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HomeMy WebLinkAboutExhibit-1TERM SHEET REQUEST BY HORIZON'S EDGE CASINO CRUISES TO ASSUME CONCORDE CRUISES, INC.'S AGREEMENTS FOR OPERATION OF GAMING VESSEL AT BAYFRONT PARK 1. Objective: To cure Concorde Cruises Inc.'s defaults under the Use, Valet Parking and Warehouse Agreements (the "Agreements") and to continue to operate a Gaming Vessel from Bayfront Park under the terms of the Agreements. 2. Cure: Upon assumption of the Agreements, which shall occur not later than ten (10) calendar days after approval by the City Commission, Miami Star Casino LLC, d/b/a Horizon's Edge Casino Cruises ("Horizon's") shall pay to the Trust the sum of $339,679.48, representing amounts owed to the Trust by Concorde Cruises Inc. ("Concorde"), as follows: Dock: $269,679.48 (including taxes) Warehouse: $ 25,000.00 (non-taxable) Valet: $ 45,000.00 (non-taxable) 3. Assumption of Agreements: Horizon proposes to assume the Agreements on the following conditions: 1. Term: Horizons requests: (i) an option to extend the term of the Use Agreement for (5) years (currently, the exercise of the option is subject to Trust's approval). (ii) extend the term of the Valet Parking and Warehouse Agreements to run concurrent with the term of the Use Agreement. 2. Termination Rights: Horizon requests the right to terminate the Use Agreement (and consequently the Valet Parking and Warehouse Agreements), upon 60 days written notice, if the new Florida law authorizing parimutuel facilities to offer Las Vegas style slot machine gaming in Broward County results in a decline of passenger counts to less than 80% of the annualized passenger count in any quarter. For purposes of this provision, the annualized passenger count for 2005 shall be deemed to have been 161,972. Currently the agreement permits termination if casino gaming becomes legal in Florida resulting in User's passenger count declining to less than 80% of the count in the prior year. Horizon proposes a termination fee in the amount of $100,000. Currently the agreement calls for a termination fee in an amount to be negotiated, but not less than 1 years use fees. ors: Document 4416 ag 01 7,3 � = 1 3. Additional Amendment: (i) Real Property Taxes: Horizon agrees that if its activities under the Agreements result in taxes being assessed on the Property, it will pay those taxes or the Agreements will be terminated. (ii) Dock Repairs: The Trust will endeavor to obtain FEMA's refund of the amount expended for dock repairs. In the event FEMA does not agree to reimburse the Trust within 60 days of Horizon's assumption of the Agreements, then the Trust may apply a potion of the $100,000 deposit and Horizons will replenish the deposit within 30 days of Trust's request. (iii) Valet Parking: Will be amended to allow the Trust to relocate it if needed in connection with Rock Garden renovations. 4. Guaranty: Concorde's Guaranty shall remain in effect during the term of the Use Agreement. 5. Release: Horizon shall accept the properties subject to the Agreements in "as is" condition, as of the date of assumption, and shall release the Trust from all obligations under the Agreements, if any, accruing prior to the date of .05- 0667the assumption of the Agreements. ors:Document 4416 2 AMENDMENT, ASSIGNMENT AND ASSUMPTION OF USE AGREEMENT This Amendment, Assignment and Assumption of Use Agreement (the "Amendment") is entered into as of December 16, 2005 between BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the City of Miami (the "Trust"), CONCORDE CRUISES, INC., a South Dakota corporation ("Assignor") and MIAMI STAR CASINO, LLC, a Florida limited liability company, d/b/a Horizon's Edge Casino Cruises ("Assignee") for the purpose of providing for the assignment by Assignor to Assignee of that certain Use Agreement dated as of June 25, 1997 between the Trust and Concorde as successor in interest to Bayfront Ventures, as amended by (i) Amendment to Use Agreement, September 26, 1997, (ii) Amendment No. 2, dated 2001 and approved by see Miami Resolution No. 01-879, adopted by the City of Miami Commission on September 13, 2001, (iii) the Transfer, Assumption and Consent to Transfer of Use Agreement, dated March 28, 2000, and (iv) Third Amendment dated June 27, 2002, (as amended, the "Use Agreement"). RECITALS WHEREAS, Assignor wishes to assign the Use Agreement to Assignee and Assignee is willing to assume the Use Agreement, and WHEREAS, Assignor and Assignee request the Trust's consent to the Assignment, NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows: 1. Assignee is a Qualified Transferee, as the term is defined in Paragraph 16 of the Use Agreement. 2. Assignor hereby assigns all of its right title and interest under the Use Agreement to Assignee. 3. Assignee hereby assumes the rights and obligations of Assignor under the Use Agreement. 4. The Trust consents to the assignment of the Use Agreement to Assignee. 5. The Use Agreement is amended as follows: 5.1. References to the User shall refer to Assignee from and after the date hereof. 5.2. Section 3.b. is amended in its entirety to read as follows: "Provided that no Event of Default shall have occurred and be continuing, User shall have two (2) options (each, an "Extension Option") to extend FTLDOCS 5123638 3 DRAFT 12/12/05 6:13 PM the Term for two (2) additional five (5) year terms (each, an "Extension Term"), provided written notice of the exercise of each option is delivered to the Trust not less than 180 days prior to the end of the Initial Term or an Extension Term of this Agreement. In no event shall this Agreement expire later than June 25, 2012. 5.3. Section 3.c. is deleted. 5.4. Paragraph 23 is hereby amended in its entirety as follows: "23. Taxes. In the event that the activities of User under the Use Agreement result in taxes being assessed on the Property, User shall be responsible to pay such taxes to the extent of such use." 5.5. Paragraph 32 of the Use Agreement is hereby amended by adding at the end thereof the following: "In addition, User shall have the option to terminate the Use Agreement in the event that that the new Florida law authorizing parimutuel facilities to offer Las Vegas style slot machine gaming in Broward results in a decline of annualized passenger count in any quarter of less than 40,000, upon 60 days' prior written notice to the Trust. In the event that User gives such termination notice User shall pay the Trust a termination fee of $100,000. Any prepaid rent shall be applied to the rent due for the last two months. 6. The Guaranty, a copy of which is attached hereto, shall continue to secure user's performance under the Use Agreement and shall remain in effect at all times during the term of the Use Agreement. 7. From the date hereof, all references to the Use Agreement shall mean the Use Agreement as amended by this Assignment. 8. The Use Agreement is in all other respects ratified and confirmed. IN WITNESS WHEREOF. the parties hereto have executed this Assignment as of the l 6th day of December, 2005. ASSIGNOR: Concorde Cruises, Inc. By: Deanna Lien, Vice President FTLDOCS 5123638 3 DRAFT 12/12/05 6:23 PM 2 APPROVED AS TO FORM AND CORRECTNESS Jorge L. Fernandez City Attorney ASSIGNEE: Miami Star Casino, LLC d/b/a Horizon's Edge Casino Cruises By Horizon's Edge Casino Cruises, LLC, its Managing Member By: Thomas Groom, Manager TRUST: Bayfront Park Management Trust, Limited agency and instrumentality of the City of Miami By: Timothy F. Schmand, Executive Director FTLDOCS 5123638 3 DRAFT 12/12/05 6:13 PM 3 AMENDMENT, ASSIGNMENT AND ASSUMPTION OF VALET PARKING CONCESSION AGREEMENT This Amendment, Assignment and Assumption of Valet Parking Concession Agreement (the "Amendment") is entered into as of December 16, 2005 between the CITY OF MIAMI (the "City"), a municipal corporation of the State of Florida, BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the City of Miami (the "Trust"), BAYFRONT VALET, L.C., a Florida limited liability company (the "Assignor") and MIAMI STAR CASINO, LLC, a Florida limited liability company, d/b/a Horizon's Edge Casino Cruises ("Assignee") for the purpose of providing for the assignment by Assignor to Assignee of that certain Valet Parking Concession Agreement dated December 8, 1998 between the City, the Trust and the Assignor, as amended by the First Amendment to Valet Parking Concession Agreement dated June 27, 2002 (as amended, the "Valet Agreement"). RECITALS WHEREAS, the Valet Agreement was entered into in conjunction with a Use Agreement dated as of June 25, 1997 between the Trust and Concorde Cruises, Inc. as successor in interest to Bayfront Ventures, as amended (the "Use Agreement"), which has been assigned to the Assignee on even date herewith, and WHEREAS, Assignee requires the use of the Property that is the subject of the Valet Agreement in order to provide parking for the patrons of the gaming vessel to be operated by Assignee pursuant to the Use Agreement and during the term of the Use Agreement, and WHEREAS, the City and the Trust wish to provide for the right to relocate the parking area from time to time as needed in order to allow for renovation of the property known as the Rock Garden, NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows: 1. Assignor hereby assigns all of its right title and interest under the Valet Agreement to Assignee. 2. Assignee hereby assumes the obligations of Assignor under the Valet Agreement as of the date hereof. 3. The Trust hereby consents to the assignment of the Valet Agreement to Assignee. 4. The Valet Agreement is amended as follows: 4.1. The term of the Valet Agreement shall run commensurate with the term of the Use Agreement, which term is by this reference incorporated into this Agreement. FTLDOCS 5123640 2 DRAFT 12/12/05 6:13 PM 1 4.2. The Trust may relocate the parking area to a reasonably comparable site as needed in order to renovate the Rock Garden. 4.3. In the event that the activities of Operator under the Valet Agreement result in taxes being assessed on the Property. Operator shall be responsible to pay such taxes to the extent of such use. 5. From the date hereof, all references in the Valet Agreement to the Operator shall mean Assignee and all references to the Agreement shall mean the Valet Agreement as amended by this Amendment. 6. The Valet Agreement is in all other respects ratified and confirmed. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 16th day of December, 2005. APPROVED AS TO FORM AND CORRECTNESS Jorge L. Fernandez City Attorney ASSIGNOR: Bayfront Valet, L.L.0 By: Deanna Lien, Vice President ASSIGNEE: Miami Star Casino, LLC d/b/a Horizon's Edge Casino Cruises By Horizon's Edge Casino Cruises, LLC, its Managing Member By: Thomas Groom, Manager TRUST: Bayfront Park Management Trust, Limited agency and instrumentality of the City of Miami By: Timothy F. Schmand, Executive Director FTLDOCS 5123640 2 DRAFT 12/12/05 6:13 PM 7 AMENDMENT, ASSIGNMENT AND ASSUMPTION OF REVOCABLE LICENSE AGREEMENT This Amendment, Assignment and Assumption of Revocable License Agreement (the "Amendment") is entered into as of December 16, 2005 between the CITY OF MIAMI (the "City"), a municipal corporation of the State of Florida, BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the City of Miami (the "Trust"), CONCORDE CRUISES, INC., a South Dakota corporation ("Assignor") and MIAMI STAR CASINO, LLC, a Florida limited liability company, d/b/a Horizon's Edge Casino Cruises ("Assignee") for the purpose of providing for the assignment by Assignor to Assignee of that certain Revocable License Agreement dated August 3, 1998 between the City, the Trust and Concorde as successor in interest to Bayfront Ventures (the "Warehouse Agreement"). RECITALS WHEREAS, the Warehouse Agreement was entered into in conjunction with a Use Agreement between the Trust and the Assignor which has been assigned to the Assignee on even date herewith (the "Use Agreement"), and WHEREAS, Assignee requires the use of the 1,800 square foot area in the warehouse for the purpose of operating a gaming vessel pursuant to the Use Agreement and during the term of the Use Agreement, and WHEREAS, The parties have continued to perform their rights and obligations under the Warehouse Agreement through the date of this Agreement, thereby extending the term of the Warehouse Agreement, NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows: 1. Assignor hereby assigns all of its right title and interest under the Warehouse Agreement to Assignee. 2. Assignee hereby assumes the obligations of Assignor under the Warehouse Agreement as of the date hereof. 3. The Trust consents to the assignment of the Warehouse Agreement to Assignee. 4. The Warehouse Agreement is amended to provide that its term shall run year to year commensurate with the term of the Use Agreement, which term is by this reference incorporated into this Agreement. 5. In the event that the activities of Licensee under the Warehouse Agreement result in taxes being assessed on the Area, Licensee shall be responsible to pay such taxes to the extent of such use. FTLDOCS 5123639 2 DRAFT 12/12/05 6:13 PM 1 6. From the date hereof, all references in the Warehouse Agreement to the Licensee shall mean Assignee and all references to the Agreement shall mean the Warehouse Agreement as amended by this Amendment. The Warehouse Agreement is in all other respects ratified and confirmed. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 16th day of December, 2005. Attest: ASSIGNOR: Concorde Cruises, Inc. By: Deanna Lien, Vice President ASSIGNEE: Miami Star Casino, LLC d/b/a Horizon's Edge Casino Cruises By Horizon's Edge Casino Cruises, LLC, its Managing Member By: Thomas Groom, Manager LICENSOR: CITY OF MIAMI, a municipal corporation of the State of Florida City Clerk City Manager TRUST: Bayfront Park Management Trust, Limited agency and instrumentality of the City of Miami By: Timothy F. Schmand, Executive Director APPROVED AS TO FORM AND CORRECTNESS Jorge L. Fernandez City Attorney FTLDOCS 5123639 2 DRAFT 1 2, 12/05 6:13 PM