF RENTS AND SECURITY DEPOSIT. Assignor
hereby unconditionally grants, sells, assigns, transfers and sets
over to Assignee all rents, royalties, issues, revenues, income
and profits due and payable from and after the date hereof under
the terms of the Lease. Assignee acknowledges that no security
deposit exists under the Lease and agrees that no security is
assigned hereunder.
3. ASSUMPTION OF LEASES. In consideration of the
foregoing assignments, Assignee hereby accepts said assignment
and assumes and agrees to keep and perform, any and all of
Assignor's obligations under the Lease to be performed or paid on
and after the date hereof and agrees to be bound by the terms,
covenants and conditions of the Lease. Assignee agrees to
indemnify and hold Assignor harmless from and against any loss,
damage, liability, cost and expense suffered or incurred by
Assignor, including, without limitation, reasonable attorneys'
fees and expenses, by reason of the failure of Assignee
to perform, keep or pay any of its obligations under the Lease or
any claims related to the Property arising or accruing after the
date hereof.
4. ASSIGNOR'S REPRESENTATIONS. Assignor represents and
warrants to Assignee that the Lease is assigned to Assignor, free
and clear of all liens, encumbrances and rights of others. and
any rights thereunder have not been assigned by Assignor. This
Assignment is otherwise made without representation or warranty
of any kind by Assignor.
5. RELEASE.
(a) ASSIGNEE'S RELEASE. Assignee hereby releases
Assignor, its directors, officers, agents, representatives,
control persons and affiliates (including, without limitation,
Sun International Hotels Limited) and the directors, officers,
agents and representatives of such control persons and affiliates
(each, a "Released Person") from all actions, causes of action,
suits, proceedings, debts, sums of money, liens, accounts,
reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses,
damages, judgments, extents, liabilities, obligations,
executions, claims and demands whatsoever, in law, admiralty or
equity or otherwise, which against any of the Released Persons,
Assignee, its directors, officers, agents, representatives,
members, control persons and affiliates of Assignee, and the
directors, officers, agents and representatives of such members,
control persons and affiliates, ever had, now have or hereafter
can, shall or may, have for, upon, or by reason of any matter,
cause or thing whatsoever pursuant to the Lease from the
beginning of the world to the end of time.
(b) ATLANTIC CITY SHOWBOAT, INC.'S RELEASE. Atlantic
City Showboat, Inc. hereby releases Assignor, its directors,
officers, agents, representatives, control persons and affiliates
(including, without limitation, Sun International Hotels Limited)
and the directors, officers, agents and representatives of such
control persons and affiliates (each, a "Released Person") from
all actions, causes of action, suits, proceedings, debts, sums of
money, liens, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, liabilities,
obligations, executions, claims and demands whatsoever, in law,
admiralty or equity or otherwise, which against any of the
Released Persons, Atlantic City Showboat, Inc., its directors,
officers, agents, representatives, members, control persons and
affiliates of Atlantic City Showboat, Inc., and the directors,
officers, agents and representatives of such members, control
persons and affiliates, ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever pursuant to the Lease from the beginning of
the world to the end of time.
(c) ASSIGNOR'S RELEASE. Assignor hereby releases
Assignee and Atlantic City Showboat, Inc., its directors,
officers, agents, representatives, control persons and affiliates
(including, without limitation, Showboat, Inc. and Atlantic City
Showboat, Inc.) and the directors, officers, agents and
representatives of such control persons and affiliates (each, a
"Released Person") from all actions, causes of action, suits,
proceedings, debts, sums of money, liens, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, liabilities, obligations, executions, claims and demands
whatsoever, in law, admiralty or equity or otherwise, which
against any of the Released Persons, Assignor, its directors,
officers, agents, representatives, members, control persons and
affiliates of Assignor, and the directors, officers, agents and
representatives of such members, control persons and affiliates,
ever had, now have or hereafter can, shall or may, have for,
upon, or by reason of any matter, cause or thing whatsoever
pursuant to the Lease
from the beginning of the world to the end of time; PROVIDED,
HOWEVER, this release shall not apply to any claims or causes of
action asserted against Assignor by persons or entities
unaffiliated with Assignor arising out of the use and/or
occupancy of the Property by the Lessee under the Lease.
Nothing contained in this Paragraph 5 is intended to release
or modify the obligations of Xxxxx Xxx Mahal Realty Corp. and
Xxxxx Xxx Xxxxx Associates Limited Partner (together, "Trump")
under that certain agreement as to Assumption of Obligations with
Respect to Property between Atlantic City Showboat, Inc. and
Xxxxx dated September 21, 1988, as amended.
6. MISCELLANEOUS. This Assignment shall run with the land
and be binding upon the parties hereto and each of their
respective successors and assigns. This Assignment shall be
governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first written above.
WITNESS/ATTEST: ASSIGNOR:
SUN INTERNATIONAL NORTH AMERICA, INC.
/S/ By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx, Executive Vice
President-Finance & CFO
STATE OF FLORIDA :
: ss
COUNTY OF Broward :
BE IT REMEMBERED, that on this 27th day of January, 1998,
before me, the subscriber, a Notary Public of Florida (State),
personally appeared Xxxx Xxxxxxx, Executive Vice-President-Finance
& CFO of Sun International North America, Inc., who, I am satisfied,
is the person who signed, sealed and delivered the same as such
officer aforesaid, and that the within instrument is the
voluntary act and deed of such corporation.
/S/ XXXXX XXXXXXXX
WITNESS/ATTEST: ASSIGNEE:
SHOWBOAT LAND LLC
By: Showboat Operating Company,
a member
/s/ Xxxxxxxxx Xxxxxx By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice-President
Chief Financial Officer
STATE OF NEW JERSEY :
: ss
COUNTY OF ATLANTIC :
BE IT REMEMBERED, that on this 27th day of January, 1998,
before me, the subscriber, a Notary Public of New Jersey
(State), personally appeared R. Xxxxx Xxxx, Executive Vice
President and Chief Financial Officer of Showboat Operating
Company, a member of Showboat Land LLC, who, I am satisfied, is
the person who signed, sealed and delivered the same as such
officer aforesaid, and that the within instrument is the
voluntary act and deed of such limited liability company.
/s/ Xxxxxxxx X. Park
XXXXXXXX X. PARK
A Notary Public of New Jersey
My Commission Expires March 16, 1998
4
LESSEE:
ATLANTIC CITY SHOWBOAT, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
and CEO
STATE OF NEW JERSEY :
: ss
COUNTY OF ATLANTIC :
BE IT REMEMBERED, that on this 27 day of January, 1998,
before me, the subscriber, a Notary Public of New Jersey
(State), personally appeared Xxxxxxx X. Xxxxx, President and CEO
of Atlantic City Showboat, Inc., who, I am satisfied, is the
person who signed, sealed and delivered the same as such officer
aforesaid, and that the within instrument is the voluntary act
and deed of such limited liability company.
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 19, 1999
5
EXHIBIT 4 2(C)
AFFIDAVIT OF TITLE
24
AFFIDAVIT OF TITLE
STATE OF FLORIDA :
: ss
COUNTY OF BROWARD :
The undersigned says under oath:
1. AUTHORIZATION. I am the Executive Vice
President-Finance & Chief Financial Officer of Sun International
North America, Inc., a corporation of the State of Delaware (the
"Corporation") and am delivering the affidavit on behalf of the
Corporation. I am fully familiar with the business of the
corporation. I am at least 18 years old.
2. REPRESENTATIONS. The statements contained in this
affidavit are true to the best of my knowledge, information and
belief.
3. CORPORATE AUTHORITY. The corporation is the only
owner of property known as Block 13, Lot 140 on the Tax map of
the City of Atlantic City, and more particularly described in
Xxxxxxx Title Guaranty Company Title Commitment No. 91118875
(the "Title Commitment"), hereinafter called "this property."
This action, and the making of this affidavit of title,
have been duly authorized by a proper resolution of the Board of
Directors of the Corporation. The Corporation is legally
authorized to transact business in New Jersey. It has paid all
state franchise taxes presently due. Its charter, franchise and
corporate powers have never been suspended or revoked. It is
not restrained from doing business nor has any legal action been
taken for that purpose.
4. APPROVAL BY SHAREHOLDERS. ( check one only)
[X] Shareholder approval is not required.
[ ] This is sale of all or substantially all of the
assets of the Corporation. The sale is not made
in the regular course of the business of the
Corporation. A copy of the authorization and
approval of the shareholders is attached.
5. OWNERSHIP AND POSSESSION. The Corporation has owned
this property since the dates recited in the Title Commitment.
Since then no one has questioned its right of ownership. The
property is in possession of Atlantic City Showboat, Inc. in
accordance with the lease agreement recited in the Title
Commitment.
6. LIENS OR ENCUMBRANCES. It has not allowed any
interests (legal rights) to be created which affects its
ownership or use of this property except for those recited in
the Title Commitment. The Corporation does not have any pending
lawsuits or judgments against it or other legal obligations
which may be enforced against this property. It does not owe
any disability, unemployment, corporate franchise, social
security, municipal or alcoholic beverage tax payments. No one
has any security interest in any personal property or fixtures
on this property except those recited in the Title Commitment.
7. EXCEPTIONS AND ADDITIONS. The following is a complete
list of exceptions and additions to the above statements.
a. Matters contained in the Title Commitment.
b. Rights, restrictions, conditions, agreements and
easements that appear of record.
c. Lawsuits arising in the course of operating the
business of the Corporation.
8. RELIANCE. The Corporation makes this affidavit in
order to induce Xxxxxxx Title Guaranty Company, Commonwealth
Land Title Insurance Company and Lawyers Title Insurance
Corporation (the "Title Companies") to issue a title policy to
Buyer. The Corporation is aware that the Title Companies will
rely on the statements made in this affidavit and on its
truthfulness.
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx, Executive Vice
President-Finance & Chief
Financial Officer
Signed and sworn to before
me on January 26, 1998
/s/ Xxxxx Xxxxxxxx XXXXX XXXXXXXX
Notary Public NOTARY PUBLIC-STATE OF FLORIDA
MY COMMISSION EXPIRES 6/20/98
COMMISSION NUMBER CC385040
EXHIBIT 4.2(H)
ESTOPPEL CERTIFICATE OF LANDLORD (SELLER)
25
EXHIBIT 4.2(H)
LANDLORD ESTOPPEL CERTIFICATE
This LANDLORD ESTOPPEL CERTIFICATE (this "Certificate") is
made as of this 27TH day of JANUARY, 1998 by SUN INTERNATIONAL
NORTH AMERICA, INC., a Delaware corporation having an address at
0000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Landlord"), to
ATLANTIC CITY SHOWBOAT, INC., a New Jersey corporation having an
address at 000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
("Tenant") and SHOWBOAT LAND LLC. ("Purchaser").
W I T N E S S E T H
WHEREAS, Landlord (formerly known as Resorts International
Inc.) and Tenant entered into that certain Lease Agreement dated
October 26, 1983, as amended by the First Amendment to Lease
Agreement dated January 15, 1985, the Second Amendment to Lease
Agreement dated July 5, 1985, the Third Amendment to Lease
Agreement dated October 28, 1985, the Restated Third Amendment to
Lease Agreement dated August 28, 1986, the Fourth Amendment to
Lease Agreement dated December 16, 1986, the Fifth Amendment to
Lease Agreement dated March 2, 1987, the Sixth Amendment to Lease
Agreement dated March 13, 1987, the Seventh Amendment to Lease
Agreement dated October 18, 1988, and the Eighth Amendment to
Lease Agreement dated May 18, 1993, for real property designated
as Xxx 000 xx Xxxxx 00, Xxxxxxxx Xxxx, Xxx Xxxxxx (the
"Property"), (the Lease Agreement and all amendments thereto,
collectively, the "Lease");
WHEREAS, Landlord has offered to sell the Property to Tenant
in accordance with the Lease; and
WHEREAS, Tenant has accepted Landlord's offer; and
WHEREAS, Tenant has requested that Landlord sell the
Property to Purchaser, in lieu of selling the Property to Tenant
and, in connection therewith, that Landlord assign its rights
under the Lease to Purchaser, provided Purchaser assumes the
obligations under the Lease pursuant to the terms and conditions
of the Assignment and Assumption of Lease Agreement; and
WHEREAS, Landlord, as an accommodation to Tenant, has agreed
to sell the Property to Purchaser pursuant to the terms and
conditions of the Agreement of Purchase and Sale; and
WHEREAS, the Purchase Agreement (hereinafter defined), as a
condition of such sale, requires, among other things, this
Certificate be delivered by Landlord.
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Landlord certifies to Purchaser
and Tenant as follows:
a. The Lease is in full force and effect and has not been
modified, supplemented or amended in any way except to
the extent set forth in the first recital hereof.
b. The Lease represents the only lease, agreement or
understanding between the Landlord and Tenant affecting
the Property or the use thereof, except for that
certain Agreement as to Assumption of Obligations With
Respect to Properties between Tenant and Xxxxx Xxx
Mahal Realty Corp. and Xxxxx Xxx Xxxxx Associates
Limited Partnership dated September 21, 1988, as
amended (the "Assumption Agreement").
c. All monetary obligations of Tenant to Landlord have
been fully satisfied. To the knowledge of the
undersigned, all other conditions under the Lease to be
performed by Tenant have been fully satisfied, and as
of the date hereof, there are no existing defenses or
offsets which Landlord has against the enforcement of
the Lease by Tenant.
d. To the knowledge of the undersigned, (i) Tenant is not
in default under the Lease, and (ii) no event has
occurred, nor does any condition exist, which with
notice or the passage of time would constitute such a
default. Landlord is not in default under the Lease
and no event has occurred which, after lapse of time
and/or notice thereof to any person, would constitute a
default thereunder.
e. Landlord has no claim, action or lien against Tenant
for any maintenance costs or payments with respect to
the Common Areas.
f. There are no allowances presently due or to become due,
from Tenant to Landlord, on account of its improvements
or otherwise.
g. No Rent (as defined in the Lease) has been prepaid by
more than 30 days beyond the date hereof with respect
to the Lease.
h. Landlord has not assigned, hypothecated or pledged its
interest in the Lease or Rent payable under the Lease,
other than the pledge thereof by Landlord to The Bank
of New York, as Trustee, which pledge will be released
concurrently with the sale of the Property.
i. Landlord has not received any written notice of any
pending or threatened condemnation action with respect
to all or any portion of the Property, and to the best
of Landlord's knowledge, there are no existing
condemnation or other legal proceedings affecting the
Property by any governmental authority having
jurisdiction over or affecting all or any part of the
Property.
j. No permission, consent or approval by any third party
or, to the best of Landlord's knowledge, any
governmental authority is required to be obtained by in
order for Seller to consummate the transactions
contemplated hereby, except the consent or approval of
the New Jersey Casino Control Commission which may be
required to be obtained by Tenant and/or Purchaser.
k. Landlord has not received written notice that the
Property is in violation of any Environmental Laws (as
defined in the Purchase Agreement). Landlord has not
received written notice of a threatened or pending
Regulatory Action (as defined in the Purchase
Agreement) and has not received any notification that
it is or may be potentially responsible or liable for
clean-up, testing or other remedial activities at any
site including, without limitation, the Property.
2
l. To the best of Landlord's knowledge, there are no
actions, suits or proceedings pending or threatened
affecting the Property or any portion thereof.
m. Landlord hereby acknowledges that Tenant and Purchaser
may rely on the matters herein set forth, and
hereafter, Landlord may be estopped from denying the
veracity or accuracy of the matters herein set forth.
IN WITNESS WHEREOF, the undersigned has executed this
Agreement as of the date first set forth above.
SUN INTERNATIONAL NORTH AMERICA,
INC.
By: /S/ XXXX XXXXXXX
Xxxx Xxxxxxx
Executive Vice-President-Finance &
Chief Financial Officer
STATE OF FLORIDA :
: SS
COUNTY OF BROWARD :
BE IT REMEMBERED, that on this 27th day of January , 1998,
before me, the subscriber, a Notary Public of Florida (State),
personally appeared Xxxx Xxxxxxx, Executive Vice-President-Finance
& Chief Financial Officer of Sun International North America, Inc.,
who, I am satisfied, is the person who signed, sealed and
delivered the same as such officer aforesaid, and that the
within instrument is the voluntary act and deed of such corporation.
/S/ XXXXX XXXXXXXX
EXHIBIT 4.3(C)
TENANT ESTOPPEL CERTIFICATE
This TENANT ESTOPPEL CERTIFICATE (this "Certificate") is
made as of this 27TH day of JANUARY , 1998 by ATLANTIC CITY
SHOWBOAT, INC., a New Jersey corporation having an address at 000
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Tenant") to SUN
INTERNATIONAL NORTH AMERICA, INC., a Delaware corporation having
an address at 0000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
("Landlord").
W I T N E S S E T H
WHEREAS, Landlord (formerly known as Resorts International
Inc.) and Tenant entered into that certain Lease Agreement dated
October 26, 1983, as amended by the First Amendment to Lease
Agreement dated January 15, 1985, the Second Amendment to Lease
Agreement dated July 5, 1985, the Third Amendment to Lease
Agreement dated October 28, 1985, the Restated Third Amendment to
Lease Agreement dated August 28, 1986, the Fourth Amendment to
Lease Agreement dated December 16, 1986, the Fifth Amendment to
Lease Agreement dated March 2, 1987, the Sixth Amendment to Lease
Agreement dated March 13, 1987, the Seventh Amendment to Lease
Agreement dated October 18, 1988, and the Eighth Amendment to
Lease Agreement dated May 18, 1993, for real property designated
as Xxx 000 xx Xxxxx 00, Xxxxxxxx Xxxx, Xxx Xxxxxx (the
"Property"), (the Lease Agreement and all amendments thereto,
collectively, the "Lease");
WHEREAS, Landlord has offered to sell the Property to Tenant
in accordance with the Lease; and
WHEREAS, Tenant has accepted Landlord's offer; and
WHEREAS, Tenant has requested that Landlord sell the
Property to Purchaser, in lieu of selling the Property to Tenant
and, in connection therewith, that Landlord assign its rights
under the Lease to Purchaser, provided Purchaser assumes the
obligations under the Lease pursuant to the terms and conditions
of the Assignment and Assumption of Lease Agreement; and
WHEREAS, Landlord, as an accommodation to Tenant, has agreed
to sell the Property to Purchaser pursuant to the terms and
conditions of the Agreement of Purchase and Sale; and
WHEREAS, Landlord, as a condition of such sale, requires,
among other things, this certificate be delivered by Tenant.
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Tenant certifies to Purchaser
and Landlord as follows:
a. The Lease is in full force and effect and has not been
modified, supplemented or amended in any way except to
the extent set forth in the first recital hereof.
b. The Lease represents the only lease, agreement or
understanding between the Landlord and Tenant affecting
the Property or the use thereof, except for that
certain Agreement as to Assumption of Obligations With
Respect to Properties between Tenant and Xxxxx Xxx
Mahal Realty Corp. and Xxxxx Xxx Xxxxx Associates
Limited Partnership dated September 21, 1988, as
amended (the "Assumption Agreement").
c. All conditions under the Lease to be performed by
Landlord have been fully satisfied, and as of the date
hereof, there are no existing defenses or offsets which
Tenant has against the enforcement of the Lease by
Landlord.
d. To the knowledge of the undersigned, (i) Landlord is
not in default under the Lease, and (ii) no event has
occurred, nor does any condition exist, which with
notice or the passage of time would constitute such a
default. Tenant is not default under the Lease and no
event has occurred which, after lapse of time and/or
notice thereof to any person, would constitute a
default thereunder.
e. Landlord has paid its share of all maintenance costs
and payments to the Common Areas, as defined in the
Lease, and Tenant has no claim, action or lien against
Landlord for any such maintenance costs or payments.
f. There are no allowances presently due or to become due,
from Landlord to Tenant, on account of its improvements
or otherwise.
g. No Rent (as defined in the Lease) has been prepaid by
more than 30 days beyond the date hereof with respect
to the Lease.
h. Tenant has no knowledge of any assignment,
hypothecation or pledge of the Lease or Rent payable
under the Lease, other than the pledge thereof by
Landlord to The Bank of New York, as Trustee, which
pledge will be released concurrently with the sale of
the Property and other than the pledge thereof by
Tenant to Fleet Bank, N.A. and IBJ Xxxxxxxx Bank and
Trust Company, as trustee.
i. No portion of the Property has been sublet and Tenant
is the only occupant of the Property, except retail
store subleases between Tenant and third persons.
j. Tenant has not received any written notice of any
pending or threatened condemnation action with respect
to all or any portion of the Property, and to the best
of Tenant's knowledge, there are no existing
condemnation or other legal proceedings affecting the
Property by any governmental authority having
jurisdiction over or affecting all or any part of the
Property.
2
k. No permission, consent or approval by any third party
or, to the best of Tenant's knowledge, any governmental
authority is required to be obtained by Tenant in order
for Seller to consummate the transactions contemplated
hereby, except the consent or approval of the New
Jersey Casino Control Commission which may be required
to be obtained by Tenant and/or Purchaser.
l. There are no actions, suits or proceedings pending or,
to the best of Tenant's knowledge, threatened affecting
the Property or any portion thereof.
m. Tenant has not received written notice that the
Property is in violation of any Environmental Laws (as
defined in the Purchase Agreement). Tenant has no
knowledge of the release of Hazardous Substance (as
defined in the Purchase Agreement) on or from the
Property or to the Property from any adjacent property,
or any potential or known liability which has resulted
in or may result in a lien on the Property or which is
or may result in a violation of any Environmental Laws.
Tenant has not received written notice of a threatened
or pending Regulatory Action (as defined in the
Purchase Agreement) and has not received any
notification that it is or may be potentially
responsible or liable for clean-up, testing or other
remedial activities at any site including, without
limitation, the Property.
n. Tenant hereby acknowledges that Landlord and Purchaser
may rely on the matters herein set forth, and
hereafter, Tenant may be estopped from denying the
veracity or accuracy of the matters herein set forth.
IN WITNESS WHEREOF, the undersigned has executed this
Agreement as of the date first set forth above.
ATLANTIC CITY SHOWBOAT, INC.
By: /S/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
President
3
STATE OF NEW JERSEY :
: SS
COUNTY OF ATLANTIC :
BE IT REMEMBERED, that on this 27TH day of January, 1998,
before me, the subscriber, a Notary Public of New Jersey (State),
personally appeared Xxxxxxx X. Xxxxx, President of Atlantic City
Showboat, Inc., who, I am satisfied, is the person who signed,
sealed and delivered the same as such officer aforesaid, and that
the within instrument is the voluntary act and deed of such
corporation.
/S/ XXXXXX X. XXXXXXX
