EXHIBIT 10(by)
SIXTH AMENDMENT TO OPERATING
LEASE AGREEMENT AND FIFTH AMENDMENT TO
EXPANSION OPERATING LEASE AGREEMENT
-----------------------------------
THIS SIXTH AMENDMENT TO OPERATING LEASE AGREEMENT AND FIFTH
AMENDMENT TO EXPANSION OPERATING LEASE AGREEMENT (this "Sixth Amendment & Fifth
Expansion Amendment"), dated as of the 30th day of September, 1998, to (a) that
certain OPERATING LEASE AGREEMENT, dated as of the 31st day of October, 1983, by
and between ATLANTIC CITY BOARDWALK ASSOCIATES, L.P., a New Jersey limited
partnership having a place of business at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx 00000 ("Lessor"), and THE CLARIDGE AT PARK PLACE, INCORPORATED, a
New Jersey corporation having its principal place of business at The Claridge
Hotel and Casino, Indiana Avenue and the Boardwalk, Xxxxxxxx Xxxx, Xxx Xxxxxx
00000 ("Lessee"), a Memorandum of which was recorded in the Atlantic County
Clerk's office on October 31, 1983, in Book 3850 Page 204 (the "Operating
Lease") and (b) that certain EXPANSION OPERATING LEASE AGREEMENT, dated as of
the 17th day of March, 1986 by and between Lessor and Lessee, a Memorandum of
which was recorded in the Atlantic County Clerk's office on March 18, 1986 in
Book 4215 Page 128 (the "Expansion Operating Lease").
W I T N E S S E T H:
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WHEREAS, pursuant to the Operating Lease and the Expansion
Operating Lease, Lessor is leasing to Lessee certain land and air rights more
particularly described in Exhibits "A" and "B" respectively, annexed hereto and
made a part hereof, and the buildings and improvements located thereon, situate,
lying and being in the County and City of Atlantic, State of New Jersey, all as
more particularly defined in the Operating Lease and the Expansion Operating
Lease; and
WHEREAS, pursuant to that certain Amendment to Operating Lease
Agreement and the Expansion Operating Lease Agreement dated June 15, 1989,
between Lessor and Lessee (the "First
Amendment"), Lessor and Lessee amended certain terms and provisions of the
Operating Lease and Expansion Operating Lease; and
WHEREAS, pursuant to that certain Second Amendment to Operating
Lease Agreement and Expansion Operating Lease Agreement dated March 27, 1990
between Lessor and Lessee (the "Second Amendment"), Lessor and Lessee further
amended certain terms and provisions of the Operating Lease and the Expansion
Operating Lease; and
WHEREAS, pursuant to that certain Third Amendment to Operating
Lease Agreement and Expansion Operating Lease Agreement dated as of August 1,
1991, between Lessor and Lessee (the "Third Amendment"), Lessor and Lessee
further amended certain terms and provisions of the Operating Lease and the
Expansion Operating Lease; and
WHEREAS, pursuant to that certain Fourth Amendment to Operating
Lease Agreement dated as of January 31, 1994, between Lessor and Lessee (the
"Fourth Amendment"), Lessor and Lessee further amended certain terms and
provisions of the Operating Lease; and
WHEREAS, pursuant to that certain Fifth Amendment to Operating
Lease Agreement and Fourth Amendment to Expansion Operation Lease Agreement,
dated as of March 1, 1997, between Lessor and Lessee (the "Fifth Amendment"),
Lessor and Lessee further amended certain terms and provisions of the Operating
Lease; and
WHEREAS, Lessor and Lessee have entered into an Expandable
Wraparound Mortgage Agreement, dated October 31, 1983, and amended as of March
17, 1986 and as of June 15, 1989 (the Wraparound Mortgage Agreement, as so
amended, is hereinafter referred to as the "Wraparound Mortgage Agreement"),
which contemplated the execution and delivery by Lessor to Lessee of a
Wraparound Mortgage Note, dated October 31, 1983, which has been amended on
several occasions prior to the date hereof (such Wraparound Mortgage Note, as so
amended, is hereinafter referred to as the "Wraparound Mortgage Note"), and a
Wraparound Mortgage, dated October 31, 1983, which has been amended on several
occasions prior to the date hereof; and
WHEREAS, the Fifth Amendment provides "in the event the Lessee is
awarded a judgment or receives a settlement in connection with the Lessee's
claim against the general contractor or any other parties arising out of the
self-parking garage accident, an amount of proceeds from such award or
settlement not to exceed the outstanding balance of the Deferred Rent under
clause (ii) of Paragraph 1(b)" of the Fifth Amendment shall be paid to the
Lessor;
WHEREAS, the Lessee is considering a settlement offer in respect
of the claim described in the preceding Recital; however, Lessee may be
unwilling to enter into such settlement because after payment to the Lessor in
accordance with the provision quoted in the preceding Recital, the portion of
the proceeds of the settlement left to Lessee after such payment would not
provide a material benefit to the Lessee;
WHEREAS, the Lessor is willing to delete the provision described
in the second preceding recital as an inducement to the Lessee's entering into
such a settlement; and
WHEREAS, the parties now desire to further modify certain terms
and provisions of the Operating Lease and the Expansion Operating Lease, as same
have been amended by the First Amendment, Second Amendment, Third Amendment,
Fourth Amendment and Fifth Amendment.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. (a) The following language appearing in Paragraph 1(b) of the Fifth
Amendment is hereby deleted in its entirety (but without thereby limiting the
effect of such language (i) to set forth the agreement of the parties from March
1, 1997 to the date hereof or (ii) to characterize $867,593 of reduction in
Basic Rent as a rent abatement):
"(i) The Basic Rent payable on March 1, 1997 shall
be reduced to an amount so that the total amount of Basic
Rent payable on March 1, 1997 shall be $1,927,607;
(ii) The foregoing reduction in Basic Rent consist
of $867,953 of rent abatement and $1,300,000 of Deferred
Rent (as that term is defined in the Third Amendment);
(iii) The $1,300,000 of Deferred Rent referred to
in clause (ii) above shall be paid by the Lessee to the
Lessor under the circumstances set forth in the Third
Amendment and as follows: $25,000 shall be payable each
month after March of 1997 for the remainder of 1997,
$50,000 shall be payable monthly for the year 1998 and
thereafter until the foregoing rent deferral is paid in
full, provided, however, that in the event the Lessee is
awarded a judgment or receives a settlement in connection
with the Lessee's claim against the general contractor or
any other parties arising out of the self-parking garage
accident, an amount of proceeds from any such award or
settlement not to exceed the outstanding balance of the
Deferred Rent under clause (ii) above shall be paid to
the Lessor;
(iv) For the period commencing on April 1, 1997
and ending on December 31, 1997, and for each calendar
year thereafter through and including the calendar year
ending on December 31, 2003, Basic Rent payable during
each such calendar year shall be abated in amounts to be
determined by Lessee (the "Abatement") in its reasonable
discretion, provided that:
(A) Lessor shall have the right to limit the Abatement
allocated to any particular calendar year or to require the Lessee to pay
Additional Rent, to the extent required to cover the payments described in
subsections (1) and (2) of the last paragraph of Section 1 of the First
Amendment (which includes all payment due under the Expandable Wraparound
Mortgage Loan Agreement dated October 31, 1983, as amended); and (B) the
Abatement, determined without reference to this clause
(B), shall be reduced by $83,333 for each month of the
period commencing on January 1, 1999 and ending on December 31, 2000; $125,000
for each month of the calendar year 2001 and; $166,667 for each month of each
calendar year thereafter through and including the calendar year ending on
December 31, 2003.
(b) The following language is hereby inserted in
place of the language deleted pursuant to subparagraph (a) above:
"(i) (A) If all of the conditions set forth in
Sub-clauses (A) and (B) of Paragraph 4 hereof are
satisfied on February 1, 1999 (treating each reference to
"March 2, 1999" in those Sub-clauses as "February 1,
1999"), then the Basic, Additional and Expansion Rent
payable on February 1, 1999 shall be reduced to an amount
so that the total amount of Basic, Additional and
Expansion Rent payable on February 1, 1999 shall be
$684,123.03, and (B) if all of such conditions are not
satisfied on February 1, 1999 but are satisfied on or
before March 2, 1999, then the Basic, Additional and
Expansion Rent due on March 1, 1999 shall be reduced to
an amount so that the total amount of Basic, Additional
and Expansion Rent payable on March 1, 1999 shall be
$665,198.50.
(ii) The foregoing reduction, if any, in Basic,
Additional and Expansion Rent payable on February 1, 1999
or March 1, 1999 consists of $1,100,000, of Deferred Rent
(as that term is defined in the Third Amendment);
(iii) On the earlier of (x) the Maturity Date of
the Wraparound Mortgage Note, (y) such earlier date, if
any, as the entire principal amount of the Wraparound
Mortgage Note becomes due and payable or (z) the date on
which any merger, consolidation or similar transaction to
which the Lessee or The Claridge Hotel and Casino
Corporation ("CHCC") is a party or any sale of all or
substantially all of the assets of the Lessee or CHCC is
consummated or any change of control in the Lessee or
CHCC occurs, the Lessee shall pay the Lessor $3,500,000
in additional Basic Rent;
(iv) The $1,100,000 of Deferred Rent, if any,
referred to in clause (ii) above shall be paid by the
Lessee to the Lessor under the circumstances set forth in
clause (vii) below and as follows: $25,000 shall be
payable monthly commencing January 1, 2000 and thereafter
until the foregoing rent deferral is paid in full;
(v) For the period commencing on April 1, 1997 and
ending on December 31, 1997, and for each calendar year
thereafter through and including the calendar year ending
on December 31, 2004, Basic Rent payable during each such
calendar year shall be abated in amounts to be determined
by Lessee (the "Abatement") in its reasonable discretion,
provided that:
(A) Lessor shall have the right to limit the Abatement
allocated to any particular calendar year or to require the Lessee to pay
Additional Rent, to the extent required to cover the payments described in
subsections (1) and (2) of the last paragraph of Section 1 of the First
Amendment (which includes all payment due under the Expandable Wraparound
Mortgage Loan Agreement dated October 31, 1983, as amended); and
(B) the Abatement, determined without reference to this
clause (B), shall be reduced by $83,333 for each month of the period commencing
on January 1, 2000 and ending on December 31, 2000; $130,000 for each month of
the calendar year 2001; $180,000 for each month of each calendar year thereafter
through and including the calendar year ending on December 31, 2003; and
$130,000 for each month of the period commencing on January 1, 2004 and ending
on December 31, 2004 (it being understood that it is the intention of the
parties that the purpose of this Sub-clause (B) is to permit the Lessor to
retain, out of the payments of Basic Rent made by the Lessee to the Lessor for
each month set forth in this Sub-clause and after payment by the Lessor of its
obligations for such month but before giving effect to any Deferred Rent payable
to the Lessor for such month under clause (ii) above and clause (vi) below or
otherwise, the amount for such month set forth in this Subclause);
(vi) The $1,300,000 of Deferred Rent referred to
in clause (ii) of Paragraph 1(b) of the Fifth Amendment
shall be paid by the Lessee to the Lessor under the
circumstances set
forth in clause (vii) below and as follows: $25,000 shall
be payable each month after March of 1997 for the
remainder of 1997, $50,000 shall be payable monthly for
the year 1998 and thereafter until the foregoing rent
deferral is paid in full; and
(vii) Any portion of the $1,100,000 of Deferred
Rent, if any, referred to in clause (ii) above or of the
$1,300,000 of Deferred Rent referred to in clause (vi)
above that at the time has not been paid shall become due
and payable (A) in full upon (x) the consummation of any
merger, consolidation or similar transaction to which the
Lessee or CHCC is a party or of any sale of all or
substantially all the assets of the Lessee or of CHCC, or
(y) any change of control of the Lessee or of CHCC, and
(B) in the event the Lessee is awarded a judgment or
receives a settlement in the connection with Lessee's
claim against the general contractor or any other parties
arising out of its self-parking garage accident in an
amount exceeding $4,000,000, in an amount up to 75% of
such excess (but not exceeding the aggregate amount of
such Deferred Rent that has not been paid).
2. This Sixth Amendment & Fifth Expansion Amendment is subject to prior
approval by the New Jersey Casino Control Commission (the "Commission") and
shall not become effective until approval by the Commission has been granted.
Lessee shall use its best efforts to obtain such consent as promptly as
practical.
3. This Sixth Amendment & Fifth Expansion Amendment shall not become
effective unless and until the Lessor and Lessee have entered into (a) an
amendment to the Restructuring Agreement, dated March 1, 1997, in the form
attached hereto as Exhibit A and (b) an amendment to the Wraparound Mortgage
Agreement and Wraparound Mortgage Note in the form attached hereto as Exhibit B.
4. This Agreement, other than clause (iii) of Paragraph 1(b), shall be
null and void ab initio unless (A) both of the following events have occurred on
or prior to March 2, 1999: (i) the Lessee shall have received at least
$2,200,000 (net of associated unpaid legal expenses) in connection with its
settlement of the parking garage litigation, and (ii) the Lessee or its parent
corporation shall have paid all amounts due to its public noteholders,
including, but not limited to, a payment of approximately $5,000,000 interest on
such notes due
on February 1, 1999, and (B) no defaults shall exist under the notes or under
the first mortgage on the Lessee's premises at March 2, 1999 and no events, acts
or omissions have occurred (unless cured on or prior to March 2, 1999) or exist
at March 2, 1999 which, with the passage of time, the giving of notice or both,
could result in such a default.
5. All of the obligations, terms and conditions set forth in the
Operating Lease and the Expansion Operating Lease, as same have been amended by
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, and the Fifth Amendment, shall remain unchanged and in full force and
effect, except as specifically modified herein.
6. This Sixth Amendment & Fifth Expansion Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Sixth Amendment & Fifth Expansion Amendment the day and year first above
written.
LESSOR:
Signed, Sealed and Delivered ATLANTIC CITY BOARDWALK
the Presence of or Attested by: ASSOCIATES, L.P.
/s/ Xxxxxxx Xxxxxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
LESSEE:
Signed, Sealed and Delivered THE CLARIDGE AT PARK PLACE,
in the Presence of or Attested INCORPORATED
by:
/s/ Xxxxx X. Xxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxxx
Senior Vice President and Title: President/Chief Operating Officer
General Counsel
STATE OF NEVADA )
: ss.:
COUNTY OF XXXXX )
BE IT REMEMBERED, that before me, the subscriber, a Notary Public
of the State of Nevada , personally appeared Xxxxxxx X. Xxxxxxx of ATLANTIC CITY
BOARDWALK ASSOCIATES, L.P., a limited partnership, who, I am satisfied, is the
person who has signed the within instrument; and having first made known to me
the contents thereof, he thereupon acknowledged that he signed and delivered the
said instrument as his voluntary act and deed and as the voluntary act and deed
of ATLANTIC CITY BOARDWALK ASSOCIATES, L.P., a limited partnership.
/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------
Notary Public
My Commission Expires:
STATE OF NEW JERSEY)
: ss.:
COUNTY OF ATLANTIC )
BE IT REMEMBERED, that before me, the subscriber, a Notary Public
of the State of New Jersey, personally appeared Xxxxxx X. Xxxxxxx of THE
CLARIDGE AT PARK PLACE, INCORPORATED, a New Jersey corporation, and he thereupon
acknowledged that he signed the foregoing instrument as officer, that the seal
affixed to said instrument is the corporate seal of said corporation, and that
said instrument is the voluntary act and deed of said corporation, made by
virtue of authority from its Board of Directors, and as the voluntary act and
deed of THE CLARIDGE AT PARK PLACE, INCORPORATED, a corporation.
/s/ Xxxxxxx Xxxxxx
--------------------
Notary Public
My Commission Expires:
EXHIBIT A
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AMENDMENT TO RESTRUCTURING AGREEMENT
WHEREAS, the Claridge Hotel and Casino Corporation, a New York
corporation (the "Corporation"), The Claridge at Park Place, Incorporated, a New
Jersey corporation ("CPPI"), and Atlantic City Boardwalk Associates, L.P., a New
Jersey limited partnership ("ACBA"), entered into a Restructuring Agreement,
dated March 1, 1997 (the "Restructuring Agreement") (terms not defined in this
Amendment shall have the meanings given to them in the Restructuring Agreement).
WHEREAS, ACBA is considering entering into a Sixth Amendment to
the operating lease and a Fifth Amendment to the expansion operating lease,
dated as of September 30, 1998 (the "Sixth Amendment"); and
WHEREAS, CHCC and CPPI desire to amend certain provisions of the
Restructuring Agreement, as set forth below;
NOW, THEREFORE, as an inducement to ACBA's entering into the
Sixth Amendment, the parties hereto hereby agree as follows:
1. Amendments
The Restructuring Agreement is hereby amended in the following
respects:
(a) The language in subclauses (i) and (ii) of Section 2(b) of
the Restructuring Agreement shall be amended to read in their
entirety as follows:
(i) The definition of "Maturity Date" in Section 1 of the
Expandable Wraparound Mortgage Loan Agreement will be
amended by replacing "September 30, 2000" with "January
1, 2005".
(ii) Section 9 of the First Amendment will be amended as
follows:
a. In Section 2.1(a)(i), the reference to "September
30, 2000" will be replaced with "January 1, 2005".
(b) The language in Section 2(e) of the Restructuring
Agreement shall be amended to read in its entirety as
follows:
(e) CPPI acknowledges that Section 2.11 of the Wraparound
Mortgage Agreement shall apply to a failure by CPPI to
pay any amounts due under the Operating Lease and that
such Section and Section 7.3 apply to a failure by CPPI
to pay the $1,300,000 of Deferred Rent or the $1,100,000
of Deferred Rent in accordance with the terms of the
Sixth Amendment to Operating Lease Agreement and Fifth
Amendment to Expansion Operating Lease Agreement, dated
as of the 30th day of September 1998, between ACBA and
CPPI.
2. Neither ACBA nor its partners shall be personally liable to the
Corporation or CPPI for (a) the non-payment of any principal of or interest on
the Wraparound Mortgage Note, (b) the non-payment of any other
amount owing to the Corporation or CPPI under the Restructuring Agreement (as
amended hereby), or (c) damages arising out of the failure to perform any
obligation under the Restructuring Agreement (as amended hereby), the
Corporation and CPPI's recourse being expressly limited to the collateral (as
such term is defined in the Wraparound Mortgage Agreement); provided, however,
that except as expressly set forth herein nothing contained in this
Restructuring Agreement shall limit, restrict or impair the rights of the
Corporation or CPPI to accelerate the maturity of the Wraparound Mortgage Note
and all other Indebtedness (as such term is defined in the Wraparound Mortgage
Agreement) upon the occurrence of an Event of Default (as such term is defined
in the Wraparound Mortgage Agreement), to bring suit and obtain a judgment
against ACBA or its general partners on the Wraparound Mortgage Note and such
other Indebtedness ( so long ACBA or its partners shall not have any personal
liability upon any such judgment except to the extent of its interest in the
collateral and the satisfaction thereof shall be limited to the Collateral) or
to exercise all rights and remedies provided in the Restructuring Agreement (as
amended hereby), or otherwise to realize upon the Collateral. This paragraph
shall not be deemed to be a waiver by the Corporation or CPPI of any claims in
the nature of fraud or deceit arising under or in connection with the
Restructuring Agreement (as amended hereby).
3. Except as specifically amended herein, all of the obligations, terms
and conditions set forth in the Restructuring Agreement shall remain unchanged
and in full force and effect.
4. This Amendment to the Restructuring Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment to the Restructuring Agreement as of the 30th day of September, 1998.
THE CLARIDGE HOTEL AND CASINO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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THE CLARIDGE AT PARK PLACE, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
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ATLANTIC CITY BOARDWALK ASSOCIATES, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
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EXHIBIT B
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AMENDMENT TO WRAPAROUND MORTGAGE AGREEMENT AND NOTE
WHEREAS, The Claridge at Park Place, Incorporated, a New Jersey
corporation ("CPPI"), and Atlantic City Boardwalk Associates, L.P., a New Jersey
limited partnership ("ACBA"), have entered into an Expandable Wraparound
Mortgage Agreement, dated October 31, 1983, and amended as of March 17, 1986
(the "First Amendment") and as of June 15, 1989 (the "Second Amendment") (the
Wraparound Mortgage Agreement, as so amended, is hereinafter referred to as the
"Wraparound Mortgage Agreement"), which contemplated the execution and delivery
by ACBA to CPPI of a Wraparound Mortgage Note, dated October 31, 1983, which has
been amended on several occasions prior to the date hereof (such Wraparound
Mortgage Note, as so amended, is hereinafter referred to as the "Wraparound
Mortgage Note"), and a Wraparound Mortgage, dated October 31, 1983, which has
been amended on several occasions prior to the date hereof; and
WHEREAS, the parties are considering entering into a Sixth
Amendment to the operating lease and a Fifth Amendment to the expansion
operating lease, dated as of September 30, 1998 (the "Sixth Amendment"); and
WHEREAS, the parties desire to amend certain provisions of the
Wraparound Mortgage Note, as set forth below;
NOW, THEREFORE, as an inducement to ACBA's entering into the
Sixth Amendment, the parties hereto hereby agree as follows:
1. Amendments
The Wraparound Mortgage Agreement and Wraparound Mortgage Note
are hereby amended so that the payments of principal required to be made by ACBA
thereunder in October, November and December 1998 (an aggregate of $3,500,000 in
principal payments) shall be made on the earlier of (x) the Maturity Date of the
Wraparound Mortgage Agreement and Wraparound Mortgage Note, (y) such earlier
date, if any, as the entire principal amount of the Wraparound Mortgage Note
becomes due and payable or (z) the date on which any merger, consolidation or
similar transaction to which CPPI or The Claridge Hotel and Casino Corporation
("CHCC") is a party or any sale of all or substantially all of the assets of
CPPI or CHCC is consummated or any change of control in CPPI or CHCC occurs
2. Except as specifically amended herein, all of the obligations,
terms and conditions set forth in the Wraparound Mortgage Agreement and
Wraparound Mortgage Note shall remain unchanged and in full force and effect.
3. This Amendment to the Wraparound Mortgage Agreement and
Wraparound Mortgage Note may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment to the Wraparound Mortgage Agreement and Note as of the 30th day of
September, 1998.
THE CLARIDGE AT PARK PLACE, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
ATLANTIC CITY BOARDWALK ASSOCIATES, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
