REDEVELOPMENT PROJECT LEASE BY AND BETWEEN THE CITY OF EAST CHICAGO, INDIANA AND SHOWBOAT MARINA PARTNERSHIP
Exhibit 10.3
REDEVELOPMENT PROJECT LEASE
BY AND BETWEEN
THE CITY OF EAST CHICAGO, INDIANA
AND SHOWBOAT MARINA PARTNERSHIP
BY AND BETWEEN
THE CITY OF EAST CHICAGO, INDIANA
AND SHOWBOAT MARINA PARTNERSHIP
REDEVELOPMENT PROJECT LEASE
THIS REDEVELOPMENT PROJECT LEASE (“Lease”), made and entered into as of the 19th day of
October, 1995, by and between the CITY OF EAST CHICAGO, DEPARTMENT OF REDEVELOPMENT, existing
pursuant to Indiana Code 36-7-14 (the “City”) and SHOWBOAT MARINA PARTNERSHIP, an Indiana general
partnership (“Tenant”),
WITNESSETH
THE FOLLOWING:
Recitals:
A. Pursuant to IC 36-7-14 and IC 36-7-25 (collectively, the “Act”), the Indiana General
Assembly has authorized redevelopment commission to approve plans for and determine that
geographic areas within redevelopment districts are redevelopment areas.
B. The East Chicago Redevelopment Commission (the “Commission”), pursuant to the
provisions of IC 36-7-14-41 and Resolution No. 1165 and 1166, established a redevelopment
area within the East Chicago Redevelopment District known as the Lake Front Development
Area (the “Area”) and adopted a redevelopment plan for the Area, which resolution and
Plan were amended by Resolution No. 1213 (collectively, the “Plan”).
C. The Commission has determined, in order to fulfill the purposes and objectives of the
Plan, to acquire certain real property within the Area, and has acquired certain real
property in accordance with the provisions of applicable law.
D. The Commission has, pursuant to and in accordance with the provisions of the Act,
offered the real property so acquired for lease and has received an offer from Tenant for
the lease of said real property which is in accordance with offering documents and meets
the requirements and fulfills the purposes and objectives of the Plan.
E. The
Commission has determined that the development of the Redevelopment Project (as
defined herein) as proposed in Tenant’s offer will be beneficial to the citizens are
taxpayers of East Chicago, Indiana, and that it is in the best interests of the citizens
and taxpayers of the East Chicago Redevelopment District for the City to enter into a
lease as set forth herein.
F. Pursuant to and in furtherance of the foregoing, the parties desire to enter into
this lease.
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Lease Agreement
NOW, THEREFORE,
in consideration of the foregoing premises, the mutual covenants of the parties
herein contained, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City hereby demises and lets to Tenant, and Tenant hereby
leases from the City, the Leased Premises, for the term and upon the covenants, terms and
conditions herein contained, and in connection therewith the parties now agree as follows:
ARTICLE
I.
Leased
Premises
Section 1.01. Description of the Leased Premises. The Leased Premises shall be and consist of
certain real property described in Exhibit “A” attached hereto and incorporated herein by this
reference and all rights, privileges, easements and other interests appurtenant to such Leased
Premises (collectively called the “Leased Premises”). Upon the completion of any survey
required or permitted hereunder, the legal description contained in
Exhibit “A” shall be
amended to reflect the legal description included in such survey to the extent such legal
description differs from the description in Exhibit “A” attached hereto. To the extent
required or permitted under this Lease, Tenant shall have the right to construct upon the
Leased Premises any and all buildings, structures and improvements and to make any alterations
thereof for the Redevelopment Project as described in Section 5.02.
Section 1.02.
Leasehold Title Insurance. Prior to the Possession Date, Tenant may obtain a
commitment issued by Chicago Title Insurance Company (the “Title Company”) for a leasehold
policy of title insurance, in which commitment said insurance company shall agree that, after
execution, delivery and recordation of a memorandum of this Lease and payment of the applicable
premium, it will insure, for to be determined by Tenant Dollars
($ ) Tenant’s leasehold
interest in the Leased Premises, subject only to current nondelinquent real estate taxes and
such other matters as Tenant shall agree to in writing and with such policy endorsements as
Tenant or any Provider may request. Tenant shall provide a copy of
the commitment to City. In
the event Tenant deems unacceptable any defect in title or other matter disclosed in such
commitment or any refusal of the Title Company to agree to issue any policy endorsement (“Title
Defect”), Tenant may either waive such Title Defect or may give written notice to City of such
Title Defect, and City shall have fifteen (15) days in which to cure such Title Defect. In the
event City fails to effect such a cure, Tenant may terminate this Lease by written notice to
City and obtain a refund of any sums paid as rental to the date of such notice, or Tenant may
waive such Title Defect.
Section 1.03. Boundary Survey.
Prior to the Possession Date, Tenant may, at Tenant’s expense,
obtain a boundary survey of the Leased Premises. Such survey shall be prepared to the standards
for an Indiana Land Title Association Minimum Standard Detail Survey and shall
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certify as to whether any portion of the Leased Premises is located
within a flood hazard zone. Tenant shall
provide a copy of the survey to City. Such survey shall contain such other certifications as
Tenant or any Provider may request. In the event the survey discloses any matter that is
unacceptable to Tenant, Tenant may either waive such matter or may
give written notice to City
of such unacceptable matter, and City shall have fifteen (15) days in which to cure such
matter. In the event City fails to effect such a cure, Tenant may terminate this Lease by
written notice to City and obtain a refund of any sums paid as rental to the date of such
notice, or Tenant may waive such matter.
Section 1.04. Environmental Assessment. Prior to the Possession Date, Tenant may conduct such
environmental assessments as it deems prudent in its sole discretion. Tenant shall provide
copies to City of any such environmental assessments performed. If such assessments reveal
environmental conditions that are not acceptable to Tenant, Tenant may terminate this Lease by
giving notice thereof in writing to the City, if, within fifteen (15) days after notice of such
condition, the City refuses to undertake a cure of such environmental condition. If the City
undertakes a cure of any such environmental condition, it shall complete such cure diligently
to the satisfaction of Tenant and any Provider.
Section 1.05.
Covenants of the City. The City’s demise to Tenant hereunder is expressly made
subject to the following:
| (a) | The lien of real estate taxes, if any, and all general and special governmental assessments, dues, charges and impositions not delinquent; | ||
| (b) | All easements, restrictions, agreements, covenants and other matters of record to which Tenant consents in writing; | ||
| (c) | The rights of the public to reasonable access to the marina basin adjacent to the real estate conveyed to the City by the East Chicago Park and Recreation Board pursuant to a Quitclaim Deed dated May 17, 1994 and the beach area located on the eastern portion of the such real estate, which areas shall be administered by the East Chicago Park and Recreation Department, which rights shall be incorporated in an appropriate easement(s) agreement among the City, the Tenant and the East Chicago Park and Recreation Board. |
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ARTICLE II.
Term
Section 2.01. Term and Holdover. The term of this Lease shall be deemed to have commenced on the
date that Tenant receives from the Indiana Gaming Commission a
certificate of suitability as
authorized under regulations of said Commission (the “Commencement Date”). The parties shall execute
a separate writing acknowledging the Commencement Date), which shall be recorded in the Office of the Recorder
of Lake County, Indiana. This Lease shall continue to and including the thirtieth anniversary of
the Commencement Date or the last day of any renewal term under Section 2.04 hereof, (the
“Termination Date”), unless sooner terminated under the provisions of this Lease (the “Term”). In
the event that Tenant remains in possession of the Leased Premises with the consent of the City
after the expiration of this Lease, without any extension or renewal of the Term, Tenant shall be
deemed to be a tenant from month-to-month, at a monthly rental of one-twelfth (1/12) the then
current rental of the Leased Premises and subject to all other covenants, terms and conditions of
this Lease, insofar as applicable to a month-to-month, tenancy. Such month-to-month tenancy
shall be terminable by either party upon thirty (30) days written notice to the other, delivered as
of and prior to the end of any calendar month. The exercise by Tenant of its right under Section
17.02 of this Lease to enter the Leased Premises during the sixty (60) day period following the
expiration of this Lease for the purpose of removing of trade fixtures, business equipment and
personal property from the Leased Premises to the extent permitted by Section 17.02 of this Lease
shall not be deemed to constitute a holding over or create a tenancy from month-to month hereunder.
Tenant shall, however, during such period continue to be bound by the duties, covenants and
agreements of Tenant under this Lease, including, without limitation, the covenants and agreements
relating to insurance and indemnification, excepting only the obligation to pay rent.
Section 2.02. Early Termination by Tenant. At any time subsequent to the eighth anniversary of
the Commencement Date, in the event that Tenant, in its sole discretion, shall determine that it is
no longer economically feasible to operate the Redevelopment Project, Tenant may terminate this
lease upon ninety (90) days written notice to the City. Upon
termination, the Tenant shall pay, in a lump sum, an amount equal to
one year’s annual rental at the time of termination. The duties and obligation
of the parties in the event of an early termination under this Section shall be the same as the
duties and obligations of the parties set forth in this Lease upon expiration of this Lease at the
end of its full term.
Section 2.03. License Contingency. The City acknowledges that the ability of Tenant to perform
its obligations under this Lease is contingent upon Tenant acquiring from the State of Indiana a
license to operate a riverboat gaming casino. In the event that (a) a person other than Tenant is
issued such license or (b) Tenant has not received a certificate of suitability under the
regulations of the Indiana Gaming Commission within three (3) years of the date of the Commencement
Date, does not have its license renewed, or has its license revoked or suspended, either party may
terminate this Lease by written notice to the other party. In the event the Lease is not so
terminated, the obligations of the parties shall continue hereunder,
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except that any
obligations of Tenant hereunder relating to the operation of a riverboat gaming casino shall be
suspended until such time, if any, that Tenant obtains a certificate of suitability, a renewal of
its license, or the issuance of a license that has been suspended or revoked. In the event the
Lease is terminated and all or a portion of the Leased Premises is subsequently leased
to a person other than Tenant
who has obtained a license to operate a riverboat gaming casino, Tenant shall be reimbursed by
such new tenant for all its costs and expenses incurred in connection with the work described in
Section 5.01 hereof, which costs shall be documented to the City’s reasonable satisfaction, and
the City shall also use its good faith efforts to cause any new tenant of the Leased Premises to
reimburse Tenant for all leasehold expenditures made by Tenant to the date of termination,
including, but not limited to, rental payments made and the costs and expenses of all leasehold
improvements, fixtures and equipment. Tenant reserves the right upon termination of the Lease for
the reasons stated in the Section 2.03 to demolish or remove all leasehold improvements, fixtures
and equipment constructed of installed by it, in which event the City shall have no obligation
under the preceding sentence to seek reimbursement of the costs of leasehold improvements to the
extent such have been demolished or removed.
Section 2.04. Renewal Terms. The term of this Lease may be extended for two (2) additional
thirty (30) year terms at the election of the Tenant in writing, which election may be made at any
time prior to the expiration of the then existing term.
Section 2.05. Early Possession. Tenant shall be entitled to exclusive possession of the Leased
Premises from and after the Possession Date, and the parties shall be bound by the terms and
provisions of this Lease from and after the Possession Date, provided that Tenant shall not be
obligated to pay any annual rental payment (except for the 1/2 payment payable upon execution hereof
as provided in Section 4.01) until the Commencement Date.
ARTICLE III.
Definitions
The
following terms, whenever appearing in this Lease with initial capital letters, shall have
the respective meanings set forth or referred to in this Article III:
| (a) | “Condemnation Proceeds” shall mean the total aggregate award resulting from any condemnation proceedings with respect to the Leased Premises and Redevelopment Project, exclusive of any award to Tenant or any of its sublessees or licensees as an award for loss of business or moving expenses. | ||
| (b) | “Construction Period” shall mean the period during which the Redevelopment Projects is initially constructed. | ||
| (c) | “Constructive Total Taking” shall mean a taking in a condemnation proceeding of such scope that the remaining portion of the Leased Premises and |
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| Redevelopment project would be insufficient to permit the economically feasible operation of the Leased Premises and Redevelopment Project. | |||
| (d) | “Environmental Laws” shall mean federal, state and local laws and implementing regulations, effective on or after the Commencement Date, relating to pollution or protection of the environment, including laws or regulations relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes into the environment (including without limitation ambient air, surface water, ground water or land), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminates, chemical or industrial, toxic or hazardous substances or wastes. Such laws shall include, but not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq (“CERCLA”), the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 3251, et seq. the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 466 et seq. (“Clean Water Act”), and Indiana Code, Title 13 - Environment, as amended. | ||
| (e) | “Event of Default” shall have the meaning set forth in Section 11.01 herein. | ||
| (f) | “Possession Date” shall mean the date upon which the City receives written notice from Tenant of Tenant’s election to take possession of the Leased Premises. | ||
| (g) | “Redevelopment Project” shall have the meaning set forth in Section 5.02 herein. | ||
| (h) | “Provider” shall mean an entity empowered to make loans, enter into other financing arrangements, own, lease, purchase or sell property or by any other means provide for buildings and other improvements and equipment on real estate, and the acquisition and disposal of interests in such buildings, improvements, equipment and real estate which furnishes to Tenant (its successors and assigns) the primary source of funds, buildings, improvements, equipment or other things secured by or in connection with any mortgage, assignment, lease, sublease, purchase subject to seller’s right of repurchase or other encumbrance, financing, sale or lease document or agreement whatsoever, relating to the financing, refinancing, construction, sale, lease or development of the Redevelopment Project. | ||
| (i) | “Termination Date” shall have the meaning set forth in Article II herein. | ||
| (j) | “Trustee” shall have the meaning set forth in Article XXII herein. | ||
| (k) | “Unavoidable Delays” shall mean any delay in the achievement of any deadline required under this Lease by reason of fire, casualty, strikes, lockout, labor |
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| troubles, failure of power, governmental authority, riots, insurrection, war or other reason of like nature, or failure of timely performance by the other party which delay, hindrance or prevention of performance is not within the reasonable control of the party obligated to perform and is not avoidable by reasonable diligence. |
ARTICLE IV.
Lease
Consideration
Section 4.01. Rent.
This consideration for this Lease shall be (a) an annual rental of Four
Hundred Thousand Dollars ($400,000.00), subject to the adjustments as provided below,
through the Term and any extension of the Term pursuant to Section 2.04 and (b) Tenant’s
undertakings for the development of the Redevelopment project on the Leased Premises as
described in Section 5.02. The annual rental shall be payable to the
City on the Commencement
Date and on each anniversary of the Commencement Date by check subject to collection at the
address of the City specified in Article XX hereinbelow, provided that the first annual
rental payment shall be paid one-half (1/2)upon execution of this
Lease and one-half (1/2) upon the Commencement Date.
Section 4.02. Adjustments to Annual Rent. The annual rental payable hereunder shall be adjusted
beginning on the third anniversary date of the Commencement Date and on the same date of every
third year thereafter, each such date being
called a Rental Adjustment Date. Such adjustments shall be based upon
increases in the Consumer
price Index (hereinafter the “Index”), all items, published by the Bureau of Labor Statistics,
United States Department of Labor. In computing the rental adjustment for each Rental
Adjustment Date (the “Current Rental Adjustment Date”) the Index last published preceding the
last preceding Rental Adjustment Date (the “Prior Rental Adjustment Date”) or preceding the
Commencement Date in event of the first adjustment), shall be the base Index for purposes of
calculating the annual rental for the three (3) year period commencing on the Current Rental
Adjustment Date. Any increase in the Index from the base Index to the Index last published
preceding the Current Rental Adjustment Date shall be computed as a percentage and the annual
rental to be paid by Tenant during the three (3) year period commencing on the Current Rental
Adjustment Date shall be the annual rental payable by Tenant for the period immediately prior
to the Current Rental Adjustment Date multiplied by the sum of One Hundred Percent (100%) plus
such change in the Index; but shall in no event be less than the annual rental payable by
Tenant for the period immediately prior to the Current Rental Adjustment Date. Notwithstanding
the foregoing the rental adjustment made for any Rental Adjustment Date shall not exceed. One
Hundred Five Percent (105%) of the annual rental determined on the Prior Rental Adjustment Date
(or the Commencement Date in the event of the first adjustment).
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ARTICLE V.
Construction
of Redevelopment Project
Section 5.01. The City’s Assistance.
| (a) | The City shall in good faith take all procedural steps that are reasonably and lawfully required and necessary to enable the Tenant, its sublessees and/or a not-for-profit building corporation to finance and construct a breakwall, public parking facility, roadwork for ingress and egress and utilities (sewer, water, gas, electric, etc.) to the Redevelopment Project. The parties acknowledge that such activity is to be financed through a lease financing under applicable Indiana statutes. |
Section 5.02. Redevelopment Project. The “Redevelopment Project” shall mean:
| (a) | The development and construction of a first class riverboat casino to be developed and operated by Tenant, as licensed to do so under the provisions of IC 4-33, which may include land-based facilities, including, but not limited to restaurants, entertainment facilities and parking areas, and other facilities or uses necessary and desirable for the operation of the riverboat casino, all in accordance with the provisions of the Lakefront Development Area Redevelopment Plan, as amended, and substantially in accordance with Tenant’s bid submitted to City on August 9, 1994. | ||
| (b) | Any and all buildings, structures, improvements, fixtures, equipment and appurtenances necessary or incidental to the construction, maintenance and operation of the project described in paragraph (a) and any alterations thereof. |
Section 5.03. Completion of the Redevelopment Project. Tenant shall within one hundred eighty
(180) days after receipt of a certificate of suitability from the
Indiana Gaming Commission cause the commencement of construction of the Redevelopment Project
and diligently pursue such construction to completion in a good and workmanlike manner. Tenant
shall use its best efforts to cause the construction of the Redevelopment Project to be
completed to such an extent that subject to Unavoidable Delays (which shall not include failure
to obtain financing), the Redevelopment Project is substantially ready for operation no later
than eighteen (18) months following the receipt of such certification of suitability (the
“Substantial Completion Date”). In the event the Redevelopment Project is not substantially
ready for operation by the Substantial Completion Date, Tenant agrees to pay to City, as
liquidated damages, the sum of $250,000.00 per month until the Redevelopment Project is
substantially ready for operation, it being agreed between the parties that actual damages to
the City for such failure cannot be determined; provided, however, that Tenant shall not be
liable for the payment of such liquidated damages if it has, prior to the Substantial
Completion Date, opened a temporary riverboat gaming casino for operation.
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Section 5.04. Compliance with Laws. Insurance Policies. Tenant shall cause the construction of
the Redevelopment Project, and the same to be constructed and completed, in compliance with all
requirements of law (including Environmental laws and building codes) and all ordinances,
regulations, rules or orders of any public agency or authority relating thereto. Tenant shall
provide evidence of insurance coverages, in the form of certificates of new policies or
endorsements to existing policies, showing Tenant to be insured during the period of
construction, under policies providing the coverages required under Article XII hereinbelow,
and naming the City as an additional insured, as appropriate. Tenant shall comply with all
requirements and conditions of such policies to ensure continuation of the same throughout the
course of the construction of the Redevelopment Project.
ARTICLE VI.
Mortgages: Financing Documents and Liens
Section 6.01. Fee Mortgages or Liens. The City hereby
covenants and agrees that during the
term of this Lease (and any extension or renewal hereof), the City shall not mortgage, pledge
or otherwise create, security interests or other liens or encumbrances upon or affecting the
City’s fee estate in the Leased Premises or its reversionary interest in the Redevelopment
Project, or any part thereof which is superior to the interest of Tenant or the Provider or
encumbers the interests of Tenant, except with the prior written consent of Tenant and the
Provider except for such liens as may be created by stature or law; provided that such liens or
encumbrances are in all events subordinate to the interests of Tenant hereunder and the
interests of any tenant under any lease entered into pursuant to 6.03(f) herein.
Section 6.02. Leasehold and Project Financing Documents. Tenant and every successor and
assignee of Tenant shall have the right, at any time and from time to time, without the City’s
consent, to mortgage, assign, lease, sublease, sell with right to lease back or repurchase or
otherwise pledge or hypothecate its entire interest under this Lease or the entirety of the
Leased Premises and the Redevelopment Project, in each case as collateral security for or in
connection with any loan or other furnishing of funds, building
construction, futures or
equipment, from the Provider, to finance or refinance its interests
in the Leased Premises and
the Redevelopment Project or to obtain fixtures, equipment or
construction in connection with the Redevelopment Project provided, that the primary security
for such financing or refinancing or such construction or provision of fixtures or equipment
shall consist of Tenant’s interests in the Leased Premises and Redevelopment Project and the
income therefrom together with letters of credit, cash collateral accounts, guarantees and
similar credit-enhancement documents.
Section 6.03. Notices and Rights Upon Default. Tenant shall provide the City with conformed
copies of any and all encumbrances or financing documents given upon its interest in the Leased
premises and the Redevelopment Project, and shall give the City written notice of the name and
address of the Provider involved in any such transactions. If the foregoing information has
been provided to the City, the City agrees that so long as any such encumbrance
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or financing document shall remain in satisfied of record or until written notice of satisfaction
is given to the City by such Provider, the following provisions shall apply:
| (a) | Contemporaneously with any notice by the City to Tenant, the City shall serve upon such Provider a copy of each notice given to Tenant under this Lease. No such notice shall be effective as against such Provider unless and until a copy thereof is served upon such Provider. | ||
| (b) | In the case of any Monetary Event of Default (as such term is defined in Article XI of this Lease), the City shall not terminate this Lease until thirty (30) days after the later of (a) expiration of Tenant’s applicable cure period, or (b) receipt by such Provider of its copy of any such notice to remedy or cause to be remedied the Monetary Event of Default which is the basis of the notice; and further provided, that said thirty-day period shall be extended by a time commensurate with any period during which the said Provider cannot take action against Tenant or the Leased Premises on account of the stay under § 362 of the Bankruptcy Code or comparable provision under any future laws relating to the protection of debtors. The City shall accept performance by such Provider as performance by Tenant. If Tenant has had its license revoked or denied, the City may terminate this Lease under Section 2.03 without regard to this paragraph (b). | ||
| (c) | In the case of any Non-Monetary Event of Default or Bankruptcy Event of Default (as such terms are defined in Article XI of this Lease), the City shall not terminate this Lease without first giving to the Provider a reasonable time within which to cure such default, if possible, or to institute and complete foreclosure or other appropriate legal or equitable proceedings, obtain possession of the Leased Premises (including possession by a receiver), or otherwise acquire Tenant’s estate under this Lease. In the case of a Bankruptcy Event of Default, such default shall be deemed to be cured upon the Provider completing such proceedings or otherwise obtaining Tenant’s estate under this Lease. In the case of any Non-Monetary Event of Default, the Provider shall have forty-five (45) days from the date on which it obtains possession and control of the Leased Premises to cure the Non-Monetary Event of Default, provided, that, if the Non-Monetary Event of Default is susceptible of being cured only by any such Provider’s acquisition of title to Tenant’s estate under this Lease, such Provider shall have forty-five (45) days from the date on which such title is acquired by any of them to cure such Event of Default. In the event that it is not possible to effect such cure within said forty-five (45) day period shall be extended as necessary to effect such cure so long as any such Provider gives the City notice of intention to cure with a written proposal outlining the action the Provider intends to take and a schedule (timetable) therefor (the “Cure Proposal”) and commences efforts to cure within said period and thereafter continuously and diligently pursues the same to completion in accordance with the Cure Proposal. |
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| The provisions of this paragraph (c) of this Section 6.03 are conditioned on such Provider promptly commencing and diligently pursuing to completion appropriate legal or equitable proceedings against the Leased Premises or otherwise attempting with reasonable diligence to obtain possession of the Leased Premises and/or Tenant’s estate under this Lease. The right of the Provider under this paragraph (c) shall be exercisable concurrently, not sequentially. For purposes of this paragraph (c), possession of the Leased Premises by a receiver or trustee in bankruptcy shall not be deemed possession by the Provider. | |||
| (d) | Such provider shall not be required to continue possession or continue foreclosure proceedings under this Section 6.03 if the particular Event of Default has been cured by Tenant. | ||
| (e) | No amendment, modification, surrender or cancellation of this Lease (other than a termination by the City in compliance with the conditions of this Article VI or except as may be permitted pursuant to Section 2.02 or 2.03 hereof) shall be effective without written approval of the Provider of which the City has been given notice as provided above; and so long as such Provider shall have an interest of record in the Leased Premises and/or Redevelopment Project, no unification of the respective interests of the City and Tenant therein in any one person or entity (other than a termination of this Lease by the City in compliance with the conditions of this Article VI or except as may be permitted pursuant to Section 2.02 or 2.03 hereof) shall be deemed to create a merger of such interests. The City and Tenant shall not enter into any agreement modifying, canceling or surrendering this Lease without the prior written consent of such Provider. | ||
| (f) | In the event of the termination of this Lease for any reason prior to the expiration of the Term, whether by summary proceedings to dispossess service of notice to terminate or otherwise, the City shall serve upon the Provider of which the City has been given notice as provided above a written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination and of all other defaults, if any, under this Lease then known to the City. To the extent then permitted by law, such Provider shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions: |
| (i) | Upon the written request of such Provider, within thirty (30) days after service of such notice that the Lease has been terminated, the City shall enter into a new lease pursuant to the next paragraph for the Leased Premises and Redevelopment Project with such Provider (or its designee). | ||
| (ii) | Such new lease shall be entered into at the cost of the tenant thereunder, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the Term and at the rent and upon all the agreements, |
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| terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease. Upon the execution of such new lease, the tenant named therein shall pay any and all sums which at the time of the execution thereof shall be due under this Lease but for such termination: |
| (g) | Any notice or other communication which the City shall desire or is required to give or to serve upon the Provider of which the City has been given notice under this Lease shall be in writing and shall be served by Registered or Certified Mail, return receipt requested, addressed to such Provider at its address as set forth in any encumbrance of financing document, or in the last assignment thereof delivered to the City pursuant to this Article VI, or at such other address as shall be designated by such Provider by notice in writing given to the City. | ||
| (h) | Any notice or other communication which such Provider shall desire or is required to give to or serve upon the City shall be deemed to have been duly given or served if sent by Registered or Certified Mail to the City in accordance with Article XX of this Lease or at such other addresses as shall be designated by the City by notice in writing given to such Provider by registered mail. |
Section 6.04. Provider’s Liability. If the Provider shall acquire title to
Tenant’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of
foreclosure, or by any other legal or equitable proceedings, or by an assignment from a nominee or
wholly owned subsidiary corporation of such Provider, or under a new lease pursuant to this Article
VI, such Provider may assign such lease to a person holding a license to operate a riverboat gaming
casino and shall have no liability for the performance of observance of the covenants and
conditions in such lease contained on Tenant’s part to be performed and observed from and after the
date of such assignment. Any Provider acquiring title to Tenant’s interest in this Lease shall be
required within 12 months thereafter to either obtain a license to operate a riverboat gaming
casino or to assign the Lease to a person holding such a license, and, in the event such Provider
fails to so obtain a license or assign the Lease within such time period, this Lease shall
automatically terminate.
Section 6.05. No Obligation to Cure. Nothing contained in this Lease shall
require the Provider to cure or undertake to cure any default of Tenant, unless and until such
Provider elects to exercise any right under the foregoing Section 6.03 as to which such cure or
undertaking to cure is a condition.
Section 6.06. Notice to the City. Tenant shall provide the City written notice
of any default by Tenant pursuant to any encumbrance or other financing documents upon or against
Tenant’s interest in the Leased Premises and Redevelopment Project, and Tenant shall obtain the
agreement of the Provider that said Provider will provide the City with
notice of any default by Tenant of its agreements with the Provider. Tenant shall also attempt
in good faith to obtain
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the agreement of the Provider to accept any cure tendered by the City (without obligation of
the City to undertake any such cure) of any such default.
Section 6.07. Further Assurances. The City hereby covenants and agrees to
execute such additional documents and to take such additional actions as the Provider may
reasonably require to further assure, implement and give effect to the security of such Provider
under any encumbrance or financing document which such Provider and
Tenant may hereafter enter into in connection with the financing or refinancing of the costs of the Redevelopment Project,
subject, however, to the provisions of Section 6.02 of this Lease and provided that the form and
substance of such documents are reasonably satisfactory to the City or that such actions do not
adversely affect the City.
ARTICLE VII.
Discharge of Liens
Section 7.01. Covenant Against Liens. Tenant shall not create or permit to be
created or to remain, and shall promptly discharge, any mechanic’s, laborer’s or materialmen’s lien
or any conditional sale agreement, title retention agreement or mortgage, which might be or become
a lien, encumbrance or charge upon the Leased Premises or any part thereof having any priority or
preference over or ranking on a parity with the estate, rights and interests of the City in the
Leased Premises or any part thereof.
Section 7.02. Contesting of Liens. If any mechanic’s, laborer’s or
materialmen’s lien shall be filed at any time against the Leased Premises or any part thereof,
Tenant shall cause the same to be discharged of record within sixty (60) days after notice of the
filing thereof by payment, deposit, bond or order of a court of competent jurisdiction; provided,
that Tenant shall have the right to contest the validity of such lien in any manner permitted by
law, so long as Tenant shall provide to the City title insurance, bond or other assurance or
security in an amount equal to one hundred percent (100%) of the amount of the claim, if and to the
extent that the claimed lien has, or lawfully may, attach to or adversely affect the City’s
interest in the Leased Premises, and shall thereafter diligently
proceed to cause such lien to be removed or discharged. If Tenant
shall fail to discharge or seek to discharge any such lien
affecting the Leased Premises, then the City may, but shall not be obligated to, discharge the
same, either by paying the amount claimed to be due or by procuring the discharge of such lien by depositing in court a bond for the amount claimed, or by giving security in such other
manner as is, or may be permitted by law, and Tenant shall reimburse and indemnify the City in
respect thereto, together with all costs, including attorneys’ fees related thereto or incurred in
connection therewith.
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ARTICLE VIII.
Assignments and Subleases
Section 8.01. Assignment and Sublease. Tenant may assign its interest in this
Lease to a person who has obtained a license to operate a riverboat gaming casino, a not-for-profit
building corporation, a Provider or a Trustee and may sublease or permit to be Sub-subleased all or
any part of the Leased Premises all without the consent of the City, provided that any assignment
to a Provider or Trustee shall terminate and be of no effect, if within twelve (12) months of such
assignment, such Provider or Trustee has been unable to further assign the Lease to a person that
has obtained a license to operate a riverboat gaming casino or has failed to obtain such a license
on its own behalf, and such limitation shall be stated on any document assigning such Lease. A
trustee in bankruptcy shall be permitted to assign this Lease for a period of twelve (12) months
following its assumption of the Lease to a person that has obtained a license to operate a
riverboat gaming casino or to any other person approved by the City. Any assignment of Tenant’s
entire interest in the Lease shall to the extent required by law, be subject to the approval of the
Indiana Gaming Commission.
Section 8.02. Tenant’s Liability Upon Assignment. Notwithstanding the
assignment of the Lease by Tenant, Tenant shall remain liable for the performance of all of the
obligations of Tenant under the Lease, until such assignee has obtained a license to operate
riverboat gaming casino.
ARTICLE IX
Use Limitations
Section 9.01. Use by Tenant. The Leased Premises shall be used primarily for
the construction, development and operation of the Redevelopment Project as described in Section
5.02 above, and secondarily for incidental uses reasonably related thereto of the nature enumerated
in Section 5.02(b) of this Lease, or in the event the Provider has an interest herein under circumstance permitted by Section 6.02 of this Lease and obtains possession of the Leased Premises and the
Redevelopment Project, for the operation of a riverboat gaming casino and for related incidental
uses by such new lessee.
Section 9.02. Compliance with Laws, Insurance Policies etc. Through the Term,
Tenant, at its sole cost and expense, shall promptly comply with all present and future laws
(including Environmental Laws, building and zoning laws), ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, departments, commissions, boards and
officers, including, out not limited to the Indiana Gaming Commission, and all orders, rules and
regulations of the National Board of Fire Underwriters, the Indian Board of Fire Underwriters, or
any other body or bodies exercising similar functions, which may be applicable to the Leased
Premises, or to the use or manner of use of the Leased Premises, or to the owners, tenants or
occupants thereof; provided, that Tenant shall be entitled to contest in
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good faith by appropriate proceedings any such legal requirements unless and until such contest shall
subject the City to any penalty or sanction, and until such time as a final determination is made
with respect to such legal requirements or until the City is subjected to a penalty or sanction for
Tenant’s noncompliance, Tenant shall not be deemed to be in default under this Section 9.02. Tenant
shall indemnify and hold the City harmless against all penalties, sanctions, costs, expenses,
liabilities, claims, actions and causes of action, including attorneys’ fees caused by Tenant’s
contesting of any proceedings or charge under this Section 9.02 Tenant shall likewise observe and
comply with the requirements of all policies of insurance required to be supplied coverage, or
cancellation thereof.
Section 9.03 Covenant Against Waste. Tenant shall not do or suffer any waste
to the Leased Premises or Redevelopment Project or any part thereof or any property adjacent
thereto, or allow the Leased Premises or Redevelopment Project to be used in violation of a
certificate of occupancy, if any, covering or affecting the use of the Leased Premises or
Redevelopment Project or any part thereof, or in any manner which may, in law, constitute a
nuisance, public or private. Tenant shall not permit use of any portion of the Leased Premises by
the public or any third person. Tenant shall not allow the Leased Premises to be used so as to
violate the Environmental Laws, including the “release” or “threatened release” of any “hazardous
substance,” “pollutant” or “contaminant,” as those terms are defined in CERCLA, in, at or upon the
Leased Premises.
ARTICLE X.
Repairs and Maintenance
Throughout the Term, Tenant at its sole cost and expense, shall maintain the Leased Premises
and Redevelopment Project in good repair and order and in safe and clean condition and shall make,
from time to time, all necessary repairs, renewals and replacements thereof. In no event shall the
City be required to make any repairs, improvements, additions, replacements, reconstructions or
other changes to the Leased Premises or Redevelopment Project or perform any maintenance thereon
during the Term.
ARTICLE XI.
Default Provisions
Section 11.01. Events of Default. Any of the following shall constitute an
“Event of Default” hereunder:
| (a) | If Tenant shall fail or refuse to pay when due any rent or any other sum or charge payable under this Lease, and such default shall continue for a period of thirty (30) days after notice from the City to Tenant specifying the items in default (herein called a “Monetary Event of Default”): |
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| (b) | If Tenant shall fail or refuse to perform or comply with any of the agreements, terms, covenants or conditions provided in this Lease (other than those referred to in the foregoing paragraph (a) or the following paragraph (c) of this Section) for a period of thirty (30) days after notice from the City to Tenant specifying the items in default; provided, however, that in the event such failure by its nature or due to Unavoidable Delays cannot be cured within such thirty (30) day period, then such thirty (30) day period shall be extended until such failure is cured, so long as Tenant gives the City notice of intention to cure with a written proposal outlining the action Tenant intends to take and a schedule (timetable) therefor (“Tenant’s Cure Proposal”) and commences its efforts to cure within such period and thereafter continuously and diligently (subject to Unavoidable Delays) pursues the same to completion in accordance with Tenant’s Cure Proposal (herein collectively called a “Non-Monetary Event of Default”): or | ||
| (c) | If (i) Tenant shall be adjudicated to be bankrupt or insolvent, or (ii) Tenant shall make an assignment for the benefit of creditors or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present Bankruptcy Code or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency state law, or (iii) Tenant shall seek, consent to or acquiesce in the appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Leased Premises, or (iv) within sixty (60) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present Bankruptcy Code or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law, such proceeding shall not have been dismissed or such appointment shall not have been vacated or stayed (herein collectively called a “Bankruptcy Event of Default”): |
then and in any such event, Tenant’s rights under this Lease shall terminate (subject, however,
to the rights of the Provider to notice and cure provided for in Article VI of this Lease)
sixty (60) days after the election of the City, made in writing to Tenant no more than sixty
(60) days after the later of such event or the expiration of any applicable cure period, to
terminate this Lease, and upon such election and the expiration of such ten (10) day period the
rights of Tenant to the use and possession of the Leased Premises under this Lease, including
such rights under any extension privileges whether or not exercised, shall expire and terminate
(subject, however, to the rights of the Provider to notice and cure provided for in Article VI
of this Lease).
Section 11.02. Surrender. Upon any such termination of Tenant’s rights under
this Lease pursuant to Section 11.01, hereof, Tenant shall quit and peacefully surrender the
Leased Premises to the City in accordance with the provisions of Section 17.01 hereof.
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Section 11.03. No Waiver. No failure by either the City or Tenant to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy
consequent upon a breach thereof shall constitute a wavier of any such breach or of such agreement,
term, covenant or condition. No agreement, term, covenant or
condition hereof to be performed or
complied with by the City or Tenant, as the case may be shall be
altered or modified except by a written instrument excited by the
City and Tenant. No waiver of any breach shall affect or alter this Lease, but
each and every agreement, term, covenant and condition hereof shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
Section 11.04.
Cumulative Remedies. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every rights or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of
this exercise by the City or Tenant of any such rights or remedies shall not preclude the
simultaneous or later exercise by the party in question of any such
rights or remedies, except as
otherwise expressly provided in this Lease. The provisions of this Article XI are hereby expressly
made subject to the provisions of Article XX and the rights and
remedies of the Provider under
Article VI.
ARTICLE XII.
Insurance
Section 12.01.
Tenant’s Liability Insurance. From the Possession Date and throughout the Term,
Tenant shall maintain in force the following types and amounts of liability insurance, covering
Tenant and, during any period in which construction, renovation,
alteration or substantial repair
work is being performed by third parties on the Redevelopment Project, Tenant’s construction
contractors, subcontractors and agent, as appropriate; and at all times naming the City as an
additional insured
(a) Comprehensive General Liability Insurance (“Occurrence” Form):
| (i) | Basic coverage and limits: Bodily injury, including death resulting therefrom, and Property Damage to a Combined Single Limit of $1,000,000 per occurrence. A $1,000,000 annual aggregate limit applies to Premises-Operations Property Damage Liability and to the hazards of Products/Completed Operations and Contractual Liability. |
||
| (ii) | Extensions of coverage to include: Blanket contractual liability for written or oral contracts; Broad form property damage; Blanket explosion, collapse and underground coverage. |
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| (b) | Umbrella Excess Liability: |
| (i) | Limits: |
| (A) | Bodily Injury, Personal Injury and Property Damage to a limit of $5,000,000 per occurrence excess of the primary Comprehensive General Liability and Employer’s Liability, subject to a Project aggregate limit for all insured interests of $5,000,000 excess of the Primary annual aggregate limits. | ||
| (ii) | Coverage: Includes all underlying extensions of coverage. |
| (c) | Changes in Limits: Notwithstanding the foregoing, and so long as City is named as an additional insured on Tenant’s liability insurance, the policy limits of Tenant’s insurance for tort claims shall not be less than the maximum liability of the City for tort claims under the Indiana Tort Claims Law (IC 34-4-16.5), as the same may be amended from time to time. |
Section 12.02. Automobile Liability Insurance. Throughout the Term, Tenant shall maintain in
force, in its own name only and not in the name of the City or other third parties, automobile
liability insurance covering the use of all owned, non-owned and hired vehicles, with bodily
injury and/or property damage liability limits of $1,000,000
(combined single limit per
accident).
Section 12.03. Tenant’s Workers’ Compensation and Employer’s Liability Insurance. Throughout
the Term, Tenant shall maintain the following amounts of workers, compensation and employer’s
liability insurance, covering Tenant and, during any period in which construction, renovation,
alteration or repair works being performed by third parties on the Redevelopment Project,
Tenant’s construction contractors, subcontractors and agents, as appropriate, and at all times
naming the City as an additional insured.
| (a) | Coverage A- Statutory Benefits: Liability imposed by the Workers, Compensation and/or Occupational Disease statute of the State of Indiana and any other state or governmental authority if related to the work performed on the Redevelopment Project. |
||
| (b) | Coverage B- Employer’s Liability Limits of $1,000,000 Bodily Injury by accident $1,000,000 Bodily Injury by disease, and $1,000,000 Policy Limit by disease. |
||
| (c) | Extensions of Coverage to include: Broad Form All States Endorsement |
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Sixty
(60) days notice of cancellation.
Section 12.04. Tenant’s Casualty-Loss Insurance. During the period of original construction of the
Redevelopment Project, and during any period in which construction, renovation, alteration or
repair work is being performed by third parties on the Redevelopment Project, Tenant shall maintain
in force builder’s “all risk” property damage coverage
to protect Tenant, its construction
contractors, subcontractors and agents, as appropriate, and naming
the City as an additional
insured.
At all times during the Term, Tenant shall maintain in force, through such builder’s all-risk
coverage or through separate casualty-loss policies, insurance covering the Leased Premises and the
Redevelopment Project, including all equipment in or apartment to the
Leased Premises or Redevelopment Project essential to the operation and maintenance of the
buildings (as distinguished from equipment for operation of the business conducted upon the Leased
Premises) and all alterations, changes or additions thereto, naming the City, the Provider and
Tenant, as their respective interests may appear, as insureds and insuring the Leased Premises and
the Redevelopment Project against loss or damage by fire or other casualties covered by customary
extended coverage endorsements, in such amounts as Tenant determines.
Section 12.05.
Proof of Insurance. All insurance provided for in this Article XII shall be effected
under valid and enforceable policies, issued by insurers of recognized responsibility authorized to
do business in Indiana Upon the execution of this Lease, and thereafter not less than fifteen
(15) days prior to the expiration dates of any expiring policies theretofore furnished pursuant to
this Article XII, originals of the policies (or, in the case of general public liability insurance,
certificate of the insurers), shall be delivered by Tenant to the City bearing notations
evidencing the payment of premises or accompanied by other evidence
satisfactory to the City of
such payment; except, that whenever the Leased Premises shall be subject to any mortgage may or
other form of financing instrument to secure any debt of Tenant, such
policies of insurance may be lodged with the Provider until the
mortgage debt shall be paid, and certificates of such
policies shall meanwhile be delivered to the City.
Section 12.06. Notice of Cancellation. The insurance required by this Article XII shall contain a
provision (to the extent that such provision is commercially available) that coverages afforded
under the policies will not be canceled, not renewed or materially changed until sixty (60) days
prior written notice has been given to both the City and Tenant and any other persons named as
insured thereunder.
Section 12.07. Adjustment in Insurance. Tenant shall provide such insurance, with such coverages
and in such amounts, as may be agreed upon from time to time between Tenant and the Provider.
Section 12.08. Waiver of Subrogation. The City and Tenant waive all rights against each other and
against these for whom the other is legally liable for (i) all losses or damages covered by
insurance provided for under this Article XII to the extent the upper limits of such
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insurance are adequate to cover such damages, it being the intent of this clause to allocate all
risk of such loss to such insurance and (ii) for all losses and damages which are not covered by
insurance but which could have been insured against by the insured. If the policies of insurance
provided under this Article XII require an endorsement to provide for continued coverage where
there is waiver of subrogation, Tenant will cause such policies to be
so endorsed.
Section 12.09. Application of Proceeds for Redevelopment Project. The proceeds of any
and all policies of insurance upon the Redevelopment Project maintained pursuant to Section 12.04
of this Article XII shall be used as a trust fund toward the repair, reconstruction, replacement
or rebuilding of the Redevelopment Project. Accordingly, all such policies of insurance shall
provide that, as to any loss in excess of $500,000,00 , all proceeds payable at any time and from
time to time by any insurance company under such policies shall be paid to the Trustee for the
benefit of Tenant, the City, the Provider and any other person or entity having any interest under
any such policy and applied by such Trustee as provided in this Lease. Tenant shall pay the
reasonable charges of the Trustee for its services hereunder. The City, Tenant, the Provider and
any other person or entity having an interest under any such insurance policy shall cooperate or
with and aid the Trustee in collecting any and all insurance money and will execute and deliver as
requested by the Trustee any and all proofs, receipts, releases and other instruments whatsoever
which may be necessary or proper for such purpose. In the event that any person having an interest
under any such insurance policy shall fail or neglect to cooperate or to execute, acknowledge and
deliver any such instrument, the Trustee may, as the agent or attorney-in-fact of any such person,
execute and deliver any proofs of loss or any other instruments as may seem desirable to the
Trustee for the collection of such insurance moneys, and all such person or entities having
obtained an interest in any such insurance policy shall be deemed to have irrevocably nominated
constituted and appointed the Trustee its proper and legal attorney-in-fact for such purpose. As to
all other policies, the proceeds shall be paid to the insured party or parties as their interests
shall appear and in proportion to their respective insured losses.
Section 12.10. Special Provisions. If reasonably obtainable, all such policies of
insurance maintained pursuant to Section 12.01 and 12.03 hereinabove shall provide that the
proceeds thereof shall be payable without regard to any fault or negligence of the City, Tenant,
any contractor or agent of Tenant or any other person or entity having an interest under any such
policy which may have caused or contributed to such loss and without my rights of the insurance
company of sot-off, counterclaim or deduction against the City or Tenant.
Section 12.11 General Provisions. In the event Tenant shall fail or refuse to obtain
any insurance required by this Article XII, the City may obtain such insurance. The costs of such
insurance shall constitute additional rent payable by Tenant upon demand by the City.
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ARTICLE XIII.
Indemnification
Section 13.01. Indemnification by Tenant. Subject to the provisions of Section 12.08
and regardless of whenever separate, several, joint or concurrent liability may be imposed upon
the City, Tenant shall, but only to the extent permitted by law, at its sole cost and expense,
indemnify and save harmless the City and any member, officer, director agent, partner, trustee or employee
thereof against and from any and all claims, liability and damages arising from or in connection
with (a) Tenant’s possession, use or control of the Leased Premises or the Redevelopment Project,
(b) any occurrence or circumstance on or related to the Leased Premises or Redevelopment Project
(including the loss or damage to any property, including the Leased Premises, the injury to or
death of any person, or the contamination of or adverse effects on the environment, which result
from any pollutant or from any chemical, hazardous or toxic
substances or wastes remitted from or
discharged by the Redevelopment Project while occupied by Tenant), or (c) Tenant’s breach of any
covenant or obligation under this lease, other than claims, liability or damages arising form
failure of the City to perform or the negligence of the City in the performance of , any of its
obligations hereunder or arising out of any willful acts of the City. The indemnification provided
by this Section 13.01 shall include all costs, counsel fees, expenses and liabilities incurred in
connection with any such claim, action or proceeding brought thereon;
and. In case any action or
proceeding shall be brought against
the City by reason of any such claim, Tenant, upon written notice from the City, shall defend such
action or proceeding. The terms of this Section 13.01 shall survive any termination of this Lease.
Section 13.02. Indemnification by the City . Subject to the provision 12.08 and
regardless of whether separate, several, joint or concurrent liability may be imposed upon Tenant,
the City shall, but only to the extent permitted by law, at its sole cost and expense, indemnify and
save harmless Tenant and the Provider from and against any all claims, liability and damages
arising from the sole negligence of the City or arising out of any willful acts of the City. The
indemnification provided by this Section 13.02 shall include all costs, counsel fees, expenses and
liabilities incurred, in connection with any such claim, action or
proceeding brought thereon. In case any action or proceeding shall be brought against the city by reason of any such
claim, Tenant upon written notice from Tenant or such Provider shall
defend such action and proceeding. The terms of this Section 13.01
shall survive any termination of this Lease.
ARTICLE XIV.
Casualty Damage
Section 14.01. Tenant’s Obligation to Repair. In the event that, at any time during the
Term, the Redevelopment Project shall be destroyed or damaged in
whole or in part by fire or other
cause within the extended coverage of the casualty insurance policies or builder’s risk policies
required to be maintained by Tenant in accordance with Article XII of this Lease, then
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Tenant shall cause the same to be repaired, restored, or rebuilt within a period of time which,
under all prevailing circumstances, shall be reasonable. In the repair or restoration of the
Redevelopment Project under this Article XIV, Tenant will, as nearly as practicable, repair,
restore, replace or rebuild the Redevelopment Project so damaged or destroyed to the condition and
character of the Redevelopment Project existing immediately prior to such occurrence, subject to
applicable zoning and building laws then in existence. Tenant shall be entitled to apply all
insurance proceeds of policies maintained to pursuant Article XII of this Lease remaining after any required
payments to the Provider to such repair, restoration, replacement and rebuilding. Tenant shall
notify the City in writing of any payments (whether total or partial) made of insurance proceeds.
If the insurance proceeds recovered in respect of any such insured damage or distraction, less any
cost of recovery and any amounts required to be applied to repayment of the Provider, shall be insufficient to pay the entire cost of such repair, restoration, replacement or rebuilding, Tenant may
bear the cost of such deficiency or in lieu of undertaking such repair, restoration, replacement
or rebuilding, terminate this Lease upon written notice to the City. The time within which Tenant
must perform any obligations under this Section 14.01 shall include a reasonable time to obtain and
close the necessary equity or mortgage loan or other financing to cover any deficiency that Tenant
agrees to bear.
Section 14.02. Disbursement of Insurance proceeds in the Event of Repair by Tenant. The
Trustee shall permit any insurance proceeds paid to it to be applied in payment of the cost of such
repair, restoration, replacement and rebuilding of the Redevelopment Project by Tenant pursuant to
the foregoing Section 14.01 as the same progresses, payments to be made against applications for
payment properly certified by Tenant’s supervising, architect or other appropriate certifying
official. The Trustee shall contribute out of such insurance proceeds
with respect to each such certified application for payment an amount in proportion to such payment as the whole amount received by the Trustee shall bear to the total estimated cost of repairing or rebuilding the Redevelopment Project. If the insurance proceeds should exceed the cost of
repairing or rebuilding the Redevelopment Project, the Trustee shall pay the balance remaining after
payment of the cost of repairing or rebuilding the Redevelopment Project to Tenant. The Trustee may
deduct from any insurance proceeds paid to it the amount of its charges for acting as such trustee
and any reasonable expenses incurred by it in connection with such trust.
Section 14.03. Prompt Performance of Work by Tenant. All work of repairing, replacing,
restoring or rebuilding the Redevelopment Project by Tenant pursuant to the foregoing Section
14.01 shall be commenced within one hundred twenty (120) days after settlement shall have been made
with the insurance companies, the insurance money shall have been paid to the Trustee and all necessary permits for such work shall have been obtained. All such work shall be
governed by the provisions of Section 5.04 of this Lease and shall be completed within a reasonable
time, under all prevailing circumstances. In case any mortgage, financing lease or other financing
document on Tenant’s interest in the Leased Premises or
Redevelopment Project shall be in force at the time of any damage to or
destruction of any damage to or destruction of the Redevelopment
Project shall be in force at the time of any damage to or destruction
of the Redevelopment Project then, the Provider
which is a party thereto is authorized to repair, replace, restore or rebuild the Redevelopment
Project under the same terms and conditions as are applicable in the case of repair, restoration,
replacement or rebuilding by Tenant. The Provider so respiring,
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replacing
or rebuilding the Redevelopment Project shall, subject to compliance with all the
conditions contained in this Article XIV, be subrogated to the rights of Tenant to the insurance
proceeds payable as a result of the damage or destruction, and shall be entitled to have (and the
City and Tenant hereby authorize the Trustee to so pay) all said insurance proceeds point out by
the Trustee in the same manner in every respect as if the Provider were Tenant under this Lease.
ARTICLE
XV.
Condemnation
Section 15.01. Total Condemnation. If, at any time during the Term, there shall be a permanent
total taking or a permanent Constructive Total Taking of the Leased Premises or Redevelopment
Project in condemnation proceedings or by any right of eminent domain, Tenant may by written notice
to the City elect to end the Term on the date of such taking, and Tenant shall remove its personal
property from the Leased Premises without delay. The rent and all other items payable to Tenant
under this Lease shall be prorated and paid to the date of such taking.
Section 15.02. Proceeds of Total Condemnation. In the event of any such permanent total taking
or Constructive Total Taking of the Leased Premises and Redevelopment Project and the termination
of this Lease, the Condemnation Proceeds shall be allocated as follows:
a) To the City for its fee interest in the Leased Premises (including its
interest as landlord under this Lease, and reversionary interest in the Redevelopment
Project); and then,
b) To Tenant for its leasehold estate in the Leased Premises and its fee
interest in the Redevelopment Project (subject to the City’s reversionary interest
therein) immediately prior to such total taking or Constructive Total
Taking.
Nothing
herein contained shall impair the right to Tenant or any of its sublessees, licensees,
concessionaires or others to the full award, compensation or damages payable as an award for loss of
business or for moving expenses.
Section 15.03.
Partial Condemnation. In the event of a taking less than a Constructive Total
Taking, this Lease shall not terminate or be affected in any way, except as provided in the
following Sections 15.04, 15.05 and 15.06. In such case, the Condemnation Proceeds shall be
apportioned and paid, to the extent available in the following priority:
(a) The Condemnation Proceeds shall be payable in trust to Tenant for application by Tenant to
the cost of restoring and rebuilding the Redevelopment Project as required by the following Section
15.04; and
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(b) The Condemnation Proceeds, if any, remaining after restoration shall, subject to the
requirements of any financing documents and the rights of the Provider, be retained by
Tenant, except to the extent of an equitable portion of the Condemnation Proceeds allocable
by agreement of the City and tenant to the City on account of any taking of its reversionary fee title interest to any portion of the Leased Premises. If Tenant and the City cannot agree upon the amount of such payment, the amount of such
payment shall be determined by an independent appraiser selected by agreement of the City and Tenant.
Section 15.04. Restoration. In the event of a taking less than a Constructive Total
Taking, Tenant, at its sole cost and expense (but subject to reimbursement from the Condemnation
Proceeds) and regardless of whether the Condemnation Proceeds are sufficient for the purpose, shall
proceed with due diligence to restore and rebuild the remaining portion of the Redevelopment
Project, to the extent feasible to the condition and character in which the same was immediately prior to such taking. All such work in connection with the restoration and rebuilding of the
Redevelopment Project shall be governed by the provisions of Section 5.04 of this Lease.
Section 15.05. Rent Adjustment. In the event of a taking of the character referred to in
the foregoing Section 15.03, this Lease shall terminate as to the portion of the Leased Premises so
taken and the rent payable hereunder shall be proportionally adjusted from the date of the taking.
Such adjustment shall be based on the ratio between the fair market value of Tenant’s leasehold
estate in the Leased Premises at the date of taking to the fair market value of such leasehold
estate remaining immediately thereafter, valued for the use being made of the Leased Premises by
Tenant immediately prior to such partial taking.
Section 15.06. Temporary Condemnation. If, at any time during the Term, the whole or any
part of the Leased Premises or Redevelopment Project shall be taken in Condemnation Proceedings or by
any right of eminent domain for temporary use or occupancy, except to the extent that Tenant may be
prevented from so doing pursuant to the terms of the order of the condemning authority, or by the
practical effects of such temporary taking, Tenant perform and observe all of the terms,
covenants, conditions and obligations of this Lease on Tenant’s
part to be performed and observed as though such taking and not
occurred. In the event of any such taking of the character described in this section 15.06, Tenant shall be entitled to receive the entire amount of the Condemnation
Proceeds awards for such taking, whether paid by way of damages, rent, costs of moving or
restoration or otherwise, unless such period of temporary use or occupancy shall extend beyond the
Term, in which case the Condemnation Proceeds shall be apportioned between the City and Tenant as
of the date of termination of this Lease. Upon the expiration of any such period of temporary use
or occupancy, if it be during the Term, Tenant will, to its sole cost and expense, restore the
Leased Premises, as nearly as practicable, to the condition and
character in which the same were immediately prior to such taking.
Any portion of the condemnation Proceeds received by Tenant as
compensation for the cost of restoration of the Leased Premises shall, if such period of temporary
use or occupancy shall extend beyond the Term (and Tenant has not exercised its option to
purchase), be paid to the City on the date
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of termination of this Lease, and Tenant shall be thereby relieved of its obligation hereunder
to perform such restoration.
Section 15.07
.. Rights to Appear. The City, Tenant and the Provider shall have the
right to participate in any Condemnation Proceeding for the purpose of protecting their rights
hereunder, and in this connection, specifically and without limitation, to introduce evidence to
establish the value of or damage to the Leased Premises or Redevelopment Project.
Section 15.08
.. Rights of Provider. Notwithstanding anything to the contrary contained
in this Lease, the provisions of this Lease relating to the application of any proceeds arising
from the taking of any part or all of the Leased Premises or Redevelopment Project in Condemnation
Proceedings shall be subject to any rights reserved by the Provider having an interest herein under
circumstances permitted by Section 6.02 of this Lease, to apply to the indebtedness to such
Provider, all or may part of such proceeds.
Section 15.09
.. City’s Exercise of Eminent Domain. To the extent permitted by law, City
agrees not to use its powers of eminent domain in a manner that is inconsistent with the provisions
of this Lease or that materially interferes with the enjoyment of the benefits hereof to Tenant.
ARTICLE XVI.
Consents and Approvals
Section 16.01
.. Standard of Consent. Where any provision of this Lease requires the
consent, cooperation or approval of either party, each party agrees
that, except as otherwise expressly provided in this Lease (such as by use of words to the effect of “sole” and/or
“complete” discretion), it will not unreasonably withhold, condition or delay such consent,
cooperation or approval, and the reasonableness of each party’s determination shall be evaluated in
accordance with any particular standards governing such particular consent or approval as expressly
set forth in this Lease, or if no standards are expressly set forth, then in accordance with all
relevant facts and circumstances. Where any provision of this Lease requires one party to do
anything to the satisfaction of the other party agrees that it will not unreasonably refuse to
state its satisfaction with such action.
Section 16.02
.. waiver of Claims. Notwithstanding anything contained in this Lease, neither
party shall have any claim, and hereby waives the right to any claim, against the other party for
money damages or off-set by reason of any refusal, withholding or dealing by the other party of any
consent, cooperation, approval or statement of satisfaction, and in such event, the requesting
party’s only remedies therefore shall be and action for declamatory relief or specific performance
to enforce any such requirement; provided, that this waiver shall
not apply as to an refusal withholding or delay made in bad faith.
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ARTICLE XVII.
Surrender
Section 17.01. Surrender of Leased Premises. Except as herein otherwise expressly provided in
this Lease, Tenant shall surrender and deliver upon the Leased Premises to the City at the
expiration of other termination of this Lease or of Tenant’s right to possession hereunder, without
fraud or delay, in good order, condition and repair, except for reasonable wear and tear after the
last necessary repair, replacement or restoration made by Tenant and except for damage by reason of
my temporary condemnation to the extent Tenant is relieved of its obligation to restore the Leased
Premises under Section 15.06 of this Lease, free and clear of all liens and encumbrances except the
liens for taxes and assessments not then doe and payable, matters
reflection in Section 1.05 here in above and any matters created, caused or consented to by the City, and without any payment of
allowance whatever by the City on account of any improvements made by Tenant. The Redevelopment
Project shall become the property of the City upon such expiration or termination.
Section 17.02. Removal of Certain Property. All trade fixtures, business equipment and
personal property furnished by or at the expense of Tenant or any subtenant shall be removed by or
on behalf of Tenant within sixty (60) days following the expiration of other termination of this
Lease but only if and to the extent that the removal thereof will not cause physical injury or
damage to the Leased Premises of necessitate changes of repairs to the same.
Section 17.30. Property Not Removed. Any personal property of Tenant or any subtenant which
shall remain in or upon the Leased Premises for more than sixty (60) days after Tenant or any
subtenant has surrendered possession of the Leased Premises shall be deemed to have been abandoned
by Tenant or such subtenant, and at the option of the City, such property: (a) shall be retained
by the City as its property: (b) shall be disposed of by the City in such manner as the City shall
determine, without accountability to any person; or (c) shall be promptly removed by Tenant at
Tenant’s expense upon written request from the City. The City shall not be responsible for any loss
or damage occurring to any property owned by Tenant or any subtenant.
Section 17.04. City’s Right to Requirement of Improvements. Upon surrender of the Leased
Premises, the City may require Tenant, its sublessees or a not-for-profit building corporation to
remove any improvements constructed by Tenant, its sublessees or a not-for-profit building
corporation on the Leased Premises.
Section 17.05. Survival of Terms. The terms of this Article XVII shall survive any
termination of this Lease.
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ARTICLE XVIII.
Quiet Enjoyment
Section 18.01.
Tenant’s Right to Quiet Enjoyment. The City hereby warrants and represents that
Tenant, upon paying rent and other charges herein provided for, and upon observing keeping all
covenants, agreements and conditions of this Lease to be kept on its part, and also during the
applicable periods specified in Section 11.01 of this Lease for curing any alleged default
(subject, however, to the provisions of Section 6.03(b) and (c) of this Lease), shall quietly have
and enjoy the Leased Premises during the Term without hindrance or molestation by anyone claiming
by, through or under the City, subject, however, to the exceptions, reservations and conditions of
this Lease.
Section 18.02
.. The City’s Right of Entry. Tenant shall permit the City and its authorized
representatives, upon reasonably prior notice, to enter the Leased Premises for the purpose of (a)
inspecting the Leased Premises, or (b) making any repairs or performing any work in the Leased Premises or Redevelopment Project that may be necessary by reason of Tenant’s
failure to make any such repairs of performs any such work. The City, however, shall proceed with
such repairs no sooner than ten (10) days after receipt of written notice to Tenant, specifying the
needed repairs and only if Tenant has not begun such repairs within such 10 day period. Nothing
herein shall imply duty upon the part of the City to do any such work, and performance thereof by
the City shall not constitute a waiver of Tenant’s default in failing to perform the same. During
the progress of any work in the Leased Premises of Redevelopment Project performed by the City
pursuant to the provisions of this Article XVIII, the City may keep and store therein all necessary
materials, tools, supplies and equipment. The City shall not be
liable for inconvenience, annoyance, disturbance, loss of business or other damage to Tenant or any subtenant by reason of making such repairs or performing any such work, or on account of bringing materials, tools, supplies and equipment into the Leased Premises or Redevelopment Project during
the course thereof, and the obligations of Tenant under this Lease shall not be affected thereby.
The City shall have the right to enter the Leased Premises without notice in the case of any
emergency which required the exercise of the City’s governmental powers for the preservation or
protection of the public health of safety.
ARTICLE XIX.
Certificates
Each party shall, at the requesting part’s cost and expense, as reasonably requested by the
other party from time to time and within ten (10) days after request by the other party, certify by
written instrument, duly executed, acknowledged and delivered to the requesting party or any other
person, firm or corporation specified by the requesting party:
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(a) That this Lease is unmodified and in full force and effect, or, if there have been any
modifications, that the same is in full force and effect as modified and stating the
modifications;
(b) Whether or not there are, to the best of the certifying party’s knowledge and belief,
then existing any set-offs or defenses against the enforcement of any of the agreements,
terms, covenants or conditions hereof and any modifications hereof upon the part of Tenant
to be performed or complied with, and, if so, specifying the same;
(c)
The rent then payable under this Lease and the dates, if any, to which the rent and
any other charges hereunder have been paid;
(d) The dates of commencement and expiration of the Term;
(e) Whether or not, to the best knowledge of the certifying party, the other party is in
default in the performance of any covenant, agreement or condition contained in this Lease
and, if so, specifying each such default.
ARTICLE XX.
Notices
Any and all notices, demands, requests, submissions, approvals, consents, disapprovals,
objections, offers or other communications or documents required to be given, delivered or served
or which may be given, delivered or served under or by the terms and provisions of this Lease or
pursuant to law or otherwise, shall be in writing and shall not be effective unless and until
received; provided, that such notice shall be presumed to have been received, if hand-delivered, on
the date of such delivery, and, if mailed, on the third business day following the date on which it
is sent by Registered or Certified Mail, return receipt requested, first-class postage prepaid
thereon and deposited with any regularly maintained United States Post Office, branch Post Office,
Post Office Station or Substation, at the following addresses:
| If to the City: | City of East Chicago | |||||
| 0000 Xxxxxxxx Xxxxx | ||||||
| X.X. Xxx 000 | ||||||
| Xxxx, Xxxxxxx, Xx 00000 | ||||||
| Attention: | Join Xxxxx, Director | |||||
| If to Tenant: | Showboat Marina Partnership | |||||
| Attention: | ||||||
- 29 -
or to such other address as either party shall specify to the other by similarly given notice.
ARTICLES
XXI.
Limitation
of Liability
The term “the City” as used in this Lease, as far as the covenants and agreements of the City
in this Lease are concerned, shall be construed to mean only the holder or holders of the City’s
interest in this Lease at the time in question. Any transfer or transfers of the City’s interest,
other than a transfer for security prior to foreclosure thereof, shall be subject to Tenant’s
prior written approval, which shall not be unreasonably withheld, provided, however, that Tenant’s
approval shall not be required for a transfer to another entity created or established by the
Indiana General Assembly having all of the City’s present powers and authority with regard to this
Lease and the Leased Premises. Subject to the foregoing, in the event of any transfer of the City’s
interest, if Tenant receives any executed assignment instrument
permitted under the terms of this
Lease, wherein the assignee of the City assumes and agrees to perform all of the liabilities and
covenants of the City hereunder, then the City herein named (and in case of any subsequent
transfer, the then transferor) shall be automatically freed and relieved, as to occurrences after
the date of such transfer, from all duties and obligations relating to the performance of any
covenants or agreement on the part of the City to be performed or observed after such transfer. Any
funds in which Tenant has an interest and which are in this hands of the City at the time of such
transfer shall be turned over to the transferee, and any amount then
due and payable to Tenant
shall be paid to Tenant by the then transferor. It is the intent of this Article XXI that the
provisions of this Lease shall be binding upon the City, its successors and assigns only during and
in respect to the respective successive periods of ownership. In any event, and notwithstanding any
other provision of this Lease, neither the City (including any successor or the City) not any
member, officer, director, agent, partner, trustee or employee thereof shall be liable in an
individual or personal capacity for the performance or nonperformance
of any agreement, covenant or
obligation of the City contained in this Lease, and the City’s liability shall be limited to the
value of Leased Premises in its then current condition.
ARTICLE
XXII.
Trustee
Whenever in Articles XII or XIV of this Lease a “Trustee” is mentioned, or any action by the
“Trustee” is required, the following provisions shall apply.
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(a) So long as there exists on the Leased Premises a mortgage or other financing lease,
assignment or other financing document given pursuant to Article VI of this Lease, the
Provider shall, if it so elects, act as Trustee for purposes of this Lease. Such Provider
shall also be entitled to designate any bank, savings bank or savings and loan association
having an office in East Chicago, Indiana, to act as Trustee should such Provider elect
not to act as Trustee or, having once elected to act as Trustee, elect to cease acting as
Trustee and designate a successor Trustee.
(b) If the Provider elects not to act as Trustee or elects to cease acting as Trustee and
does not designate, within ten (10) days of a written request by the City or Tenant, a
substitute or successor Trustee, the City and Tenant shall promptly designate by agreement
a bank, savings bank or savings and loan association having an office in East Chicago,
Indiana, to act as Trustee. If the City and Tenant cannot reach agreement on such
designation within thirty (30) days, the determination shall be made by random selection
among the Trustees proposed by the City and Tenant; provided, that the City and Tenant
shall not submit more than two (2) proposed Trustees each for purposes of such selection.
(c) In the event that any financing documents then in force do not make provisions as to
the duties of the Trustee, the City and Tenant shall enter into an agreement with the
Trustee appropriately covering the duties of the Trustee hereunder, upon such terms and
conditions as may be reasonably necessary to allow the Trustee to perform its functions as
required under this Lease and on such other terms and conditions as such Trustee shall
reasonably require; provided, that the City shall not be required to assume any
obligations or liabilities other than as provided in this Lease; and provided further,
that the Trustee shall be required to turn over any funds held by it to a successor
Trustee in the event any successor Trustee is designated pursuant to paragraph (d) of this
Article.
(d) In the event that any Trustee or substitute or successor Trustee fails or refuses to
act as required by the provisions of this Lease or the agreement identified in the
preceding paragraph, the City and Tenant shall promptly designated by agreement a
successor Trustee meeting the requirements of paragraph (b) of this Article and shall
enter into an agreement with such successor Trustee as required by paragraph (c) of this
Article. If the City and Tenant cannot agree on a successor Trustee within fifteen (15)
days after both receive notice of the Trustee’s failure or refusal to act, the
determination shall be made by random selection among the Trustees proposed by the City
and Tenant, provided that the City and Tenant shall not submit more
than two (2) proposed
Trustees each for purposes of such selection.
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(e) The fees and charges of every Trustee, substitute Trustee and successor Trustee acting
hereunder shall be borne solely by Tenant and shall be paid in such manner and
frequency as required by any such Trustee.
(f) If the Provider shall elect not to act as Trustee, such Provider shall nevertheless
be entitled to be a party to any agreement between the City, Tenant and the Trustee.
ARTICLE XXIII.
Miscellaneous Provisions
Section 23.01. Severability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each an every term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
Section 23.02. Attorneys’ Fees. In the event that either Party should default
under any of the provisions of this Lease and the nondefaulting party should employ attorneys or
incur other expenses for the collection of rent or the enforcement of performance or observance of
any obligation or agreement on the part of the defaulting party herein contained, the defaulting
party hereby agrees that it will on demand therefor pay to the nondefaulting party all reasonable
attorneys’ fees (including paraprofessional fees) and such other expenses incurred by the
nondefaulting party.
Section 23.03.
Force [Majeure]. In case by reason of force majeure either party
hereto shall be rendered unable wholly or in part of carry out its obligations under this Lease
other than the obligation of Tenant to make the rental payments required under the terms hereof,
then except as otherwise provided in this Lease, if such party shall give notice and full
particulars of such force majeure in writing to the other party within a reasonable time after the
occurrence of the event or a cause relied on, the obligations of the party giving such notice, so
far as they are affected by such force majeure, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and such party shall endeavor to remove or
overcome such inability with all reasonable dispatch.
Section 23.04. No Oral Modification. All prior understandings and agreements
between the parties are merged within this Lease, which alone fully and completely sets forth the
understanding of the parties, and this Lease may not be changed orally or in any manner other than
by an agreement in writing and signed by the party against whom enforcement of the change is
sought.
- 32 -
Section 23.05. Remote Vesting. This Lease and all rights and interests created
hereby are intended to comply in all respects with applicable common or statutory law, including
the common law Rule Against Perpetuities or analogous statutory restrictions.
Section 23.06. Covenants to Bind and Benefit Respective Parties. The covenants
and agreements herein contained shall bind and inure to the benefit of the City, its successor and
assigns, and Tenant, its successors and assigns, but this Section
shall not be construed as a
consent to any assignment made otherwise then permitted by Article VIII of this Lease.
Section 23.07. Recordation. The parties hereto, on the request of either of
them, shall enter into a memorandum of this Lease, in recordable form, setting forth the identities
of the City and Tenant, and date of the expiration of the Term, and such other information as the
City and Tenant shall agree upon. Upon any extension hereof, an amendment to such agreement shall
be executed and recorded reflecting such renewal and the expiration date thereof.
Section 23.08. Captions and Table of Contents. The captions of this Lease are
for convenience and reference only and in no way define, limit or describe the scope of intent of
this Lease nor in any way affect this Lease. The table of contents preceding this Lease but under
the same cover is for the purpose of convenience and reference only and is not to be deemed or
construed in any way as part of this Lease, nor supplemental thereto or amendatory thereof.
Section 23.09. Disclaimer of Relationship. Nothing contained in this Lease,
nor any act of the City or Tenant, shall be deemed or construed by any person to create any
relationship of limited or general partnership, joint venture or agency relationship between the
City and Tenant, nor any third party beneficiary in favor of any person, either with respect to
this Lease or with respect to any financing undertaken in connection herewith.
Section 23.10. Governing Law. This Lease and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State of Indiana.
Section 23.11. Amendments of Accommodate Financing. The City agrees to make
all reasonable amendments to this Lease in order to accommodate the requirements of any Provider
providing financing to Tenant.
Section 23.12. Street Vacations and Zoning Matters. The City covenants to use all good faith
efforts to remedy any deficiencies in zoning of the Leased Premises which would prevent the
development of the Redevelopment Project. This City agrees to undertake, at Tenant’s cost and
expense, all vacations of streets, highways, alleys, casements or other public ways requested by
Tenant to permit the development of the Redevelopment Project and the full realization of its
benefits under this Lease.
- 33 -
IN WITNESS WHEREOF, the City and Tenant have executed this Lease as of the date first above
written.
| CITY OF EAST CHICAGO, | SHOWBOAT MARINA PARTNERSHIP | |||||||
| DEPARTMENT OF REDEVELOPMENT | ||||||||
By:
|
By: | |||||||
| /s/ Xxxxxx X. Matusell | /s/ X.X. Xxxxxx | |||||||
| Redevelopment Commission | ||||||||
| Title: | PRESIDENT | |||||||
| Attest: | Attest: | |||||||
| /s/ Xxxxxxx X. Xxxxx | /s/ Xxxx X. Xxxxx | |||||||
| Secretary, East Chicago | Xxxx X. Xxxxx | |||||||
| Redevelopment Commission | ||||||||
| Assistant Secretary | ||||||||
- 34 -
Exhibit “A”
PART OF FRACTIONAL SECTION 13 AND FRACTIONAL SECTION 22, TOWNSHIP 37 NORTH, RANGE 9 WEST OF THE
SECOND PRINCIPAL MERIDIAN, IN LAKE COUNTY, “G” WHICH POINT IS ON THE SOUTHEASTERLY BULKHEAD LINE
(ESTABLISHED BY U. S. GOVERNMENT PERMITS OF MARCH 27, 1908, OCTOBER
15, 1929 AND JULY 3, 1932), AND
THE SOUTHWESTERLY RIGHT OF WAY LINE OF ALDIS AVENUE EXTENDED, THIS
POINT BEING ESTABLISHED BY A “T”
RAIL IN CONCRETE: THENCE ALONG THE XXXXXXXXXXXXX XXXX XX XXXXX XXXXXX, XXXXX 00 DEGREES 46
MINUTES 06 SECONDS EAST, 1776.00 FEET TO POINT “B” ON FLAT OF SURVEY PREPARED BY THE COUNTY
SURVEYOR OF LAKE COUNTY, INDIANA, AND DATED JULY 3, 1959, WHICH IS THE POINT OF BEGINNING, SAID
POINT BEING AT THE INTERSECTION OF THE CENTERLINE OF VACATED LAKE PLACE AND THE SOUTHWESTERLY RIGHT
OF WAY LINE OF ALDIS AVENUE; THENCE ALONG THE CENTERLINE OF VACATED LAKE PLACE, NORTH 43 DEGREES 15
MINUTES 00 SECONDS EAST, A DISTANCE OF 66.30 FEET TO A POINT “Q” OF THE NORTHEASTERLY RIGHT OF WAY
LINE OF ALDIS AVENUE: THENCE NORTH 35 DEGREES 15 MINUTES 53 SECONDS EAST, 134.74 FEET TO A POINT;
THENCE NORTH 87 DEGREES 48 MINUTES 17 SECONDS EAST, 79.47 FEET TO A POINT; THENCE NORTH 45 DEGREES
33 MINUTES 40 SECONDS EAST, 100.50 FEET TO A POINT: THENCE NORTH 27 DEGREES 26 MINUTES 34 SECONDS
EAST, 102.39 FEET TO A POINT; THENCE NORTH 35 DEGREES 50 MINUTES 46 SECONDS EAST, 100.24 FEET TO A
POINT: THENCE NORTH 43 DEGREES 17 MINUTES 00 SECONDS EAST 100.18 FEET TO A POINT; THENCE NORTH 73
DEGREES 22 MINUTES 05 SECONDS EAST, 92.36 FEET TO A POINT; THENCE SOUTH 98 DEGREES 52 MINUTES 08 SECONDS EAST, 85.40 FEET TO A POINT; THENCE SOUTH 45 DEGREES 50 MINUTES 45 SECONDS EAST, 106.63
FEET TO A POINT; THENCE SOUTH 28 DEGREES 53 MINUTES 00 SECONDS EAST, 115.60 FEET TO A POINT; THENCE
SOUTH 29 DEGREES 55 MINUTES 11 SECONDS EAST, 84.42 FEET TO A POINT; THENCE SOUTH 20 DEGREES 54
MINUTES 05 SECONDS EAST, 100.04 FEET TO A POINT; THENCE SOUTH 19 DEGREES 45 MINUTES 23 SECONDS
EAST, 100.01 FEET TO A POINT; THENCE SOUTH 15 DEGREES 10 MINUTES 45 SECONDS EAST, 100.24 FEET TO A
POINT; THENCE SOUTH 13 DEGREES 49 MINUTES 39 SECONDS EAST, 64.28 FEET TO A POINT; THENCE SOUTH 09
DEGREES 56 MINUTES 52 SECONDS EAST, 113.06 FEET TO A POINT; THENCE SOUTH 04 DEGREES 06 MINUTES 11
SECONDS EAST; 100.97 FEET TO A POINT; THENCE
SOUTH 13 DEGREES 30 MINUTES 52 SECONDS WEST, 101.43 FEET TO A POINT; THENCE SOUTH 12 DEGREES 57
MINUTES 25 SECONDS WEST, 101.27 FEET TO A POINT; THENCE SOUTH 28 DEGREES 36 MINUTES 02 SECONDS EAST,
100.89 FEET TO A POINT; THENCE SOUTH 36 DEGREES 52 MINUTES 10 SECONDS EAST, 100.32 FEET TO A POINT;
THENCE SOUTH 44 DEGREES 18 MINUTES 16 SECONDS EAST, 100.12 FEET TO A POINT; THENCE SOUTH 63 DEGREES
14 MINUTES 35 SECONDS EAST, 107.70 FEET TO A POINT; THENCE SOUTH 83 DEGREES 56 MINUTES 42 SECONDS
EAST, 90.42 FEET TO A POINT; THENCE NORTH 03 DEGREES 16 MINUTES 06 SECONDS EAST, 100.05 FEET TO A
POINT; THENCE NORTH 36 DEGREES 03 MINUTES 13 SECONDS EAST, 38.83 FEET TO A POINT; THENCE SOUTH 30
DEGREES 27 MINUTES 20 SECONDS EAST, 37.74 FEET TO A POINT; THENCE SOUTH 03 DEGREES 15 MINUTES 32
SECONDS EAST, 100.40 FEET TO A POINT; THENCE SOUTH 01 DEGREE 13 MINUTES 00 SECONDS WEST, 100.00
FEET TO A POINT; THENCE SOUTH 02 DEGREES 24 MINUTES 49 SECONDS WEST, 112.44 FEET TO A POINT; THENCE
SOUTH 06 DEGREES 04 MINUTES 10 SECONDS EAST, 58.35 FEET TO A POINT; THENCE SOUTH 08 DEGREES 43
MINUTES 41 SECONDS EAST, 182.27 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF ALDIS AVENUE EXTENDED;
THENCE SOUTHEASTERLY ALONG THE XXXXXXXXXXXXX XXXX XX XXXXX XXXXXX, XXXXX 00 DEGREES 46 MINUTES 06
SECONDS EAST, 15.24 FEET TO A POINT; THENCE SOUTH 01 DEGREE 46 MINUTES 06 SECONDS EAST, 325.27 FEET
TO A POINT “C”, ON THE SOUTHEASTERLY RIGHT OF WAY LINE OF
VACATED BALTIMORE STREET; THENCE
NORTHWESTERLY ALONG THE NORTHEASTERLY RIGHT OF WAY LINE OF VACATED XXXXXXX XXXXXX, XXXXX 00 DEGREES
46 MINUTES 06 SECONDS WEST, 1,795.87 FEET TO A POINT; THENCE SOUTH 43 DEGREES 13 MINUTES 54 SECONDS
WEST, 15.90 FEET TO A POINT; THENCE NORTH 55 DEGREES 51 MINUTES 36
SECONDS WEST, 465.73 FEET TO A
POINT; THENCE NORTH 43 DEGREES 15 MINUTES 00 SECONDS EAST 319.49 FEET TO A POINT ON THE
SOUTHWESTERLY LINE OF ALDIS AVENUE EXTENDED; THENCE NORTH 46 DEGREES 46 MINUTES 06 SECONDS WEST,
330.00 FEET TO THE POINT OF BEGINNING.
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT made and entered into as of this 28th day of March, 1996, by and
between SHOWBOAT MARINA PARTNERSHIP, an Indiana general partnership
(“Assignor”) and SHOWBOAT
MARINA CASINO PARTNERSHIP, as Indiana general partnership
(“Assignee”).
WITNESSETH:
WHEREAS, Assignor and the City or East Chicago, Department of Redevelopment previously entered into
that certain Redevelopment Project Lease (the
“Lease”), Dated as of October 19, 1995 with respect
to certain land in East Chicago, Indiana as more particularly
described on Exhibit A attached
hereto and made a part hereof (the “Leased Property”) a Memorandum of which Lease was recorded on
November 10, 1995 as Instrument No. 95068690 in the Office of the Recorder of Lake County Indiana:
and
WHEREAS,
Assignor desires to assign to Assignee and Assignee desires to assume from Assignor all of
Assignor’s obligations, rights, titles and interests in and to the Lease and the Leased Property
pursuant to the terms and conditions contained herein and therein.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Assignor hereby assigns to Assignee and Assignee hereby accepts from Assignor all of Assignor’s
rights, titles and interests in and to the Lease and the Leased Property, and Assignee hereby
assumes and agrees to be bound to the performance of all obligations of Assignor as Tenant, under
the Lease, subject to all the terms and conditions the Lease. Any and all obligations accruing
under the Lease after the date hereof shall be the primary
responsibility of Assignee; provided,
however, that Assignor shall continue to liable for such obligations to the extent provided in the
Lease. Assignee agrees to indemnify Assignor and hold it harmless from any and all such Lease
obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
(Signatures
commence on following page)
| ASSIGNOR: | ||||||||||
| SHOWBOAT MARINA PARTNERSHIP | ||||||||||
| By: | SHOWBOAT INDIANA INVESTMENT | |||||||||
| LIMITED PARTNERSHIP, a Nevada limited | ||||||||||
| partnership, its general partner | ||||||||||
| By: | SHOWBOAT INDIANA, INC., a Nevada | |||||||||
| corporation, its general partner | ||||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||||
| Name: | Xxxx X. Xxxxxx | |||||||||
| Title: | Assistant Secretary | |||||||||
| ASSIGNEE: | ||||||||||
| SHOWBOAT MARINA CASINO PARTNERSHIP | ||||||||||
| By: | SHOWBOAT MARINA PARTNERSHIP, an | |||||||||
| Indiana general partnership, | ||||||||||
| its general partner | ||||||||||
| By: | SHOWBOAT INDIANA INVESTMENT | |||||||||
| LIMITED PARTNERSHIP, a Nevada limited | ||||||||||
| partnership, its general partner | ||||||||||
| By: | SHOWBOAT INDIANA, INC., a Nevada | |||||||||
| corporation, its general partner | ||||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||||
| Name: | Xxxx X. Xxxxxx | |||||||||
| Title: | Assistant Secretary | |||||||||
STATE OF NEW YORK
|
) | |||
| ) SS: | ||||
COUNTY OF NEW YORK
|
) | |||
Before me, a Notary Public in and for said County and State, personally appeared Xxxx X. Xxxxxx,
the Assistant Secretary of Showboat Indiana, Inc., a Nevada
corporation, the general partner of Showboat
Indiana Investment Limited Partnership, a general partner of
Showboat Marina Partnership,an Indiana general partnership, the
general partner of Showboat Marina Casino Partnership, a general partnership organized and existing under the laws of the
State of Indiana, and acknowledged the execution of the foregoing instrument acting for and on
behalf of said partnership.
Witness my hand and Notarial Seal this 28 day of March, 1996.
| /s/ Xxxxxxxxx X. XxXxxxx | ||||
| Signature Xxxxxxxxx X.XxXxxxx | ||||
(STAMP)
|
Xxxxxxxxx X. XxXxxxx | |||
| Printed | Notary Public | |||
My Commission Expires:
|
County of Residence: | |||
| /s/ SUFFOLK | ||||
STATE OF NEW YORK
|
) | |||
| ) SS: | ||||
COUNTY OF NEW YORK
|
) | |||
Before me, a Notary Public in and for said County and State, personally appeared Xxxx X. Xxxxxx,
the Assistant Secretary of Showboat Indiana, Inc., a Nevada corporation, the general of Showboat
Indiana Investment Limited Partnership, a Nevada limited partnership, the general partner of
Showboat Marina Partnership, a general partnership organized and existing under the laws of the
State of Indiana, and acknowledged the execution of the foregoing instrument acting for and on
behalf of said partnership.
Witness my hand and Notarial Seal this 28 day of March, 1996.
| /s/ Xxxxxxxxx X. XxXxxxx | ||||
| Signature | ||||
(STAMP)
|
Xxxxxxxxx X. XxXxxxx | |||
| Printed | Notary Public | |||
My Commission Expires:
|
County of Residence: | |||
| /s/ SUFFOLK | ||||
EXHIBIT A
LEGAL DESCRIPTION
That part
of Fractional Section 22, and Fractional Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0, Xxxx of
the Second Principal Meridian in Lake County, Indiana, more particularly described as follows:
Commencing
at Point “G” on the Southeasterly bulkhead line (established by the U.S. Government
permits of March 27, 1908, October 15, 1929, and
July 5, 1932), said point also being on the
Southwesterly right-of-way line of Aldis Avenue extended, (said point
being established by a “T” rail set in concrete); thence
along the Southwesterly line of Aldis
Avenue South 46º46’06” East (assumed record bearing),
1376.00 feet to Point “R” on Plat of Survey
prepared by the County Surveyor of Lake County, Indiana, dated
July 3, 1958, said point being the
POINT OF BEGINNING, said Point being at the intersection of the
centerline of vacated Lake Place
and the Southwesterly right-of-way line of Aldis Avenue;
thence
along the centerline of vacated Lake Place North 43º15’00” East a distance of 66.30 feet to
Point “Q” on the northeasterly right-of-way line of Aldis
Avenue;
thence
North 35º15’53” East a distance of 134.74 feet, (measured North 34º53’04” East, 134.78
feet);
thence North 87º48’17” East a distance of 79.47 feet;
thence North 45º33’40” East a distance of 100.50 feet;
thence North 27º26’34” East a distance of 102.39 feet;
thence North 35º50’46” East a distance of 100.24 feet;
thence North 43º17’00” East a distance of 100.18 feet;
thence North 73º22’05” East a distance of 92.36 feet;
thence South 88º52’08” East a distance of 85.40 feet;
thence South 45º50’45” East a distance of 106.63 feet;
thence South 28º53’00” East a distance of 115.00 feet;
thence South 29º55’11” East a distance of 84.42 feet;
thence South 20º54’05” East a distance of 100.04 feet;
thence South 19º45’23” East a distance of 100.01 feet;
thence South 15º10’45” East a distance of 100.24 feet;
thence South 13º49’39” East a distance of 64.28 feet;
thence South 09º56’52” East a distance of 113.06 feet;
thence South 04º06’11” East a distance of 100.97 feet;
thence South 13º30’52” West a distance of 101.43 feet;
thence South 12º57’25” West a distance of 101.27 feet;
thence South 28º36’02” East a distance of 100.89 feet;
thence South 36º52’10” East a distance of 100.32 feet;
thence South 44º18’16” East a distance of 100.12 feet;
thence South 63º14’35” East a distance of 107.70 feet;
thence South 83º56’42” East a distance of 90.42 feet;
thence North 03º16’06” East a distance of 100.05 feet;
thence North 36º03’33” East a distance of 38.83 feet;
thence South 30º27’20” East a distance of 37.74 feet;
thence South 03º35’32” East a distance of 100.40 feet;
thence North 45º33’40” East a distance of 100.50 feet;
thence North 27º26’34” East a distance of 102.39 feet;
thence North 35º50’46” East a distance of 100.24 feet;
thence North 43º17’00” East a distance of 100.18 feet;
thence North 73º22’05” East a distance of 92.36 feet;
thence South 88º52’08” East a distance of 85.40 feet;
thence South 45º50’45” East a distance of 106.63 feet;
thence South 28º53’00” East a distance of 115.00 feet;
thence South 29º55’11” East a distance of 84.42 feet;
thence South 20º54’05” East a distance of 100.04 feet;
thence South 19º45’23” East a distance of 100.01 feet;
thence South 15º10’45” East a distance of 100.24 feet;
thence South 13º49’39” East a distance of 64.28 feet;
thence South 09º56’52” East a distance of 113.06 feet;
thence South 04º06’11” East a distance of 100.97 feet;
thence South 13º30’52” West a distance of 101.43 feet;
thence South 12º57’25” West a distance of 101.27 feet;
thence South 28º36’02” East a distance of 100.89 feet;
thence South 36º52’10” East a distance of 100.32 feet;
thence South 44º18’16” East a distance of 100.12 feet;
thence South 63º14’35” East a distance of 107.70 feet;
thence South 83º56’42” East a distance of 90.42 feet;
thence North 03º16’06” East a distance of 100.05 feet;
thence North 36º03’33” East a distance of 38.83 feet;
thence South 30º27’20” East a distance of 37.74 feet;
thence South 03º35’32” East a distance of 100.40 feet;
thence South 01º33’00” West a distance of 100.00 feet;
thence South 02º24’49” West a distance of 112.44 feet;
thence South 06º04’10” East a distance of 58.35 feet;
thence South 08º43’41” East a distance of 182.27 feet to a point on the Southwesterly line of Aldis Avenue extended;
thence Southeasterly along the Southwesterly line of Aldis Avenue South 46º46’06” East a distance of 15.24 feet;
thence South 01º46’06” East a distance of 325.27 feet to a brass plug in concrete found at Point “C” on the Northeasterly right-of-way of vacated Baltimore Street;
thence Northwesterly along the Northeasterly right-of-way line of vacated Baltimore Street
North 46º46’06” West a distance of 1285.87 feet, (1284.97 feet measured);
thence South 43º13’54” West a distance of 15.90 feet (15.81 feet measured);
thence North 55º51’36” West a distance of 465.73 feet;
thence North 43º15’00” East a distance of 319.49 feet on the Southwesterly line of Aldis Avenue extended;
thence Northwesterly along the Southwesterly line of Aldis Avenue extended North 46º46’06” West a distance of 330.00 feet to the POINT OF BEGINNING, containing 27.23 acres, more or less, all in East Chicago, Lake County, Indiana.
thence South 02º24’49” West a distance of 112.44 feet;
thence South 06º04’10” East a distance of 58.35 feet;
thence South 08º43’41” East a distance of 182.27 feet to a point on the Southwesterly line of Aldis Avenue extended;
thence Southeasterly along the Southwesterly line of Aldis Avenue South 46º46’06” East a distance of 15.24 feet;
thence South 01º46’06” East a distance of 325.27 feet to a brass plug in concrete found at Point “C” on the Northeasterly right-of-way of vacated Baltimore Street;
thence Northwesterly along the Northeasterly right-of-way line of vacated Baltimore Street
North 46º46’06” West a distance of 1285.87 feet, (1284.97 feet measured);
thence South 43º13’54” West a distance of 15.90 feet (15.81 feet measured);
thence North 55º51’36” West a distance of 465.73 feet;
thence North 43º15’00” East a distance of 319.49 feet on the Southwesterly line of Aldis Avenue extended;
thence Northwesterly along the Southwesterly line of Aldis Avenue extended North 46º46’06” West a distance of 330.00 feet to the POINT OF BEGINNING, containing 27.23 acres, more or less, all in East Chicago, Lake County, Indiana.
ACKNOWLEDGEMENT OF COMMENCEMENT DATE
OF REDEVELOPMENT PROJECT LEASE
AND NOTICE OF ELECTION TO TAKE POSSESSION OF LEASED PREMISES
OF REDEVELOPMENT PROJECT LEASE
AND NOTICE OF ELECTION TO TAKE POSSESSION OF LEASED PREMISES
THE CITY OF EAST CHICAGO, DEPARTMENT OF REDEVELOPMENT, existing pursuant to IC 36-7-14 (“City”) and
SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership (“Tenant”) hereby acknowledge,
pursuant to Section 2.01 of that certain Redevelopment
Project Lease dated October 19, 1995
(“Lease”), a Memorandum of which is recorded as
Instrument No. 95068690 in the Office of
the Recorder of Lake County, which Lease was originally entered into by and between the City as
Landlord and Showboat Marina Partnership, an Indiana general partnership as tenant, which has
assigned its right, title and interest in the Lease to Tenant under a certain Lease Assignment and
Assumption Agreement of even date herewith, which Lease has been amended by that certain First
Amendment to Redevelopment Project Lease between City and Tenant dated as of even date herewith
(the Lease as amended by the First Amendment to Redevelopment Project Lease hereinafter referred to
collectively as the (“Lease”), that the Commencement Date of the Lease, being the date that a
certificate of suitability was issued by the Indiana Gaming Commission to Showboat Marina
Partnership, and which certificate of suitability has been assigned and transferred to Tenant, is
January 8, 1996.
Pursuant to Section 2.05 and Article III, of the Lease Tenant hereby gives to City written
notice of Tenant’s election to take possesion of the Leased Premises subject to the provision of
the Lease and City acknowledges hereby acknowledges receipt of such notice.
IN
WITNESS WHEREOF, City and Tenant have caused this instrument to be executed by their
authorized representatives effective as of the 28th day of March, 1996.
SIGNATURES
APPEAR ON FOLLOWING PAGES
| “CITY” | ||||||
| CITY OF EAST CHICAGO DEPARTMENT OF REDEVELOPMENT | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Xxxxx X. Xxxxx | ||||||
| Vice President of East Chicago Redevelopment Commission | ||||||
| ATTEST: | ||||
By: |
/s/ Xxxxxx X. Xxxxx, | |||
| Xxxxxx X. Xxxxx, Asst. Sec East Chicago Redevelopment Commission |
||||
-2-
STATE OF INDIANA
|
) | |||||
| SS: | ||||||
COUNTY OF LAKE
|
) | |||||
Before
me a Notary Public in and for said County and State, personally appeared Xxxxx
X. Xxxxx and Xxxxxx X. Xxxxx the Vice President and Assistant Secretary, respectively, of the
East Chicago Redevelopment Commission, the governing body of the City of East Chicago
Department of Redevelopment existing under IC 36-7-14, and acknowledged the execution of the
foregoing instrument as such officers acting for and on behalf of said entity.
Witness my hand and Notarial Seal this 28th day of March, 1996.
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Signature | ||||||
| Printed | Notary Public | |||||
| My Commission Expires: | County of Residence: | |
| April 13, 1998 | Lake |
| SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership |
||||
| By: | Showboat Marina Partnership, an Indiana | |||
| general partnership, its general partner | ||||
| By: | Showboat Indiana Investment Limited | |||
| Partnership, a Nevada limited | ||||
| partnership, its general partner | ||||
| By: | Showboat Indiana, Inc., a Nevada | |||
| corporation, its general partner | ||||
| By: | /s/ J. Xxxxx Xxxxxxx | |||
| J. Xxxxx Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
- 4 -
STATE OF INDIANA
|
) | |||||
| SS: | ||||||
COUNTY OF LAKE
|
) | |||||
Before me a Notary Public, in and for said County and State personally appeared J.
Xxxxx Xxxxxxx, the President and Chief Executive Officer of Showboat,
Indiana, Inc., a Nevada
corporation, which corporation is the general partner of Showboat Indiana Investment Limited
Partnership, a Nevada limited partnership, a general partner of Showboat Marina Partnership,
an Indiana general partnership, a general partner of Showboat Marina Casino Partnership, an
Indiana general partnership, who acknowledged the execution of the foregoing instrument for
and on behalf of Showboat Marina Casino Partnership.
Witness
my hand and notarial seal this 28th day of March, 1996.
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Signature XXXXXXX X.
XXXXXXX NOTARY PUBLIC STATE OF INDIANA LAKE
COUNTY MY COMMISSION EXP. APR. 13, 1998 |
||||||
| Printed | Notary Public | |||||
| My Commission Expires: 4/13/98 |
County of Residence LAKE |
This
Instrument was prepared by Xxxxx X. Xxxxxxxxx , Ice Xxxxxx Xxxxxxx & Xxxx, Xxx Xxxxxxxx Xxxxxx,
Xxx 00000. Indianapolis, indiana 46282-0002, (000)000-0000.
FIRST AMENDMENT TO REDEVELOPMENT PROJECT LEASE
THIS FIRST AMENDMENT TO REDEVELOPMENT PROJECT LEASE (“Amendment”) is made and entered into
as of this 28 day of March, 1996, by and between the CITY OF EAST CHICAGO DEPARTMENT OF
REDEVELOPMENT (“City”) and SHOWBOAT MARINA CASINO PARTNERSHIP (‘Tenant”).
Recitals
1. On
October 19, 1995, City entered into a Redevelopment Project Lease
with Showboat Marina Partnership, an
Indiana general partnership, a Memorandum of which was recorded as
Instrument No. 95068690 in the
Office of the Recorder of Lake County, Indiana (“Lease”).
2.
Showboat Marina Partnership has assigned its interest in the Lease to Tenant under a
Lease Assignment and Assumption Agreement of even date herewith (“Assignment”), recorded as
Instrument No. 96020394, in the Office of the Recorder of Lake County, Indiana, to which
assignment the City has given its written consent.
3. Under
Section 1.05 of the Lease the City’s demise to Tenant is made subject to, among other
things, easements, restrictions, agreements, covenants and other matters of
record to which Tenant consents
in writing.
4. Under certain title insurance policy commitments issued by Xxxxxxx Title
Guaranty Company and Chicago Title
Insurance Company, there appear certain easements, restrictions agreements mortgages and other matters
running in favor of Inland Steel Company or its mortgagees identified
on Exhibit A attached
hereto and made a part hereof (hereinafter the
“Encumbrances”), to which Tenant has not and
will not give its written consent.
5. The
City is in process of removing the Encumbrances from the Leased Premises
through
the exercise of its power of eminent domain.
6. The City, in order to induce the Tenant to accept possession of the Leased Premises, is
willing to agree to amend the Lease in certain particulars.
Agreement
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree and acknowledge that the above recitals are true and
correct and are incorporated herein as if fully set out herein, and, further agree as follows:
1. The Lease is hereby amended to provide, and City and Tenant hereby covenant and agree,
that (i) to the extent that Tenant is unable to perform, or is delayed in the performance of, any
of its obligations under this Lease on account of the exercise of any rights under or the
enforcement or attempted enforcement by any person of any rights under the Encumbrances, such
nonperformance or delay in performance, shall not be deemed a breach of, a default or Event of
Default under this Lease and City shall not undertake or pursue any enforcement of this Lease
against Tenant on account thereof, (ii) Tenant shall be excused from further performance of such
obligations until such cause is remedied, (iii) rental payments will be proportionally abated
during any period that Tenant is prevented from or delayed in commencing or continuing its
operations in the Redevelopment Project, and (iv) the term of the Lease shall be extended for the
length of such period.
2. The Lease is further hereby amended to provide, and City and Tenant hereby covenant and
agree, that, without limiting the generality of the foregoing
amendments contained in Paragraph 1 hereof, any
inability of Tenant to perform or delay in Tenant’s performance of its obligations to commence and
to substantially complete construction of the Redevelopment Project within the time periods
required by Section 5.03 of the Lease, which inability or delay is cause by, arises out of or is
related to the exercise of any rights under the Encumbrances or shall be deemed to constitute an
“Unavoidable Delay” under Article III of the Lease, and Tenant
shall not be liable for liquidated damages on account thereof and
the periods for the performance of Tenant’s obligations under said
Section shall be extended by the period during which it is
prevented from or delayed in performing such obligations on
account of such Unavoidable Delay.
3. The Lease is further hereby amended to provide and City and
Tenant hereby covenant and
agree that notwithstanding anything contained herein or in the
Lease, Tenant does not hereby consent
to the Encumbrances, and the taking of possession of the Leased
Premises, including the giving of
notice of its election to take possession of the Leased
Premises, shall not be deemed to constitute
such consent, and the Tenant does not waive any rights it may
have under the Lease or otherwise with respect to the existence of
the Encumbrances.
4. The Lease as amended pursuant to this amendment and any rights
granted to Tenant
hereunder shall also insure to the benefit of any Provider (as
defined under the Lease).
5. Except as herein provided, the other terms and provisions of the Lease
shall continue in
full force and effect, and the parties hereby reaffirm confirm
and ratify the Lease, as hereby amended.
IN WITNESS WHEREOF, the parties to this First Amendment to Redevelopment Project
Lease have caused the same to be executed by their duly authorized representatives as of the date first
written above, to be effective immediately following the Assignment.
SIGNATURES APPEAR ON FOLLOWING PAGES
| “CITY” | ||||||||
| CITY OF EAST CHICAGO DEPARTMENT | ||||||||
| OF REDEVELOPMENT | ||||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||||
| Xxxxx X. Xxxxx Vice President of East Chicago Redevelopment Commission |
||||||||
ATTEST: |
||||||||
By:
|
/s/ Xxxxxx X. Xxxxx | |||||||
| Xxxxxx X. Xxxxx, ASST SEC | ||||||||
| East Chicago Redevelopment Commission | ||||||||
-3-
STATE OF INDIANA )
SS:
COUNTY OF LAKE )
Before me, a Notary Public, in and for said County and State, personally appeared Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx, the Vice President and Assistant Secretary, respectively, of the East
Chicago Redevelopment Commission, the governing body of the City of East Chicago Department of
Redevelopment, existing under IC 36-7-14, and acknowledged the execution of the foregoing
instrument as such officers acting for and on behalf of said entity.
Witness my hand and Notarial Seal this 28th day of March, 1996.
| /s/ Xxxxxxx X. Xxxxxxx
|
||||
| NOTARY PUBLIC STATE OF INDIANA LAKE COUNTY MY COMMISSION EXP. APR 13, 1998 |
||||
| Printed Notary Public | ||||
My Commission Expires:
|
County of Residence: | |||
April 13, 1998
|
Lake |
-4-
| SHOWBOAT MARINA CASINO | ||||||
| PARTNERSHIP, an Indiana general partnership | ||||||
| By: | Showboat Marina Partnership, an Indiana general partnership, its partner |
|||||
| By: | Showboat Indiana Investment Limited Partnership, a Nevada limited partnership, its partner |
|||||
| By: | Showboat Indiana, Inc., a Nevada corporation, its general partner |
|||||
| By: | /s/ J. Xxxxx Xxxxxxx | |||||
| J. Xxxxx Xxxxxxx | ||||||
| President and Chief Executive Officer | ||||||
-5-
STATE OF INDIANA
|
) | |||||
| SS: | ||||||
COUNTY OF LAKE
|
) | |||||
Before me, a Notary Public, in and for said County and State, personally appeared
J. Xxxxx Xxxxxxx, the President and Chief Executive Officer of Showboat, Indiana, Inc.,
a Nevada corporation, which corporation is the general partner of Showboat Indiana
Investment Limited Partnership, a Nevada limited partnership, a general partner of
Showboat Marina Partnership, an Indiana general partnership, a general partner of
Showboat Marina Casino Partnership, an Indiana general partnership, who acknowledged the
execution of the foregoing instrument for and on behalf of Showboat Marina Casino
Partnership.
Witness
my hand and notarial seal this 28 day of March, 1996.
| /s/ [ILLEGIBLE] | ||
| Signature | ||
| (SEAL) | ||
| Printed Notary Public |
My Commission Expires:
|
County of Residence: | |
4/13/98
|
LAKE |
This Instrument was prepared by Xxxxx B, Xxxxxxxxx, Ice Xxxxxx Xxxxxxx & Xxxx, Xxx Xxxxxxxx
Xxxxxx, Xxx 00000, Xxxxxxxxxxxx, Xxxxxxx 00000-0000, (000)000-0000.
Exhibit A
Encumbrances
| 1. | Agreement dated May 22, 1954 and recorded March 18, 1955 in Miscellaneous Record 633, page 348 as Document No. 825688. | |
| 2. | Easement Agreement dated March 11, 1955 and recorded March 18, 1955 in Miscellaneous Record 633, page 364 as Document No. 826693. | |
| 3. | Easement Agreement dated March 11, 1955 and recorded March 18, 1955 in Miscellaneous Record 633, page 367 as Document No. 826695. | |
| 4. | Agreement dated December 20, 1961 and recorded February 15, 1962 in Miscellaneous Record 826, page 233 as Xxxxxxxx Xx, 000000. | |
| 5. | Quitclaim Deed dated August 17, 1988 and recorded October 13, 1988 as Document No. 002202. | |
| 6. | Mortgage dated April 1, 1928 and recorded April 16, 1928, in Mortgage Record 219, page 1, as Document No. 309283, and all supplementals thereto. | |
| 7. | Subordinate Mortgage dated September 15, 1994 and recorded October 6, 1994, as Document No. 94069298, made by and between Inland Steel Company, a Delaware corporation, and the United Steelworkers of America. |
All of said documents being recorded in Lake County, Indiana.
SECOND AMENDMENT TO REDEVELOPMENT PROJECT LEASE
THIS
AMENDMENT is made and entered into as of the 20th day of
January.
1999 by and among the CITY OF EAST CHICAGO, DEPARTMENT OF REDEVELOPMENT, existing pursuant
to Indiana Code 36-7-14 (the “City”), the CITY OF EAST CHICAGO, a municipal corporation of
Lake County, Indiana (“East Chicago”) and SHOWBOAT MARINA CASlNO PARTNERSHIP, an Indiana
general partnership (“Tenant”).
W I T N
E S S E T H:
WHEREAS, the City and Tenant’s predecessor-in-interest, Showboat Marina Partnership,
an Indiana general partnership (the “Original Tenant”), heretofore entered into that
certain
Redevelopment Project Lease dated as of October l9, 1995 (the “Lease”) with respect to
certain land in East Chicago, Lake County, Indiana, as more particularly described in
Exhibit “A” attached thereto and made a part thereof and referred to therein as the “Leased
Premises”, a Memorandum
of which Lease was recorded on November 10,1995 as Instrument
No. 95-06869 in the office of the Recorder of Lake County, Indiana (the “Memorandum”); and
WHEREAS,
the Original Tenant thereafter assigned all of its right title
and interest
said Lease to Tenant pursuant to a certain Lease Assignment arid
Assumption Agreement dated as of March 28,1996 and recorded on March 29,1996 as Instrument No. 96-020394 in the office
of the Recorder of Lake County, Indiana; and
WHEREAS, said Lease was amended by First Amendment to Redevelopment Project
Lease dated as of March 28, 1996 and recorded on March 29, 1996 as Instrument No.
96-020395 in the Office of the Recorder of Lake County, Indiana (said Lease as so
amended being hereinafter referred to as the “Lease”); and
WHEREAS, the City and Tenant thereafter executed a certain Acknowledgment of
Commencement Date of Redevelopment Project Lease and Notice of Election to Take Possession of
Leased Premises dated as of March 28, 1996 and recorded on March 29, 1996 as Instrument No.
96-020396 in the Office of the Recorder of Lake County, Indiana; and
WHEREAS, having completed the survey called for under Section 1.01 of the Lease,
the parties now desire to amend the legal description of the Leased Premises which is
set forth in Exhibit “A” attached to the Lease to conform to such survey by deleting
said legal description and substituting therefor the legal description of the Leased
Premises which is set forth in Exhibit “A” attached hereto, which now includes the area
of filled land with dock improvements described in Exhibit A-1 attached hereto and made
a part hereof and shown on Exhibit A-2 attached hereto and made a part hereof, together
with all of the City’s and East Chicago’s right, title and interest therein, now owned
or hereafter acquired, including, without limitation, fee title by land patent from the
State of Indiana and any additional permit rights (collectively, the “Additional
Property”), as provided in Section 5.02 of the Lease; and
FILED
MAR 24 1999
XXXXX XXXXXXXX
LAKE COUNTY AUDITOR
MAR 24 1999
XXXXX XXXXXXXX
LAKE COUNTY AUDITOR
WHEREAS, Tenant purported to relinquish a portion of the Leased Premises to the City of East
Chicago for street right-of-way purposes by Quitclaim Deed dated November 1, 1996 and recorded in
the office of the Recorder of Lake County, Indiana on December 12, 1996 as Instrument No. 96081860,
which right-of-way was subsequently conveyed by East Chicago to the
City by Quitclaim Deed dated January 20, 1999 and recorded in the office of the Recorder of Lake County, Indiana on MARCH
24, 1999 as Instrument No. 99025948 and which right-of-way is more particularly
described in Exhibit “B” attached hereto and made a part hereof (the “Right-of-Way”), and the
parties now desire to restore the Right-of-Way to the Leased Premises; and
WHEREAS, contemporaneously herewith, Tenant is executing and delivering to the City of East
Chicago, Department of Parks and Recreation (the “Park Department’’) a certain Grant of Public
Beach Parking and Pavilion Easement (the “Beach Parking Easement”) and a certain Grant of Public
Beach Easement (the “Beach Easement”) (the Beach Parking Easement and Beach Easement being
hereinafter collectively referred to as the “Easements”) pursuant to the terms of paragraph 1.05(c)
of the Lease, and the parties desire to expand and extend the indemnification provisions contained
in Sections 13.01 and 13.02 of the lease to cover and include claims, liability and damages arising
out of, under or with respect to said Easements and a certain Access Easement hereinafter reserved;
and
WHEREAS, the City and Tenant now desire to further amend said Lease and to amend
said Memorandum in certain particulars, as hereinafter set forth.
NOW THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of all of which is hereby acknowledged, the
parties hereby
agree as follows:
1. The legal description of the Leased Premises contained in the Lease and of the
Premises contained in the Memorandum is hereby amended by deleting the legal
description attached
to each of the Lease and the Memorandum as Exhibit “A” and substituting therefor the
legal
description attached hereto as Exhibit “A”. All references to “Leased Premises” in the
Lease and
to “Premises” In the Memorandum hereafter shall be deemed and taken to mean the real
estate
described in Exhibit A attached hereto, including, without limitation, the Additional
Property.
2. It is understood and agreed that the Additional Property consists of the area
of filled
land and dock improvements described in paragraph 5 of the Property Description
under Department of the Army Permit No. 94-056-027-1 issued to East Chicago by the
U.S. Army Corps of Engineers, effective December 8, 1995, and in the Certificate of
Approval issued to East Chicago by the Indiana Department of Natural Resources (the
“IDNR”) pursuant to Application No. LM-95 oh May 19, 1995 (collectively the
“Permits”). All references to “City” hereinafter set forth in this paragraph 2 shall
mean and include both the City and East Chicago, as permittee under said Permits,
jointly and severally. East Chicago joins in the execution of this document solely for
purposes of consenting and agreeing to the terms and provisions hereof which are
applicable to said Permits. It is further understood and agreed that Tenant shall have
no right, title or interest in, and no liability, obligation
2
or responsibility with respect to, any of the other improvements or elements of the project
described in said Permits (the “Other Improvements”), all of which shall remain under the control
of and be the responsibility of the City. Without limitation upon any of the foregoing, it is
expressly understood and agreed that the City shall: (i) construct, install, maintain, repair and
replace, at its expense, all of the Other Improvements in strict accordance with the terms of the
Permits; (ii) maintain the Permits in full force and effect
throughout the Term of the Lease and
any renewals or extensions thereof, including, without limitation, obtaining, at its expense, all
required renewals or extensions of the Permits; (iii) observe, perform and strictly comply with the
terms, provisions, conditions and limitations of the Permits and all federal, state and local laws,
ordinances, codes, rules and regulations (collectively “laws”) applicable thereto and prevent and
refrain from any violation of any of the same, all at the City’s expense, except that Tenant shall
pay the cost of the monitoring program required under Special Condition No. 14 of the Permit issued
by the IDNR; (iv) immediately notify Tenant in writing of any material notices or other
communications received with respect to the Permits and furnish Tenant true copies of all such
notices and communications as and when received; (v) join in or consent to, as Tenant deems
necessary in its sole discretion, any communications with respect to or modifications of the
Permits which tenant determines to be necessary or desirable in its sole discretion to facilitate
Tenant’s use and/or further development of the Additional Property for the operation of Tenant’s
gaming vessel therefrom; and (vi) promptly apply for and exert best efforts to obtain, at its
expense, a patent for the additional Property pursuant to I.C. 14-18-6. In addition to the
indemnification provided for in Section 13.02 of the Lease, the City shall indemnify, defend and
save harmless Tenant from and against any and all claims, liability, loss, cost, damage and expense
(including, without limitation reasonable attorneys fees) arising out of or with respect to the
ownership, use, operation and maintenance of the Other Improvements or
any violation of the Permits of
applicable laws.
3. In addition to its repair and maintenance obligations under Article X of the Lease. Tenant
also shall maintain the Additional Property in accordance with the Permits.
4. The Right-of-Way is hereby restored to and made a part of the Leased Premises under the
Lease.
5. The City reserves a non-exclusive easement for vehicular access over, upon and across that
portion of the Leased Premises described in Exhibit “C” attached hereto and made a part hereof
and shown on Exhibit “D” attached hereto and made a part hereof (the “Access Easement”) to (i)
the adjoining parking area established by the Bench Parking Easement and (ii) the adjoining
land now or formerly owned by Inland Steel Company (the “Inland Steel Land”) and having the
benefit of access easements reserved in that certain Quitclaim Deed in East Chicago recorded
October 13, 1988 as Document No. 02202 in the Office of the
Recorder of Lake Country, Indiana,
effective only upon the recording of an instrument releasing the easements reserved by such
Quitclaim Deed in form acceptable to Tenant, and for no other use or purpose, subject to the
terms and conditions hereinafter set forth. Said Access Easement shall: (a) constitute only a
private easement appurtenant to the Bench Parking Easement and the Inland Steel Land and not
the dedication of a public right-of-way: (b) be used only by passenger and commercial vehicles
(including buses and light trucks not exceeding five (5) tons gross weight), in common with
such
3
use thereof by Tenant and its patrons, invitees, guests and employees and others to whom Tenant may grant similar easements, and for no other use or purpose; and not be used for the transport of any hazardous materials. The City shall not cause, permit or suffer any signs to be erected or maintained upon or along said Access Easement. The City shall not transfer or assign said Access Easement or grant sub-easements therein to any other person or entity, except that the City may grant a sub-easement to Inland for ingress and egress as hereinabove provided, subject to the terms and conditions set forth herein. The Access Easement shall be subject to such reasonable rules and regulations Tenant may impose thereon from time to time for the purpose of protecting its casino and accessory businesses conducted on the Leased Premises. Said Access Easement shall terminate upon termination or expiration of the Lease, or, if sooner, in the event the City or anyone claiming by, through or under the City breaches or violates any of the foregoing terms and conditions, or in the event the use thereof is abandoned.
6.
Notwithstanding anything to the contrary contained therein, the
indemnification provided by Tenant under Section 13.01 of the
Lease is hereby expanded and extended to cover and include any and
all claims, liability and damages arising
out of the negligence of Tenant, its patrons invitees, guests or employees in connection with their use of the common parking area established under the Beach Parking Easement. Not with standing anything to the contrary contained therein the indemnification provided by the City under Section 13.02 of the Lease is hereby expanded and extended to cover and include any and all claims, liability and damages arising out of the negligence of (i) the Perks Department, its patrons, invitees, guests, employees or members of the public in connection with their use of the common parking area and the public beach and pavilion established under the Easements, or (ii) the city, its patrons invitees, guests, employees or members of the public or any licensee, permitee or grant of a sub-easement in connection with their use of the Access Easement hereinabove reserved.
7.
All capitalized terms used herein and not otherwise defined shall have the same meaning and definition as provided in the Lease
8.
Except as herein expressly provided, all terms and provisions of the Lease and the Memorandum shall remain the same and the Lease and the Memorandum, as hereby attended are hereby ratified and confirmed.
4
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first above written.
| CITY OF EAST CHICAGO, DEPARTMENT OF REDEVELOPMENT | ||||||||||
Attest
Xxxxxxx X. Xxxxx
|
By: | /s/ Xxxx X. Xxxxx | ||||||||
| SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership |
||||||||||
| By: | SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership, its general partner |
|||||||||
| By: | SHOWBOAT INDIANA INVESTMENT LIMITED PARTNERSHIP, a Nevada limited partnership, its general partnership |
|||||||||
| By: | SHOWBOAT INDIANA, INC., a Nevada corporation, its general partner |
|||||||||
| By: | /s/ Xxxxx X. Xxxx | |||||||||
| Name: Title: |
Xxxxx X. Xxxx
|
|||||||||
| CITY OF EAST CHICAGO, a municipal corporation of Lake County, Indiana | ||||||||||
Attest
[ILLEGIBLE]
5
STATE OF INDIANA
|
) | |||||
| ) | SS: | |||||
COUNTY OF LAKE
|
) |
Before
me, a Notary Public in and for said County and State, personally appeared Xxxx X.
Xxxxx and Xxxxxxx X. Xxxxx, the Executive Director and Secretary respectively, of the
City of East Chicago Redevelopment Commission, the governing body of the City of East Chicago
Department of Redevelopment, existing under I.C. 36-7-14, and acknowledged the execution of the
foregoing instrument as such officers acting for and on behalf of said department.
Witness my hand and Notarial Seal this 20th day of January, 1999.
| /s/ XXXXXX X. XXXXXXXX | ||||
| XXXXXX X. XXXXXXXX, Notary Public | ||||
My Commission Expires:
January 31, 2007
My County of Residence:
Xxxxxx
6
STATE
OF TENNESSEE
|
) | |||||
| ) | SS: | |||||
COUNTY OF SHELBY
|
) |
Before
me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxx, the
Secretary, of Showboat Indiana, Inc, a Nevada corporation, the general partner of Showboat Indiana
Investment Limited Partnership, a general partner of Showboat Marina Partnership, an Indiana
general partnership, the general partner of Showboat Marina Casino Partnership, a general
partnership organized and existing under the laws of the State of Indiana, and acknowledged the
execution of the foregoing instrument acting for and on behalf of said partnership.
Witness my land and Notarial Seal this 8th day of March 1999.
| /s/ [ILLEGIBLE] | ||||
| Notary Public | ||||
My Commission Expires:
March 30, 1995
My County of Residence:
Xxxxxx
7
STATE OF INDIANA
|
) | |||||
| SS: | ||||||
COUNTY OF LAKE
|
) |
Before me, a Notary Public in and for said County and State, personally appeared Xxxxxx X.
Xxxxxxxx, and, Xxxx Xxxxxx Xxxxxxx, the Mayor and Clerk of the City of East Chicago, a municipal
corporation of Lake County, Indians, who acknowledged execution of the foregoing instrument for and
on behalf of said municipal corporation.
Witness my hand and Notarial Seal this 23rd day of February, 1999.
| /s/Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx, Notary Public | ||||
My Commission Expires:
02.13-08
My County of Residence:
Lake
Lake
This instrument was prepared by Xxxxxx X Xxxxxx, Attorney at Law, Dam Pecar Xxxxxx & Kleimen, One
American Square. Suite 2300, Box: 82008, Xxxxxxxxxxxx, Xxxxxxx 00000.
8
PROPERTY DESCRIPTION
That part of Fractional Section 22 and Fractional Section 15, Township 39 North, Range 9 West of
the Second Principal Meridian in Lake County, Indiana more particularly described as follows:
Commencing
at Point “G” on the Southeasterly bulkhead line (established by the U. S. Government
permits of March 27, 1908, October 15, 1925 and July 5, 1932) said point also being on the
Southwesterly right-of-way line of Aldis Avenue extended; thence South 46º 46’08” East (assumed
Record Bearing) along the Southwesterly line of Aldis Avenue, 1376.00 to a Iron Pipe on the
centerline of Vacated Lake Place and the Point of Beginning; thence North 43’15’00” East. Along the
centerline of Vacated Lake Place, 66.30 feet; thence North 27’87’17” East, 79.47 feet; thence
North 33’50’46” to a In. Pipe on the Northeasterly right-of —way line of Aldis Avenue; thence
North 34’33’04” East, 134.78 feet; thence North 87’48’17” East, 79.47 feet; thence North 45’33’40”
East, 100.50 feet; thence North 27’26’34” East, 102,39 feet; thence North 35’50’46” East; 100.24
feet; thence North 43’17’00” East, 100.18 feet; thence North 73’22’05” East, 92.36 feet; thence
South 88’52’08” East, 85.40 feet; thence South 45’50’45” East 106.63 feet; thence North 72’41’04”
East along the North Edge of Dock, 63.28 feet; thence North 17’40’39” East along the east edge Dock
578.84 feet; thence South 72’59’54” West, 13.46 feet; thence North 17’40’39” West, 47.85 feet;
thence South 74’17’22” West, along the South edge of Dock, 61.64 feet; thence South 09’56’52” East,
57.80 feet; thence South 04’06’11” East, 100.97 feet; thence South 13’30’32” West, 101.43 feet;
thence South 12’57’25” West, 101.27 feet; thence South 28’38’02” East, 100.89 feet; thence South
38’52’10” East, 100.32 feet; thence South 44’18’16” East, 100.12 feet; thence South 63’14’35” East,
107.70 feet; thence South 83’56’42” East, 90.42 feet; thence North 03’16’03” East, 100.05 feet;
thence North 03’35’32” East 38.83 feet; thence South 30’27’20” East, 37.74 feet; thence South
48’46’05” East, along said Southwesterly line 15.24 feet to the East line of said Fractional
Section 22; thence South 01’46’06” East, along sold East line, 325.27 feet, to a Monument found at
Point “C” at the intersection of the East line of sold Fractional Section 22 and the Northeasterly
line of vacated Baltimore Avenue extended, 1284.86 feet; thence South 43’13’54” West, 15.90 feet;
thence North 55’51’36” West, 465,73 feet; thence North 43’15’00” East 319.49 feet, to the
Southeasterly line of Aldis Avenue extended; thence North 46’46’06” West, along sold Southwesterly
line, 330.00 feet to the Point of Beginning. Continuing 27.942 acres, more or less.
EXHIBITS “A”
9
PROPERTY ADDITION DESCRIPTION
That part of Fractional Section 22 and Fractional Section 15, Township 39 North, Range 9 West of
the Second Principal Meridian in Lake County, Indiana more particularly described as follows:
Commencing at Point “G” on the Southeasterly bulkhead line (established by the U. S. Government
permits of March 2, 1908, October 15, 1925 and July 5, 1932) said point also being on the
Southwesterly right-of-way line of Aldis Avenue extended;
thence South 45’46’08” East (assumed Record Bearing) along the Southwesterly line of Aldis Avenue
extended, 376.00 to a Iron Pipe on the centerline of vacated Lake Place; thence North 43’15’00”
East Along the centerline of vacated Lake Place, 86.30 feet to a Iron Pipe on the Northeasterly
right-of-way line of Aldis Avenue; thence North 34’53’04” East, 134.78 feet; thence North 87’48’17”
East, 79.47 feet; thence North 45’33’40” East, 100.50 feet; thence North 27’26’34” East, 102.39
feet; thence North 35’50’46” East, 0.24 feet: thence North 43’17’00 East 100.18 feet; thence North
73’22’05 East, 106.63 feet; thence South 28’53’00 East 115.60 feet; thence South 29’55’11” East,
43.65 feet to the Point of Beginning; thence North 72’41’04” East, along the North Edge of Dock,
63.28 feet; thence North 17’40’39” West,68.50 feet thence North 73’08’53’ East 13.57 feet thence
South 17’40’39 East,along the East edge Dock. 576.84 feet: thence South 17’40’39’’ East, along the
East edge Dock.576.84 Feet: thence South 72’59’54’’ West 13.40 feet; thence North 17’40’39” West,
47.95 feet; thence South 74’17’22” West, along the South edge of Dock, 61.64 feet; thence North
09’56’52” West, 55.26 feet; thence north
13’49’39’’ West, 84.28 feet;thence North 15’10’45’’ West
100.24 feet; thence North 19’45’25” West, 100.01 feet; thence North 20’54’05” West, 100.04 feet;
thence North 29’55’11” West, 40.77 feet to the Point of Beginning. Containing 0.72 acres, more or
less.
EXHIBIT
“A-1”
10
EXHIBIT
“A-2”
11
A part of Fractional Section 22, Township 37 North, Range 9 West, Lake Country, Indiana, described
as follows: Commencing at a Point “G” which point is on the southeasterly bulkhead line
(established by U.S. Government Permits of March 27,1929 and
July 5, 1932), and the southwesterly
line of Aldis Avenue extended, this point being established by a “T” rail set in concrete (the
foregoing portion of this description is taken from Instrument No. 95083039): thence South 47
degrees 11 minutes 52 seconds East 428.549 meters (1,406.00 feet) along the southwestern boundary
of said Aldis Avenue to the southeastern boundary of vacated Lake Place and the point of beginning
of this description; thence North 42 degrees 49 minutes 14 seconds East 20.208 meters (66.30 feet)
along the prolonged southeastern boundary of said vacated Lake Place to the prolonged northeastern
boundary of said Aldis Avenue; thence South 47 degrees 11 minutes 52 seconds East 168.595 meters
(545.57 feet) along the prolonged boundary of said Aldis Avenue; thence South 42 degrees 45 minutes
13 seconds West 51,447 meters (168.79 feet); thence South 47 degrees 14 minutes 37 seconds East
220.000 meters (721.78 feet); thence South 42 degrees 45 minutes 23 seconds West 39.041 meters
(128.09 feet) to the northeastern boundary of vacated Baltimore Street; thence North 47 degrees 11
minutes 52 seconds West 295.214 meters (968.55 feet) along the boundary of said vacated Baltimore
Street to the northwestern line of the undersigned’s leasehold premises; thence North 42 degrees 47
minutes 02 seconds East 70.104 meters (230.00 feet) along said northwestern line to the prolonged
southwestern boundary of said Aldis Avenue; thence North 47 degrees 11 minutes 52 seconds West
91.440 meters (300.00 feet) along the prolonged boundary of said Aldis Avenue to the point of
beginning and containing 1.721 hectares (4.252 acres), more or less.
EXHIBIT “B”
12
ACCESS ROAD EASEMENT DESCRIPTION
That part of Fractional Section 22 and Fractional Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0, Xxxx of
the Second Principal Meridian in Lake County, Indiana more particularly described as follows:
Commencing at Point “G” on the Southeasterly bulkhead line (established by the U.S. Government
permits of March 27, 1908. October 15, 1925 and July 5, 1932) said point also being on the
Southwesterly right-of-way line of Aldis Avenue extended; thence South 46.°46.’06”. East (assumed
Record Bearing) along the Southwesterly line of Aldis Avenue, 1376.00 to a Iron Pipe on the
centerline of vacated Lake Place; thence North 43°15’00”. East, 66.30 feet to the Northeasterly
line of Aldis Avenue; thence South 46°46’06”. East, along said Northeasterly line and said line
extended. Southeasterly, 440.19 feet to the point of Beginning; thence continuing South 46°48’06”.
East, along said Northeasterly line of Aldis Avenue extended. Southeasterly, 83.83 feet; thence
South 43°13’54”. West, 55.02 feet; thence South 00°33’52” East, 14.85 feet; thence on a curve to
the right, 15.46 feet said curve having a radius of 25.00 feet or a chord that bears South
17°08’52” West, 15.21 feet; thence South 34°51’37”. West 45.13 feet; thence on a curve to the left
121.13 feet said curve having a radius of 85.00 feet and a chord that bears South 05°58’55”. East,
111.18 feet; thence South 46°49’26” East, 1341.96 feet to the East line of said Fractional Section
22; thence South 01°48’08” East, along said East line, 39.70; thence North 48°53’45” West, 717.33
feet; thence North 48°44’10” West, 652.67 feet; thence on a curve to the right, 161.10 feet, said
curve having a radius of 113.00 feet and a chord that bears North 05°58’55” West, 147.80 feet; thence
North 34°51’37” East, 24.52 feet; thence on a curve to the left 81.71 feet, said curve having a
radius of 60.00 feet and a chord that bears North 04°09’18” West, 75.54 feet; thence North
43°10’14” West, 20.54 feet; thence North 43°13’54” East, 51.43 feet to the Point of Beginning.
EXHIBIT
“C”
13
Exhibit“D”
14
CONSENT OF MORTGAGEE
The
undersigned, Firstar Bank of Minnesota, N.A., a national banking association (successor
by merger to American Bank National Association), as Mortgagee under that certain Leasehold
Mortgage, Assignment of Rents and Security Agreement from Showboat Marina Casino Partnership,
an Indiana general partnership, as Mortgagor, dated March 28, 1996 and recorded March 29, 1996
as Instrument No. 96-020397 in the office of the Recorder of
Lake County, Indiana, does hereby
consent to the execution by said Mortgagor of the above and foregoing Second Amendment to
Redevelopment Project Lease.
IN
WITNESS WHEREOF, the undersigned Mortgagee has executed this Consent
on this [ILLEGIBLE] day of march 1999.
| FIRSTAR BANK OF MINNESOTA,N.A. | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxx III
|
|||||
| Title: | VICE PRESIDENT | |||||
Attest: |
||||
By:
|
/s/ Xxxxxx X. Xxxxxx Xx Xxxxx | |||
Name:
|
Xxxxxx X. Xxxxxx Xx Xxxxx | |||
Title:
|
Assistant Vice President |
15
STATE OF Minnesota
|
) | |||||
| ) | SS: | |||||
COUNTY OF Xxxxxx
|
) | |||||
Before
me, a Notary Public in and for said County and State, personally appeared Xxxxx
X. Leslio III and A.M.
Xxxxxxx-XxXxxxx the
Vice President and Ass’t Vice President of Firstar Bank of
Minnesota, N.A., International
banking association, who
acknowledged execution of the above Consent of Mortgagee for and on
behalf of said association.
Witness my hand and Notarial Seal this 4th day of March, 1999.
| By: | /s/ Drostyn S Xxxxxxxx
|
|||||||
| Drostyn S Xxxxxxxx,
Notary Public (SEAL) |
||||||||
My Commission Expires:
January 31, 2000
My County of Residence:
My County of Residence:
Washington
This instrument was prepared by Xxxxxx X. Xxxxxx, Attorney at Law, Xxxx Xxxxx Xxxxxx &. Xxxxxxx,
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx 00000, Xxxxxxxxxxxx, XX 45282.
00
XXXXX XX XXXXXXX
XXXX XXXXXX
FILED FOR RECORD
2005 APR 20 [ILLEGIBLE]
[ILLEGIBLE]
XXXX XXXXXX
FILED FOR RECORD
2005 APR 20 [ILLEGIBLE]
[ILLEGIBLE]
APN(S):
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
AND WHEN RECORDED MAIL TO:
Xxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this “Agreement”) is made as of
this 26th day of April, 2005 by and between SHOWBOAT MARINA CASINO PARTNERSHIP, an
Indiana general partnership (“Seller”), and RIH ACQUISITIONS IN, LLC, an Indiana
limited liability company (“Assignee ”) and a wholly-owned subsidiary of Resorts
International Holdings, LLC, a Delaware limited liability company
(“Buyer”). Capitalized terms used but not otherwise defined herein
shall have the meaning given to them in the Asset Purchase Agreement (as defined
below).
RECITALS
A. Seller and Buyer, along with Tunica Partners II L.P., a Mississippi limited
partnership, GNOC Corporation, a New Jersey corporation, and Bally’s Olympia
limited
Partnership, a Delaware limited partnership, are parties to that certain Asset
Purchase Agreement
dated as of September 27, 2004 (the “Asset Purchase Agreement”), providing for
among other
things, the sale, conveyance, assignment, transfer and delivery by Seller to
Buyer or, under
certain conditions, an Affiliate of Buyer, of Seller’s right, title and
interest in and to the
Purchased Assets relating to the Casino A Property.
B. As of the date hereof, Buyer has transferred and assigned to Assignee and
Assignee has accepted the transfer and assignment of Buyer’s right, title and
interest under the
Asset Purchase Agreement in and to the Purchased Assets relating to the Casino
A Property.
C.
The Seller is a party to that certain Lease listed on
Schedule 1 attached
hereto (the “Lease”) and by this reference is made a part hereof.
D. In accordance with the terms of the Asset Purchase Agreement, Seller and
Assignee have agreed to enter into this Agreement providing for the assignment,
transfer and conveyance to Assignee of the Seller’s rights, title, benefits,
privileges and interest in, to and under the Lease.
FILED
APR 28 2005
XXXXXXX X. XXXXXXXX
LAKE COUNTY AUDITOR
APR 28 2005
XXXXXXX X. XXXXXXXX
LAKE COUNTY AUDITOR
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which ate hereby
acknowledged, Assignee and Seller agree as follows:
1.
Assignment. In accordance with and subject to the terms of the
Asset Purchase Agreement, Seller does hereby SELL, CONVEY, ASSIGN,
TRANSFER and DELIVER to
Assignee, and Assignee hereby purchases and accepts with effect as of the Closing all of
Seller’s
right, title, benefits, privileges and interest in, to and under the Lease, including, without
limitation, all security deposits, if any, that have been delivered to Seller in connection
with any
lease or sublease of the premises covered thereby.
2. Assumption. In accordance with and subject to the terms of the Asset Purchase
Agreement, Assignee does hereby, with effect as of the Closing (a) accepts the foregoing
assignments, transfers and conveyances, to the extent that such are legally assignable and
necessary consents to assignment have been obtained, of Seller’s rights, title, benefits,
privileges,
and interest in, to and under the Lease and (b) from and after the Closing, assumes,
undertakes
and agrees to pay, perform, honor and discharge promptly when due all obligations of Seller in
accordance with the respective terms of the Lease.
3. Release. Subject to the terms and conditions of the Asset Purchase Agreement,
from and after the Closing, Seller shall have no Liabilities with respect to the Lease, and
Assignee shall assume all such Liabilities. Subject to the terms and conditions of the Asset
Purchase Agreement, Assignee, for itself and its Affiliates, does hereby absolutely,
irrevocably,
forever and fully, generally and specifically, release and discharge the Seller and its
Affiliates,
from any and all Liabilities, with respect to, pertaining to, or arising from the Lease at any
time
from and after the Closing.
4. Validity. Seller represents and warrants that (i) Seller has not assigned or
executed any assignment of, and will not assign or execute any assignment of its interest in,
the
Lease to anyone other than the Assignee, and any assignment, designation or direction by
Seller
inconsistent herewith shall be void and (ii) Seller has not done any act or executed any
document
that impairs the rights of the Assignee to the Lease under this
Agreement.
5. Notices.
All notices and other communications hereunder shall be delivered in
accordance with Section 13.3 of the Asset Purchase Agreement.
6. Amendments. This Agreement shall not be amended except by a written
instrument making specific reference to this Agreement signed by each of the parties hereto.
7. Governing Law. This Agreement shall be governed by the Laws of the State of
Indiana, without giving effect to choice of law principles thereof that would cause the
application
of the Laws of any other jurisdiction.
8. Binding
on Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns and representatives.
2
9. Headings.
The subject headings or captions of the paragraphs in this
Agreement
are inserted for convenience of reference only and shall not affect the meaning, construction
or
interpretation of the any provisions contained herein. All capitalized terms defined herein
are
equally applicable to both the singular and plural forms of such terms.
10. Counterparts. This Agreement may be signed in multiple counterparts, with each
counterpart having the same force and effect as if this single instrument were executed by
each
of the parties hereto and delivered (including by facsimile) to the other party.
11. Third
Party Beneficiaries. There are no third party beneficiaries to this
Agreement.
12. Severability. If any provision of this Agreement shall be held invalid, illegal or
unenforceable, the validity, legality or enforceability of the other provisions of this
Agreement
shall not be affected thereby, and there shall be deemed substituted for the provision at
issue a
valid, legal and enforceable provision as similar as possible to the provision at issue.
13.
Conflicts. Notwithstanding anything to the contrary contained in this Agreement,
in the event of any conflict between the terms of this Agreement and the terms of the Asset
Purchase Agreement, the terms of the Asset Purchase Agreement shall control.
14. Subsequent
Action. If at any time after the date hereof the Assignee or Seller
will
consider or be advised that any instruments of conveyance, assignments, filings, assurances or
any other actions that are necessary or desirable to vest, perfect or confirm the sale,
transfer,
assignment, conveyance and delivery of the Lease to the Assignee, or otherwise to carry out
this
Agreement, the Seller or Assignee, as the case may be, shall execute and deliver all
instruments
of conveyance, filings, powers of attorney, assignments and assurances and take and do all
such
other actions and things as may be reasonably requested by the Assignee or Seller, as the case
may be, in order to vest, or perfect confirm the sale, transfer, conveyance and delivery of
the
Lease or otherwise to carry out the transactions contemplated by this
Agreement.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first
above written.
| SELLER: | ||||||||||||
| SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership | ||||||||||||
| By: | Showboat Marina Partnership, an Indiana general partnership, its general partner | |||||||||||
| By: | Showboat Indiana
Investment Limited Partnership, a Nevada limited partnership, its general partner |
|||||||||||
| By: | Showboat Indiana, Inc., a Nevada corporation its general partner | |||||||||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxxx Xxxxxxxxxx | |||||||||||
| Title: | Senior V.P. and Secretary | |||||||||||
| ASSIGNEE: | ||||||||||||
| RIH ACQUISITIONS IN, LLC, an Indiana limited liability company | ||||||||||||
| By: | Xxxxxxxx X Xxxxx | |||||||||||
| Name: | Xxxxxxxx X. Xxxxx | |||||||||||
| Title: | Board Member | |||||||||||
Assignment
and Assumption of [ILLEGIBLE] Property (Show boat)
STATE
OF TENNESSEE
COUNTY OF SHELBY
COUNTY OF SHELBY
I,
[ILLEGIBLE], a Notary Public in and for the aforesaid State
and County, hereby certify that on the 26th day of April, 2005,
Xxxxxxx xxxxxxxxxx personally appeared before me and
executed this Assignment and Assumption of Lease on behalf of Showboat Marina Casino Partnership
for the purposes described herein.
Given
under my hand and seal this 26th day of April, 2005.
| /s/ [ILLEGIBLE] | ||
| Notary Public |
My
Commission Expires: 1-29-08
(SEAL)
Assignment
and Assumption of [ILLEGIBLE] Property (Show boat)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first
above written.
| SELLER: | ||||||||||
| SHOWBOAT MARINA CASINO PARTNERSHIP, an Indiana general partnership |
||||||||||
| By: | Showboat
Marina Partnership, an Indiana general partnership, its general partner |
|||||||||
| By: | Showboat Indiana Investment Limited Partnership, a Nevada limited partnership, its general partner |
|||||||||
| By: | Showboat Indiana, Inc., a Nevada corporation, its general partner | |||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
| ASSIGNEE: | ||||||||||
| RIH ACQUISITIONS IN LLC, an Indiana limited liability company | ||||||||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||||||||
| Name: | Xxxxxxxx X. Xxxxx | |||||||||
| Title: | Board Member | |||||||||
Assignment
and Assumption of [ILLEGIBLE] Property (Show boat)
STATE
OF NEW YORK
COUNTY OF NEW YORK
COUNTY OF NEW YORK
I,
XXXXXXX XXXXX, a Notary Public in and for the aforesaid State and
County, hereby certify that on the 26th day of April, 2005, Xxxxxxxx X. Xxxxx personally appeared
before me and executed this Assignment and Assumption of Lease on
behalf of RIH Acquisition IN, LLC for the purposes described herein.
Given
under my hand and seal this 26th day of April, 2005.
| /s/ Xxxxxxx Xxxxx | ||||
| Notary Public | ||||
My
Commission Expires: August 10, 2006
(SEAL)
SCHEDULE I
TO
DESCRIPTION OF LEASE
| 1. | Redevelopment Project Lease by and between the City of East Chicago, Department of Redevelopment (the “City”) and Showboat Marina Partnership, an Indiana general Partnership, dated october, 25 1995 | ||
| 2. | Lease Assignment and Assumption Agreement, dated as of March 28, 1996, from Showboat Marina Partnership, as assignor, to Showboat Marina Casino Partnership, as assignee | ||
| 3. | First Amendment to Redevelopment Project Lease by and between the City and Showboat Marina Casino Partnership, an Indiana general partnership, dated as of March 28,1996 | ||
| 4. | Second Amendment to Redevelopment Project Lease dated as of January 20, 1999 between the City, the City of East Chicago, a municipal corporation of Lake County. Indiana, and Showboat Marina Casino Partnership | ||
| 5. | Acknowledgment of the Commencement Date of Redevelopment Project Lease and Notice dated March 28,1996 | ||
| RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: 2006 094333 Xxxxx Xxxxxxx Xxxxxxx Title Services of Indiana, Inc. 0000 Xxxxxxxx Xxx Xxxx Xxxxx Xxxxx 000 Xxxxxxxxxxxx, XX 00000 660002235DA |
STATE OF INDIANA LAKE COUNTY FILED FOR RECORD 2005 OCT 27 APRIL 09 XXXXXXX X. CROWN RECORDER |
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this “Agreement”) is
made as of this 25 day of October, 2006, by and between RIH
Acquisitions IN, LLC, an Indiana
limited liability company (“Assignor”) and RIH Propco IN, LLC, an
Indiana limited liability
company(“Assignee”).
RECITALS
A. Assignor intends to transfer all its right, title and interest in certain
Lease
listed on Schedule I attached hereto (the
“Transfer”) to Assignee, a newly-formed wholly
owned subsidiary of Assignor (“Propco”).
B. Assignor is a party to that certain Lease
listed on Schedule I attached hereto
(the “Lease”) and by this reference are made a
part hereof, with respect to the property
described on Schedule II attached hereto.
C. Assignor and Assignee have agreed to enter into this
Agreement providing for
the assignment, transfer and conveyance to Assignee of
Assignor’s rights, title, benefits,
privileges and interest in, to and under the Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignee and Assignor agree as follows:
1. Assignment. Assignor does hereby CONVEY, ASSIGN, TRANSFER
and
DELIVER to Assignee, and Assignee hereby accepts with effect
as of the Transfer all of
Assignor’s right, title, benefits, privileges and interest
in, to and under the Lease, including,
without limitation, all security deposits paid to the lessor.
2. Assumption. Assignee does hereby, with effect as
of the Transfer (a)
accepts the foregoing assignments, transfers and
conveyances, to the extent that such arc legally
assignable and necessary consents to assignment have been obtained, of Assignor’s rights, title,
benefits, privileges, and interest in, to and under the Lease and (b) from and
after the Transfer,
(SEAL)
assumes, undertakes and agrees to pay, perform, honor and discharge promptly when due all
obligations of tenant in accordance with the respective terms under the Lease.
3. Indiana Riverboat License. Notwithstanding any provisions to the
contrary which may be included in this Agreement, none of the rights, title and interests
herein
assigned and described shall be deemed to include Assignor’s riverboat license or any of
Assignor’s interest therein.
4. Validity. Assignor represents and warrants that (i) Assignor has not
assigned or executed any assignment of, and will not assign or execute any assignment of its
interest In, the Lease to anyone other than the Assignee, and any assignment, designation or
direction by Assignor inconsistent herewith shall be void and (ii) Assignor has not done any
act
or executed any document that impairs the rights of the Assignee to the Lease under this
Agreement.
5. Amendments. This Agreement shall not be amended except by a written
instrument making specific reference to this Agreement signed by each of the parties hereto.
6. Governing Law. This Agreement shall be governed by the laws of the State
of Indiana, without giving effect to choice of law principles thereof that would cause the
application of the Laws of any other jurisdiction.
7. Binding on Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns and representatives.
8. Headings. The subject headings or captions of the paragraphs in this
Agreement are inserted for convenience of reference only and shall not affect the
meaning,
construction or interpretation of the any provisions contained herein. All capitalized
terms
defined herein are equally applicable to both the singular and plural forms of such terms.
9. Counterparts. This Agreement may be signed in multiple counterparts, with
each counterpart having the same force and effect as if this single instrument were executed
by
each of the parties hereto and delivered (including by facsimile) to the other party.
10. Third Party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
11. Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or enforceability of the other provisions of
this
Agreement shall not be affected thereby, and there shall be deemed substituted for the
provision
at issue a valid, legal and enforceable provision as similar as possible to the provision at
issue.
12. Subsequent Action. If at any time after the date hereof Assignee or
Assignor will consider or be advised that any instruments of conveyance, assignments, filings,
assurances or any other actions that are necessary or desirable to vest, perfect or confirm
the
transfer, assignment, conveyance and delivery of the Lease to Assignee, or otherwise to carry
out
this Agreement, Assignor or Assignee, as the case may be, shall execute and deliver all
instruments of conveyance, fillings, powers of attorney, assignments and assurances and take and
-2-
do all such other actions and things as may be reasonably
requested by Assignee or Assignor, as the case may be,
in order to vest, perfect, or confirm the transfer,
conveyance and delivery of the Lease or otherwise to carry
out this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
- 3 -
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year
first above written.
| ASSIGNOR: | ||||||
| RIH ACQUISITIONS IN, LLC. | ||||||
| an Indiana limited liability company | ||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||
| Title: | CFO & Senior VP | |||||
| ASSIGNEE: | ||||||
| RIH PROPCO IN, LLC, | ||||||
| an Indiana limited liability company | ||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||
| Title: | CFO & Senior VP | |||||
This instrument was prepared by Xxxxxx X. Xxxxx, attorney at lew. I affirm, under penalties of
perjury, that I have taken reasonable care to redact each Social Security Number in this document,
unless required by law. Xxxxxx X. Xxxxx.
SIGNATURE PAGE TO ASSIGNMENT OF IN LEASE
STATE OF NY
COUNTY OF NY
COUNTY OF NY
I, Xxxxxx Xxxxx, a Notary Public in and for the aforesaid State and County, hereby certify that on the ____th day
of October, 2006, Xxxx X. Xxxxxxxxxx personally appeared before me, and executed this Assignment and Assumption of
Lease on behalf of RIH Acquisitions IN, LLC for the purposes described herein.
Given under my hand and seal this 25th day of October, 2006.
| /s/ XXXXXX XXXXX
|
||||
(SEAL) |
||||
| Notary Public of NY | ||||
| Resident of NY County |
My Commission Expires: [ILLEGIBLE]
STATE OF NY
COUNTY OF NY
COUNTY OF NY
I, Xxxxxx Xxxxx, a Notary Public in and for the aforesaid State and County, hereby certify that on
the ____th day of October, 2006, Xxxx X. Xxxxxxxxxx personally appeared before me, and executed this
Assignment and Assumption of Lease on behalf of RIH Propco IN, LLC for the purposes described
herein.
Given under my hand and seal this 25th day of October, 2006
| /s/ XXXXXX XXXXX
|
||||
(SEAL) |
||||
| Notary Public of NY | ||||
| Resident of NY County |
My Commission Expires: [ILLEGIBLE]
SCHEDULE I TO ASSIGNMENT AND ASSUMPTION OF LEASE
DESCRIPTION OF LEASE
| • | Redevelopment Project Lease by and between the City of East Chicago, Indiana and Showboat Marina Partnership, dated October 19, 1995. | |
| • | Lease Assignment and Assumption Agreement from Showboat Marina Partnership, as assignor, to Showboat Marina Casino Partnership, as assignee, dated as of March 28, 1996. | |
| • | First Amendment to Redevelopment Project Lease by and between the City of East Chicago, Indiana and Showboat Marins Casino as assignee, dated as of March 28, 1996. | |
| • | Acknowledgement of the Commencement Date of Redevelopment Project Lease and Notice dated March 28, 1996. | |
| • | Second Amendment to Redevelopment Project Lease by and between the City of East Chicago, Indiana and Showboat Marina Casino Partnership, dated as of January 20, 1999. | |
| • | Assignment and Assumption of lease dated as of April 26, 2005 by and between showboat Marina Casino Partnership and RIH Acquisitions IN, LLC. | |
| • | 1. Lease Agreement dated June 19, 2006 between RIH Acquisitions IN, LLC and Xxxxxx Pizza Co, Inc., dba Xxxxxx Pizza, an Indiana Corporation. |
-2-
SCHEDULE II TO ASSIGNMENT AND ASSUMPTION OF LEASE
LEGAL DESCRIPTION
(See attached)
Legal Description
Part of Fractional Section 15 and Fractional Section 22, Township 37 North, Range 9 West of the
Second Principal Meridian, in Lake County, Indiana, more particularly described as follows:
Commencing at point “G” which point is on the Southeasterly
bulkhead line (established by U.S.
Government permits of March 27, 1908, October 15, 1929 and July 5, 1932), and the Southwesterly
right of way line of Aldis Avenue extended, this point being established by a “T” rail set in
concrete, thence along the Southwesterly line of Aldis Avenue, South 46 degrees 46 minutes 06
seconds East, 1376.00 feet to point “R” on plat of survey prepared by the County Surveyor of Lake
County, Indiana, and dated July 3, 1959 which is the point of beginning, said point being at the
intersection of the centerline of vacated Lake Place and the Southwesterly right of way line of
Aldis Avenue, thence along the centerline of vacated Lake Place extended, North 43 degrees 15
minutes 00 seconds East, a distance of 66.30 feet to a point “O” on the Northeasterly right of way
line of Aldis Avenue, thence North 35 degrees 35 minutes 33 seconds East 134.74 feet (Measured
North 34 degrees 53 minutes 04 seconds East, 134.78 feet) to a point, thence North 87 degrees 45 minutes 17 seconds East, 79:47 feet to a point, thence North 45
degrees 33 minutes 40 seconds East, 100.50 feet to a point; thence North 27 degrees 26 minutes 34 seconds East, 102.39 feet to a point, thence North 35 degrees 50 minutes 46
seconds East, 100.34 feet to a point; thence North 43 degrees 17 minutes 00 seconds East,
Lake county, Indiana
([ILLEGIBLE] Casino)
([ILLEGIBLE] Casino)
100.18
feet to a point; thence North 73 degrees 22 minutes 05 seconds East, 92.36 feet to a
point; thence South 88 degrees 52 minutes 08 seconds East, 85.40 feet to a point; thence South 45
degrees 50 minutes 45 seconds East, 106.63 feet to a point; thence South 28 degrees 53 minutes 00
seconds East, 115.60 feet to a point; thence South 29 degrees 55 minutes 11 seconds East, 43.65
feet; thence North 72 degrees 41 minutes 04 seconds East, along the North edge of a dock, 63.28
feet; thence North 17 degrees 40 minutes 39 seconds West, 68.50 feet; thence North 73 degrees 08
minutes 53 seconds East, 13.57 feet; thence South 17 degrees 40 minutes 39 seconds East, along the
East edge of the dock, 576.84 feet; thence South 72 degrees 59
minutes 54 seconds West, 13.46 feet;
thence North 17 degrees 40 minutes 39 seconds West, 47.95 feet; thence South 74 degrees 17 minutes
22 seconds West, along the South edge of the dock, 61.64 feet; thence South 09 degrees 56 minutes
52 seconds East, 57.80 feet; thence South 04 degrees 06 minutes 11 seconds East, 100.97 feet to a
point; thence South 13 degrees 30 minutes 52 seconds West, 101.43 feet to a point; thence South 12
degrees 57 minutes 25 seconds West, 101.27 feet to a point; thence South 28 degrees 36 minutes 02
seconds East, 100.89 feet to a point; thence South 36 degrees 52 minutes 10 seconds East, 100.32
feet to a point; thence South 44 degrees 18 minutes 16 seconds East, 100.12 feet to a point; thence
South 63 degrees 14 minutes 35 seconds East, 107.70 feet to a point; thence South 83 degrees 56
minutes 42 seconds East, 90.42 feet to a point; thence North 03 degrees 16 minutes 06 seconds
East, 100.05 feet to a point; thence North 36 degrees 03 minutes 33
seconds East, 38.83 feet to a
point; thence South 30 degrees 27 minutes 20 seconds East, 37.74 feet to a point; thence South 03
degrees 35 minutes 32 seconds East, 100.40 feet to a point; thence South 01 degrees 33 minutes 00
seconds West, 100 feet to a point; thence South 02 degrees 24 minutes 49 seconds West, 112.44 feet
to a point; thence South 06 degrees 04 minutes 10 seconds East, 30.35 feet to a point; thence South
08 degrees 43 minutes 41 seconds East, 182.27 feet to a point on the Southwesterly line of Aldis
Avenue extended; thence Southeasterly along the Southwesterly line of Aldis Avenue, South 46
degrees 46 minutes 06 seconds East, 15.24 feet to a point; thence South 01 degrees 46 minutes 06
seconds East, 325.27 feet to a point “C”, on the
Northeasterly right of way line of vacated
Baltimore Street; thence Northwesterly along the Northeasterly right of way line of vacated
Xxxxxxxxx Xxxxxx, Xxxxx 00 degrees 46 minutes 06 seconds West, 1285.87 feet to a point; thence
South 43 degrees 13 minutes 54 seconds West, 15.90 feet to a point; thence North 55 degrees 51
minutes 36 seconds West, 465.73 feet to a point; thence North 43 degrees 15 minutes 00 seconds
East, 319.49 feet to a point on the Southwesterly line of Aldis Avenue extended; thence
Northwesterly along the Southwesterly line of Aldis Avenue extended, North 46 degrees 46 minutes 06
seconds West, 330.00 feet to the point of beginning.
MEMORANDUM OF MERGER OF LEASEHOLD INTERESTS
This MEMORANDUM OF MERGER
OF LEASEHOLD INTERESTS (the “Memorandum”) is made effective as of
the 18th day of September, 2007 (the “Effective Date”) by and between RIH Acquisitions IN, LLC, an
Indiana limited liability company (“RIH Acquisitions”) and the City of East Chicago, Indiana,
Department of Redevelopment, existing pursuant to Indiana Code 36-7-14 (the “City”).
WITNESSETH:
WHEREAS, RIH Propco IN, LLC, an Indiana limited liability company and wholly owned subsidiary
of RIH Acquisitions (“RIH Propco”) has a leasehold interest in certain real property situated in
Lake County, Indiana, more particularly described in the Exhibit A attached hereto and made
a part hereof (the “Real Estate”) as evidenced by that certain Memorandum of Redevelopment Project
Lease, by and between the City and Showboat Marina Partnership dated
October 25, 1995 and recorded
November 10, 1995, as Document Number 95068690; assigned by that certain Lease Assignment and
Assumption Agreement between Showboat Marina Partnership, as Assignor, and Showboat Marina Casino
Partnership, as Assignee, dated March 28, 1996 and recorded
March 29, 1996, as Document Number
96020394; as amended by that certain First Amendment to Redevelopment Project Lease between the
City and Showboat Marina Casino Partnership, dated March 28,
1996 and recorded March 29, 1996, as
Document Number 96020395; as further subject to that certain Acknowledgment of Commencement Date of
Redevelopment Project Lease and Notice of Election to Take Possession dated March 28, 1996 and
recorded March 29, 1996, as Document Number 96020396; as further amended by that certain Second
Amendment of Redevelopment Project Lease between the City and Showboat Marina Casino Partnership,
dated January 20, 1999 and recorded March 24, 1999, as Document Number 99025949; as further assigned
by a Lease Assignment and Assumption Agreement between Showboat Marina Casino Partnership, as
Assignor and RIH Acquisitions, as Assignee, dated April 26, 2005,
and recorded April 28, 2005 as
Document Number 2005-033880; and as finally assigned to RIH Propco by assignment dated October
25, 2006, and recorded October 27, 2006, as Instrument 2006-094333, all of record in the office of
the Recorder of Lake County, Indiana, and collectively hereinafter referred to as the “Lease”.
WHEREAS,
RIH Acquisitions has a sublease hold interest in the Real Estate as evidenced by that
certain Memorandum of Lease by and between RIH Propco, as sublessor, and RIH Acquisitions, as
sublessee, dated October 25, 2006 and recorded as Instrument 2006094334 in the office of the
Recorder of Lake County, Indiana (the “Sublease”).
WHEREAS, pursuant to that certain Articles of Merger of RIH Propco IN, LLC with and into RIH
Acquisitions IN, LLC effective as of the Effective Date hereof (the “Articles of Merger”), RIH
Propco and RIH Acquisitions have been merged into a single entity, with RIH Acquisitions being the
sole surviving entity (the “Merger”);
WHEREAS, as a result of the Merger, the leasehold interests of RIH Propco and RIH
Acquisitions, respectively, have automatically been merged into a single leasehold interest in
RIH Acquisitions under the Lease;
WHEREAS, RIH Acquisitions and the City now wish to enter into and record this Memorandum
acknowledging of record such merger of leasehold interests and to recognize RIH Acquisitions as
lessor pursuant to the Lease;
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by each of the parties, the parties
agree as follows:
1. Effective as of the effective date of the Articles of Merger, RIH Acquisitions shall,
without any further action on the part of any party hereto or to the Lease, be deemed the lessee
under the Lease, with this Memorandum serving as the City’s consent to the same to the extent any
such consent is required by law or under the terms of the Lease.
2. This Memorandum was prepared for recording pursuant to Indiana Code § 36-2-11-20 to put all
persons on notice of the above-noted merger of interests and the rights and obligations of the
parties under the Lease.
3. This Memorandum may be executed in a number of identical counterparts. If so executed, each
of such counterparts is to be deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Memorandum, it shall not be
necessary to produce or account for more than one such counterpart.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have caused this Memorandum to be executed and delivered
by their duly authorized representatives as of the Effective Date.
RIH ACQUISITIONS:
|
RIH ACQUISITIONS IN, LLC, | |||
| an Indiana limited liability company | ||||
| By: Xxxxx X. Xxxxx
|
||||
| Printed: Xxxxx X. Xxxxx | ||||
| Title: Vice President | ||||
| CITY: | THE CITY OF EAST CHICAGO, INDIANA DEPARTMENT OF REDEVELOPMENT | |||||
| By: | ||||||
| Printed: | ||||||
| Title: | ||||||
| Attest: | ||||||
| Printed: | ||||||
| Title: | ||||||
ACKNOWLEDGMENT
STATE OF Nevada
|
) | |||||
| ) | SS: | |||||
COUNTY OF Xxxxx
|
) |
Before me the undersigned, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxx, known to me to be the person who, as the
Vice President of RIH Acquisitions IN, LLC, an Indiana limited liability company,
signed the same, and who acknowledged the execution of the foregoing for and on behalf of said
limited liability company as such officer, and who, having been duly sworn, stated that the
representations therein contained are true.
WITNESS
MY HAND and Notarial Seal this 18th day of Sept., 2007.
My Commission Expires:
|
Xxxxxxx X. Xxxxxxx
|
|||
Aug. 11, 2009 |
||||
My County of Residence:
|
Xxxxxxx X. Xxxxxxx
|
|||
Xxxxx
County |
||||
| NOTARY: AFFIX SEAL | ||||
| (SEAL) |
IN WITNESS WHEREOF, the undersigned have caused this Memorandum to be executed and
delivered by their duly authorized representatives as of the
Effective Date.
| RIH ACQUISITIONS: | RIH ACQUISITIONS IN, LLC, | |||||
| an Indiana limited liability company | ||||||
| By: | ||||||
| Printed: | ||||||
| Title: | ||||||
CITY:
|
THE CITY OF EAST CHICAGO, INDIANA DEPARTMENT OF REDEVELOPMENT |
||||
| By: | /s/ Xxxx X. Xxxxx |
||||
| Printed: | Xxxx X. Xxxxx | ||||
| Title: | Ex. Director | ||||
| Attest: | /s/ Xxxxxx X. Xxxxxxxxx |
||||
| Printed: | Xxxxxx X. Xxxxxxxxx | ||||
| Title: | Counsel | ||||
ACKNOWLEDGMENT
STATE OF INDIANA
|
) | ||||
| ) | SS: | ||||
COUNTY OF LAKE
|
) |
Before me the undersigned, a Notary Public in and for said County and State personally
appeared Xxxx Xxxxx and Xxxxxx X. Xxxxxxxxx known to me to
be the persons who, as Executive Director and [ILLEGIBLE],
respectively, of the City of East Chicago, Indiana Department of Redevelopment, each signed the
same, and who acknowledged the execution of the foregoing for and on
behalf of said entity as
such officer, and who, having been duly sworn, stated that the
representations therein: contained
are true.
WITNESS
MY HAND and Notarial Seal this 17 day of Sept., 2007.
My
Commission Expires: June 1, 2009 |
Xxxxxxx Xxxxxxxxx
|
|||
My County of Residence:
|
Xxxxxxx Xxxxxxxxx
|
|||
LAKE |
||||
| NOTARY: AFFIX SEAL |
This
instrument prepared by Xxxxx Xx Xxxxxxx, Esq., Xxxxxxx XxXxxx LLP,
2700 Market Tower,
00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, (000) 000-0000. I affirm under the
penalties for perjury, that I have taken reasonable care to redact each Social Security
Number in this document, unless required by law.
Xxxxx Xx Xxxxxxx
EXHIBIT A
LEGAL DESCRIPTION
Part of Fractional Section 22 and Fractional Section 15, Township 39 North, Range 9 west of
the Second Principal Meridian, in Lake County, Indiana, more particularly described as follows:
Commencing at point “G” on the Southeasterly bulkhead line (established by U.S. Government permits
of March 27, 1908, October 15, 1925 and July 5, 1932), and the Southwesterly right of way line of
Aldis Avenue extended, thence South 46º 46’ 06” East (assumed Record Bearing) along the
Southwesterly line of Aldis Avenue, 1376.00 feet to a Iron Pipe on the centerline of vacated Lake
Place and the Point of Beginning; thence North 43º 15’ 00’ East, along the centerline of vacated
Lake Place, 66.30 feet to a Iron Pipe on the Northeasterly right-of-way line of Aldis Avenue;
thence North 34º 53’ 04’ East, 134.74 feet; thence North 87º 48’ 17” East, 79.47 feet; thence North
45º 33’ 40” East, 100.50 feet; thence North 27º 26’ 34” East a distance of 102.39 feet; thence
North 35º 50’ 46” East, 100.24 feet; thence North 43º 17’ 00” East, 100.18 feet; thence North 73º
22’ 05” East, 92.36 feet; thence South 88º 52’ 08” East, 85.40 feet; thence South 45º 50’ 45” East,
106.63 feet; thence South 28º 53’ 00” East, 115.60 feet; thence South 29º 55’ 11” East, 43.65 feet;
thence North 72º 41’ 04” East, along the North edge of a dock, 63.28 feet; thence North 17º 40’ 39”
West, 68.50 feet; thence North 73º 08’ 53” East, 13.57 feet; thence South 17º 40’ 39” East, along
the East edge of the dock, 576.84 feet; thence South 72º 59’ 54” West, 13.46 feet; thence North 17º
40’ 39” West, 47.95 feet; thence South 74º 17’ 22” West, along the South edge of the dock, 61.64
feet; thence South 09º 56’ 52” East, 57.80 feet; thence South 04º 06’ 11’ East, 100.97 feet; thence
South 13º 30’ 52” West, 101.43 feet; thence South 12º 57’ 25” West, 101.27 feet; thence South 28º
36’ 02” East, 100.89 feet; thence South 36º 52’ 10” East, 100.32 feet; thence South 44º 18’ 16”
East, 100.12 feet; thence South 63º 14’ 35” East, 107.70 feet; thence South 83º 56’ 42” East, 90.42
feet, thence North 03º 16’ 06” East, 100.05 feet; thence North 36º 03’ 33” East, 38.83 feet; thence
South 30º 27’ 20” East, 37.74 feet; thence South 03º 35’ 32” East, 100.40 feet; thence South 01º
33’ 00” West, 100.00 feet; thence South 02º 24’ 49” West, 112.44 feet, thence South 06º 04’ 10”
East, 58.35 feet; thence South 08º 43’ 41” East, 182.13 feet to the Southwesterly line of Aldis
Avenue extended, thence South 46º 46’ 06” East, 15.24 feet to the East line of said Fractional
Section 22; thence South 01º 46’ 06” East, along said East line, 325.27 feet, to a Monument found
at Point “C” at the intersection of the East line of said Fractional Section 22 and the
Northeasterly line of vacated Baltimore Avenue extended; thence North 46º 46’ 06” West, along the
Northeasterly line of vacated Baltimore Avenue extended, 1284.86 feet; thence South 43º 13’ 54”
West, 465.73 feet; thence North 43º 15’ 00” East. 319.49 feet, to the Southwesterly line of Aldis
Avenue extended; thence North 46º 46’ 06” West, along said Southwesterly line, 330.00 feet to the
Point of Beginning.
Containing 27.942 acres, more or less.
