HomeMy WebLinkAboutR-2020-025 Forbearance Agreement with the Missouri Gaming Company RESOLUTION NO. R-2020-025
A RESOLUTION APPROVING A-FORBEARANCE AGREEMENT WITH THE MISSOURI
GAMING COMPANY LLC.
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE,
MISSOURI, AS FOLLOWS:
THAT the Board of Aldermen hereby approves the Forbearance Agreement, in
substantially the form attached hereto, by and between the City of Riverside and The Missouri
Gaming Company LLC. The Mayor is authorized to execute the Agreement on the City's behalf;
and
FURTHER THAT the Mayor, the City Administrator, and other appropriate City officials
are hereby authorized to take any and all actions as may be deemed necessary or convenient
to carry out and comply with the intent of this Resolution and to execute and deliver for and on
behalf of the City all certificates, instruments, agreements and other documents, as may be
necessary or convenient to perform all matters herein authorized.
PASSED AND ADOPTED by the Board of Aldermen of the City of Riverside, Missouri,
the 7 day of lq ARa` , 2020.
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Kathleen L. Rose, Mayor
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'�`RoijihJK ba d,'Cify Clerk
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement") is entered into by and between
The Missouri Gaming Company, LLC, a Missouri limited liability company (the "Lessee")'
and the City of Riverside, Missouri, ("Lessor"), with respect to the Lease and Development
Agreement dated June 7, 1993 (as amended through the date hereof,the"Lease")by and between
Lessee and Lessor.
RECITALS
WHEREAS, in December 2019, medical professionals detected a novel coronavirus, now
designated as "SARS-CoV-2," which causes a disease known as "coronavirus disease 2019"
abbreviated and commonly known as "COVID-19"; and
WHEREAS,on January 30,2020,the World Health Organization Director General declared
an outbreak of COVID-19 as a Public Health Emergency of International Concern, advising
countries to prepare for containment, detection, isolation and case management, contact tracing
and prevention of onward spread of the disease; and
WHEREAS, on March 11, 2020, the World Health Organization Director General
characterized COVID-19 as a pandemic; and
WHEREAS, on March 13, 2020, the President of the United States declared the COVID-19
outbreak a national emergency; and
WHEREAS, the Missouri Gaming Commission ordered all riverboat gaming casinos in the
State to temporarily suspend their casino operations and to close effective midnight March 17,
2020 through March 30th, 2020 due to concerns related to COVID-19; and
WHEREAS, on March 22, 2020, the Platte County Health Department issued an Order for
limitation of private and public gatherings of more than 10 individuals and restriction on certain
activities; and
WHEREAS, as a result of the current national economic situation, the uncertainty
surrounding the impact of COVID-19, and the orders issued by the Missouri Gaming Commission
and Platte County Health Department, Lessee requested of Lessor a 90 day rent payment deferral;
and
WHEREAS, subject to the terms and conditions set forth herein, Lessor is willing to forbear
for a period commencing on the Agreement Effective Date (as defined below), and ending on the
Forbearance Termination Date (as defined below), in the exercise of remedies with respect to any
Event of Default under the Lease arising solely out of the failure to pay Rent under the Lease,
while reserving to Lessor all rights and remedies with respect to any other default under the Lease.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as follows:
Lessee was originally a Missouri corporation(i.e.,The Missouri Gaming Company). On October 17,2013, Lessee
converted to a Missouri limited liability company (i.e., The Missouri Gaming Company, LLC) pursuant to Section
351.409,RSMo.
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SECTION 1. AGREEMENT
Subject to the terms of this Agreement, at the request of Lessee, Lessor hereby agrees to
forbear from exercising its rights and remedies under the Lease with respect to any Event of
Default under the Lease arising solely out of the failure to pay Rent under Section 4 of the Lease
(more particularly, the Sixth Amendment to Lease and Development Agreement dated December
27, 2001) (any such default, a "Specified Default"), as follows: Is' Quarter 2020 Rent in the
amount of$1,236,123.57. Such forbearance shall terminate on the "Forbearance Termination
Date", which shall be the earlier to occur of(i) June 15, 2020, or (ii) the occurrence of an Event
of Default under the Lease, other than a Specified Default (such period of forbearance, the
"Forbearance Period"). On and after the Forbearance Termination Date, Lessor shall be entitled
to exercise all rights and remedies with respect to the Specified Default as if such forbearance had
never been granted, and during the Forbearance Period, all Rent that is not paid will continue to
accrue, together with interest on any such overdue amounts.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Agreement shall become effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such conditions being referred to herein as the
"Agreement Effective Date"):
A. Execution. Lessor and Lessee shall each execute this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lessor to enter into this Agreement, Lessee represents and warrants to
Lessor that the following statements are true and correct in all material respects:
A. Justification for Request. Lessee's parent company operates 41 gaming facilities
in 19 jurisdictions and, as of March 25, 2020, all of them are closed. Lessee's request is directly
related the impact of COVID-19.
B. Corporate Power and Authority. Lessee has all requisite power and authority to
execute and deliver this Agreement and to carry out the transactions contemplated by,and perform
its obligations, hereunder.
C. Authorization of Agreements. The execution and delivery of this Agreement and
the performance of this Agreement have been duly authorized by all necessary action on the part
of Lessee.
D. No Conflict. The execution and delivery by Lessee of this Agreement and the
performance by Lessee of this Agreement do not and will not (i) violate or require a consent,
approval or filing under (A) any provision of any law, statute, rule or regulation, or of the
certificate or articles of incorporation/organization or partnership agreement, other constitutive
documents or by-laws of Lessee or(B) any applicable order of any court or any rule, regulation or
order of any governmental authority, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any agreement of Lessee, (iii) result
in or require the creation or imposition of any lien upon any of the properties or assets of Lessee,
or(iv) be subject to any subsequent approval of stockholders or partners or any approval or consent
of any person under any agreement of Lessee.
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E. Binding Obligation. This Agreement has been duly executed and delivered by
Lessee and constitutes a legal, valid and binding obligation of Lessee, enforceable against such
Lessee in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency, or other similar laws affecting creditors' rights generally.
F. Absence of Default. No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Agreement that would constitute an
Event of Default other than the Specified Default.
SECTION 4. ADDITIONAL PROVISIONS
A. Effect on the Lease. Except for the forbearance by the Lessor pursuant to the terms
of this Agreement, the Lease shall remain in full force and effect, and the execution, delivery and
performance of this Agreement shall not constitute an amendment, modification or waiver of any
provision of, or operate as an amendment, modification or waiver of any right, power or remedy
of Lessor under the Lease.
B. Headings. Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
C. Choice of Law; Venue. This Agreement and its performance shall be deemed to
have been fully executed, made by the parties in, and governed by and construed in accordance
with the laws of the State of Missouri applicable to contracts made and to be performed wholly
within such state,without regard to choice or conflict of laws provisions. The parties hereto agree
that any action at law, suit in equity, or other judicial proceeding arising out of this Agreement
shall be instituted only in the Circuit Court of Platte County, Missouri or in federal court of the
Western District of Missouri and waive any objection based upon venue or forum or otherwise.
D. Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are physically attached to the same
document.
E. Successors. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective permitted successors or permitted assigns.
F. No Third Party Beneficiaries. The parties do not intend to confer any benefit
under this Agreement on any other person or entity other than the parties hereto.
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