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XXXXX XX XXXXXXXXX X
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LEASE
THIS AGREEMENT OF LEASE (hereinafter "the Lease" or "this Lease") made this
______ day of ______________________1995, between PORT RESOURCES, INC., a
Louisiana corporation, and CRU, INC., a Louisiana corporation, (hereinafter
collectively, "LANDLORD"), and ST. XXXXXXX GAMING COMPANY, INC., a Louisiana
corporation, (hereinafter, "TENANT").
WITNESSETH
1. LEASED PROPERTY. LANDLORD leases to TENANT and TENANT leases from
LANDLORD the following described property with all improvements and
appurtenances thereto located in the Parish of Calcasieu and State of Louisiana
(hereinafter sometimes referred to as "Leased Property"):
That certain tract or parcel of land described as Block 22,
less and except the North 40.00 feet thereof; Block 30, less
and except a 40.00 foot by 396.00 foot strip on the North side
thereof, belonging to Xxxx Corporation (formerly Xxxxxxxxx
Alkali Works Inc.); Block 21 and Block 29 of the Old Townsite
of Westlake, and a 60.00 foot right- of-way, known as Xxxxx
Avenue, all lying within Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 9
West, Calcasieu Parish, Louisiana, being more particularly
described as follows to- wit:
Commencing at the Northwest Corner of Block 22 of the Old
Townsite of Westlake in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0
Xxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxx;
Thence South 00 Degrees 14' 51" West, along the West line of
Block 22 and West line of said Section 36, for a distance of
40.00 feet, the point of beginning of herein described tract;
Thence South 88 Degrees 50' 45" East, 40.00 feet South of and
parallel with the North line of said Block 22 and Block 30,
for a distance of 396.00 feet;
Thence North 00 Degrees 14' 51" East, parallel with the West
line of Block 22, for a distance of 40.00 feet, to the North
line of Block 30 of the Old Townsite of Westlake;
Thence South 88 Degrees 50' 45" East, along the North line of
said Block 30, for a distance of 159.12 feet to the West bank
of the Calcasieu River:
Thence Southerly, following the meander of the top west bank
or right descending bank of the Calcasieu River, for a
distance of 506.68 feet more or less to the South line of
Block 29 of the Old Townsite of Westlake;
Thence North 88 Degrees 50' 45" West, along the South line of
Blocks 29 and 21 of the Old Townsite of Westlake for a
distance of 517.50 feet to the Southwest Corner of said Block
21 and West line of the aforesaid Section 36;
Thence North 00 Degrees 14' 51" East, along the West line of
Blocks 21 and 22 for a distance of 451.40 feet to the point of
commencement;
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Herein described tract is subject to a 60.00 foot road
right-of-way, known as Xxxxx Avenue, lying East of Westlake
Avenue between Blocks 22, 30 and 21, 29 of the Old Townsite of
Westlake.
Herein described tract containing 5.75 acres, more or less,
and as depicted as Tract 1 on the attached plat attached
hereto as "Exhibit To Lease".
The Leased Property generally encompasses a portion of the area known as the
Xxxxxx Shellyard on the west bank of the Calcasieu River south of Interstate
10. Notwithstanding the information depicted on the attached Exhibit To Lease,
TENANT confirms it has inspected the Leased Property and its apparent
boundaries and is satisfied that its size, boundaries, encroachments, if any,
and configuration are adequate for the uses intended under this Lease and
hereby accepts the Leased Property in the condition presented.
2. TERM. The initial term of this Lease shall be five (5) years
(hereinafter, the "initial term"), to commence _____________, 1995. TENANT
shall have the option to renew this Lease for three (3) additional five (5)
year terms (hereinafter, the "renewal terms") under the same terms and
conditions of this Lease and as further provided below. TENANT shall notify
LANDLORD of its intention to exercise its option to renew at least six (6)
months prior to the expiration of the initial term and any renewal term of this
Lease.
Notwithstanding the above provision for the term of this lease, this
lease shall only be in effect as long as TENANT also leases additional property
of LANDLORD located immediately south of this Leased Property. If for any
reason, TENANT's lease on property of LANDLORD located immediately south of
this Leased Property should terminate, this Lease shall also simultaneously
terminate without further action by LANDLORD. Any default in the lease on
property of LANDLORD immediately south of this Leased Property shall also
constitute a default of this Lease.
3. RENTAL.
(A) Initial Term. TENANT covenants and agrees to pay to
LANDLORD annual rent of One Hundred Thousand and 00/100 Dollars ($100,000.00),
payable monthly in advance without demand, deduction, abatement or set off on
the first day of each and every month of said initial term in two separate,
equal payments of Four Thousand One Hundred Sixty-six and 66/100 Dollars
($4,166.66) each payable to Port Resources, Inc. and to CRU, Inc.
(B) First Renewal Term. The rent during the first renewal term shall
increase over the rent during the initial term in annual increments of five
(5%) per cent per annum or the percentage increase in the average consumer
price index for Calcasieu Parish, Louisiana for the previous twelve (12) month
period, whichever is higher, computed on the total rent due for the prior
twelve (12) month rental period.
(C) Second and Third Renewal Term. During the second and third
renewal terms, the Rent shall be not less than the rent for the last year of
the preceding term subject to the following adjustments:
In the event TENANT exercises its option to extend the term of this
Lease, Rent shall be increased as of the commencement date of the Renewal term
(the "Rent Adjustment Date") as follows:
(a) Commencing at the beginning of the month which is three
(3) months prior to the Rent Adjustment Date, Landlord and Tenant
shall attempt to agree upon an increase in Rent for the Leased
Property for the Renewal term, such Rent to equal one hundred percent
(100%) of rent paid by other riverboat gaming operators in Louisiana
and Mississippi for comparable property usages. If the parties are
unable to agree upon the Rent for the Renewal term prior to the end of
such month, then within ten (10) days thereafter each party, at its
own cost and by giving notice to the other party, shall appoint a real
estate appraiser with at least five (5) years full-time commercial
real estate appraisal experience in the area in which the
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Leased Property is located to appraise and set Rent for the Renewal
term. If a party does not appoint an appraiser within ten (10) days
after the other party has given notices of the name of its appraiser,
the single appraiser appointed shall be the sole appraiser and shall
set the Rent for the Renewal term. If each party shall have so
appointed an appraiser, the two appraisers shall meet promptly and
attempt to set the Rent for the Renewal term. If the two appraisers
are unable to agree within thirty (30) days after the second appraiser
has been appointed, they shall attempt to select a third appraiser
meeting the qualifications herein stated within ten (10) days after
the last day the two appraisers are given to set the Rent. If the two
appraisers are unable to agree on the third appraiser within such ten
(10) days period, either of the parties to this Lease, by giving ten
(10) days notice to the other party, may apply to the President of the
Louisiana Real Estate Commission for the selection of a third
appraiser meeting the qualifications stated in this paragraph. Each
of the parties shall bear one-half ( 1/2) of the cost of appointing
the third appraiser and of paying the third appraiser's fee. The
third appraiser, however selected, shall be a person who has not
previously acted in any capacity for either party.
(b) Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers shall set the Rent for the
Renewal term. If a majority of the appraisers are unable to set the
Rent within the stipulated period of time, the three appraisals shall
be added together and their total divided by three (3). The resulting
quotient shall be the annual Rent for the Leased Property during the
Renewal term. If, however, the low appraisal and/or the high
appraisal is/are more that five percent (5%) lower and/or higher than
the middle appraisal, the low appraisal and/or the high appraisal
shall be disregarded. If only one (1) appraisal is disregarded, the
remaining two (2) appraisals shall be added together and their total
divided by two (2), and the resulting quotient shall be the Rent for
the Leased Property during the Renewal term. If both the low
appraisal and the high appraisal are disregarded as stated in this
paragraph. The middle appraisal shall be the Rent for the Leased
Property during the Renewal term.
(c) After the Rent for the Renewal term has been set, the
appraisers shall immediately notify the parties hereto in writing by
certified mail, return receipt requested.
(D) Proration. Rent for any period of occupancy of less than one
month shall be prorated in proportion to the number of days of occupancy in
that month.
(E) Payment. All rent shall be paid to Port Resources, Inc. at
Xxxxx 0000, XX Xxxxx, Xxx Xxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 and to
CRU, Inc. at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000 or at
such other address or addresses as LANDLORD, or either of them, may from time
to time designate in writing.
4. USE. The Leased Property shall be used and occupied as a riverboat gaming
facility and any other lawful purpose relating thereto and for no other purpose
without the prior written consent of LANDLORD. The riverboat gaming facility
shall be constructed and operated in accordance with the laws and regulations
of the State of Louisiana and any other political subdivision having
jurisdiction.
5. ZONING. LANDLORD does not warrant that any covenant, restriction,
easement, zoning and other governmental laws or regulation in effect as of the
date hereof permit the use of the Leased Property for docking or operation of a
riverboat gaming facility and uses incidental thereto.
6. SERVICES. LANDLORD shall furnish no services. TENANT shall be
responsible for and shall pay for all utilities including any sewerage or
drainage charges.
7. CONDITION OF LEASED PROPERTY. TENANT acknowledges that the Leased Property
was previously used as a stone and aggregate off loading facility and a
storage, sale and distribution yard for stone and aggregate. LANDLORD is
relieved of any obligations of repair including but not limited to those
obligations found in Section 2, Chapter 2 of Title IX Of Lease, of the
Louisiana Civil Code. TENANT undertakes all of these obligations of repair and
maintenance and
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otherwise assumes all obligations and responsibility for the condition of the
Leased Property and indemnifies and holds LANDLORD harmless for any claim,
demand or damage arising occasioned to anyone from said condition.
8. ALTERATIONS AND IMPROVEMENTS.
(A) TENANT may, from time to time during this Lease or any renewal or
extension thereof, at its own expense make, install or construct such
alterations and improvements, structural or otherwise, and install such
identifications, signs, furniture, fixtures and equipment in or on the Leased
Property as will, in the judgment of TENANT, adapt the same to the purposes of
its business. However, no underground storage tanks shall be installed. Any
dredging, excavations, bulkheads or alterations to the shoreline or
construction of docking facilities or marinas shall require the prior written
consent of LANDLORD. LANDLORD's consent shall not be unreasonably withheld or
delayed after TENANT has fully disclosed such plans to LANDLORD.
(B) All improvements and alterations made by TENANT (other than
TENANT's personal property and trade fixtures) shall become, upon the
expiration or termination of this Lease, the property of LANDLORD and shall
remain on the Leased Property. Not later than the last day of the term or upon
termination of this Lease and provided TENANT is not in default, TENANT will
remove all of its personal property, equipment, trade fixtures and signs and
repair all damage resulting from such removal.
9. COVENANT AGAINST LIENS. At its cost and expense (whether by payment,
by filing the necessary bond, by order of a court of competent jurisdiction or
otherwise), TENANT shall promptly remove and discharge of record all liens,
encumbrances and charges upon the Leased Property, or TENANT's Leasehold
interest therein, which arise as a result of any act or omission by TENANT,
including all such liens, encumbrances and charges that either arise out of the
possession, use, occupancy, maintenance, repair or rebuilding of the Leased
Property or arise by reason of labor or materials furnished or claimed to have
been furnished to TENANT or otherwise. Prior to commencement of any
construction activities, TENANT shall provide a surety bond or bonds in a
company or companies and in a form satisfactory to LANDLORD in an aggregate
amount of not less than one hundred fifty (150%) percent of the contract
amount, guaranteeing TENANT's performance under the terms of this covenant and
to protect and indemnify LANDLORD against any mechanic's liens, materialman's
liens, architect's lien, builder's lien or any other lien arising out of any
construction or repair activities conducted on the Leased Property; provided,
however, that TENANT may contest the validity of any lien or claim having first
posted the bond required hereinabove to insure that, upon final determination
of such claim, it shall immediately pay any judgment rendered against it with
all proper costs and charges, and have such lien released without cost to
LANDLORD.
10. COVENANT AGAINST MORTGAGE. TENANT shall not grant any mortgage or
otherwise encumber the Leased Property without the prior written consent of
LANDLORD.
11. SUBORDINATION. LANDLORD represents and warrants to TENANT that, upon
execution and delivery of the Lease, the Leased Property will be free and clear
of all mortgages, deeds of trust and other similar instruments encumbering the
Leased Property. TENANT will accept the Lease subject to any mortgages, deeds
of trust and other similar instruments hereinafter encumbering the Leased
Property ("future mortgages") provided that the holder of any such future
mortgage agrees in such future mortgage or separate instrument not to disturb
TENANT's occupancy of the Leased Property so long as TENANT performs its
obligations under the Lease on the condition that TENANT, when requested by the
future mortgagee, shall execute an attornment agreement to the future mortgagee
should the future mortgagee succeed to the rights of LANDLORD under the Lease.
12. SUBLETTING AND ASSIGNMENT. A. During the initial term of this Lease,
TENANT may not, without the prior written consent of LANDLORD assign this Lease
or sublet the whole or any part of the Leased Property. For purposes of this
paragraph a conveyance or sale, regardless of how structured, of fifty-one
percent (51%) or greater of TENANT's interest in the riverboat gaming operation
conducted or to be conducted on the Leased Property shall be considered as an
assignment or subletting requiring the consent of LANDLORD. LANDLORD
specifically
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reserves its right to withhold consent. LANDLORD hereby consent to an
assignment of not more than fifty percent (50%) of TENANT's stock in the
riverboat gaming operation to be conducted on the Leased Property to Casino
America, Inc. or its affiliated entity.
(B.) During any Renewal term of this Lease TENANT may not, without
the prior written consent of LANDLORD, assign the Lease or sublet the whole or
any part of the Leased Property. Notwithstanding the foregoing, LANDLORD shall
not unreasonably withhold its consent to any assignment of subletting of the
Leased Property during any Renewal term if:
(a) At the time of the proposed assignment or sublease,
the assignee or sublessee is financially capable of operating a casino
and/or riverboat gaming facility of the type located at the Leased
Property;
(b) The proposed assignee or sublessee has casino gaming
operating experience comparable to, or greater than, TENANT's
experience, or has contracted with a casino and/or riverboat gaming
operator with experience comparable to, or greater than, TENANT's;
(c) The proposed use of the Leased Property by such
proposed assignee or sublessee is as a riverboat (or dockside) gaming
facility site of a similar type and quality of TENANT's use under the
terms of this Lease;
(d) The proposed assignee has all requisite licenses in
the State of Louisiana to operate a casino and/or riverboat gaming
facility, the proposed assignee is not under current investigation or
has not been suspended or declined a similar license, in another
state, and is of suitable moral character reasonably satisfactory to
LANDLORD; and
(e) The proposed assignee or sublessee executes an
agreement in form and substance satisfactory to LANDLORD assuming and
agreeing to perform all obligations of TENANT under this Lease;
(f) The TENANT, and/or present party TENANT, shall remain
responsible and liable for all of the obligations of TENANT under the
Lease.
(C) Each and every assignee, whether as assignee or as successor in
interest of any assignee of TENANT, shall, immediately be and become and remain
liable for the payment of the Rent and other charges payable under this Lease,
and for the due performance of all the covenants, agreements, terms and
provisions of this lease, on TENANT's part to be performed, and each and every
provision of this Lease applicable to TENANT prior to such assignment shall
also apply to and bind every such assignee with the same force and effect as
though such assignee were the party named originally as TENANT in the Lease.
13. EMINENT DOMAIN.
(A) If all or part of the Leased Property or any improvements thereon
be taken by right of eminent domain, this Lease shall terminate as to the
property so taken and the rent and all other charges which are TENANT's
responsibility shall be proportionately reduced during the unexpired portion
of this Lease, effective as of the date of taking. If as a result of the
taking, the Leased Property is no longer suitable by reason of its resulting
size, shape or configuration for the purposes of this Lease, this Lease shall
terminate as to all of the Leased Property.
(B) TENANT shall only be entitled to share in the compensation awarded
expressly for the loss of its business and improvements. LANDLORD shall be
entitled to all other compensation. TENANT shall not assert or be entitled to
any Leasehold advantage.
14. DEFAULT.
(A) If TENANT defaults in the performance of any of the covenants or
conditions on its part to be performed, LANDLORD may give TENANT written notice
of such default and if TENANT does not cure such default within twenty (20)
days after receipt of such notice (or, if such default is of such a nature that
it cannot be cured within the twenty (20) days, if TENANT does not
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commence such cure within said twenty (20) day period and thereafter proceed
with diligence to cure the default) or if TENANT enters into any transaction or
series of transactions in which any or substantially all of TENANT's assets are
disposed of, or if TENANT is adjudicated bankrupt, or a receiver of its
property is appointed, TENANT shall be in breach of this Lease and LANDLORD may
at its option elect either of the following remedies:
(I) LANDLORD may terminate this Lease on a date not less than
five (5) days after TENANT's receipt of written notice of such termination, and
on the date specified in said notice, this Lease shall terminate, and TENANT
shall quit and surrender the Leased Property to LANDLORD. In the event of such
termination, LANDLORD shall be entitled to damages equal to any sums owed and
unpaid as of the date of such default and TENANT shall also remain liable for
the annual rental to become due during the balance of the Lease term, the same
to be paid by TENANT to LANDLORD on the regular days stipulated for the payment
of rent; provided, however that LANDLORD shall be obligated to use commercially
reasonable efforts to relet the Leased Property, and if the Leased Property is
relet in whole or in part, TENANT shall be entitled to a credit in the net
amount of any rental payments received by LANDLORD as a result of such
reletting (after deducting reasonable expenses for reletting, including any
necessary costs of repair of the Leased Property). Further, in the event of
termination of this Lease as aforesaid, LANDLORD shall have the right to remove
therefrom any part of TENANT's personal property, equipment and trade fixtures
located therein and place the same in storage at the expense of TENANT; or
(ii) LANDLORD may cure such breach by performing the
obligation(s) of TENANT giving rise to the default and, in such event, the
reasonable amount of all expenses thereby incurred by LANDLORD shall be deemed
payable by TENANT with the next monthly installment(s) of rent.
(iii) The full amount of the cost and expense incurred by
LANDLORD, together with the amount of any attorney's fees in instituting,
prosecuting or defending any action or proceeding by reason of any default of
TENANT hereunder, shall be paid by TENANT to LANDLORD with interest at the
maximum permissible legal rate thereon.
15. LANDLORD'S RIGHT OF ENTRY.
(A) LANDLORD has the right to enter the Leased Property at any
reasonable time for the purpose of inspection or to confirm compliance by
TENANT with the Lease or to perform other authorized acts; provided, however,
that LANDLORD shall not unduly interfere with the business of TENANT on the
Leased Property.
(B) LANDLORD may show the Leased Property to prospective purchasers
and mortgagees, and, during the sixty (60) days prior to expiration of this
Lease or applicable renewal or extension period to prospective tenants.
16. TAXES. LANDLORD shall pay all real estate taxes on the unimproved
value of the Leased Property, however, LANDLORD shall never pay more than the
amount of said taxes at the time of entering this Lease. TENANT shall pay that
portion of the real estate taxes on the unimproved value of the Leased Property
not paid by LANDLORD. TENANT shall pay any special assessments, including
paving, drainage or other assessments, assessed or payable during the term of
this Lease, or any renewal periods, levied upon the Leased Property. TENANT
shall pay any and all taxes on the buildings, improvements, alterations or
fixtures thereon, including TENANT's personal property or trade fixtures.
TENANT shall have the right to contest by appropriate legal proceedings,
diligently conducted in good faith, the validity or amount of any tax,
assessment or utility charge provided no civil or criminal penalty be incurred
by LANDLORD and no lien be imposed upon the Leased Property.
17. INSURANCE.
(A) Liability Insurance. TENANT, at its expense, shall obtain and
keep in force during the term of this Lease, for the protection of TENANT,
LANDLORD and LANDLORD's agents and employees, as their interest may appear
Commercial General Liability Insurance with limits of not less than
$50,000,000.00 combined single limit per occurrence with an insurance
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company reasonably acceptable to LANDLORD. LANDLORD shall be named as an
additional named insured under such policy or policies and TENANT shall supply
to LANDLORD evidence of such insurance.
(B) Property Insurance. TENANT, at its expense, shall obtain and keep
in force during the term of this Lease a policy or policies of insurance
covering loss or damage to the Leased Property, in the amount of the full
replacement value of all improvements thereof, providing protection against all
perils included within the classifications of fire, flood, extended coverage,
vandalism, and malicious mischief.
18. INDEMNITY. This Lease is made upon the express condition that LANDLORD
shall be free from any and all liabilities and claims for damages and/or suits
for or by reason of any injury or injuries or death to any person or persons or
damage to property or loss of property of any kind whatsoever, whether the
person or property of TENANT, its agents or employees, or third persons from
any cause or causes whatsoever while in or upon the Leased Property, or any
part thereof, or on any facility used as a result of or in connection with
TENANT's riverboat gaming operation, during the term of this Lease, or any
renewal thereof, or occasioned by any occupancy or use of the Leased Property ,
or any activity carried on by TENANT in connection therewith. TENANT hereby
covenants and agrees to indemnify and save harmless LANDLORD from all losses,
damages, liabilities, charges, expenses, fines, penalties, attorney's fees and
costs on account of or by reason of any such injuries, liabilities, claims,
suits or losses however occurring, or damages growing out of same. This
indemnity shall apply regardless of whether said loss, damage, liability,
claims, demands, fines, penalties, or suits are occasioned, brought about or
caused, in whole or in part, by the negligence of LANDLORD, its agents,
directors, officers, employees or servants and regardless of whether such
negligence be active or passive, primary or secondary. This indemnity shall
also apply regardless of whether said loss, damage, liability, claims, demand
or suits are occasioned, brought about or caused, in whole or in part, by the
strict liability of LANDLORD, its agents, directors, officers, employees or
servants, it being the intention of the parties hereto that LANDLORD be
indemnified by TENANT against the consequences of its strict liability. This
indemnity shall inure, by stipulation pour autrui, to the benefit of agents,
directors, officers, employees and servants of LANDLORD, and any one of them
may exercise this right of indemnity against TENANT independently of LANDLORD
or of others.
19. WAIVER OF SUBROGATION. Whenever (I) any loss, cost, damage or
expense resulting from any peril covered by fire insurance, with standard
extended coverage, is incurred by any party to this Lease in connection with
the Leased Property, any party to this Lease in connection with the Leased
Property or any property located thereon, and (II) such party is then covered
in whole or in part by insurance with respect to such loss, cost, damage, or
expense, then the party so insured hereby releases the other party from any
liability it may have on account of such loss, cost, damage, or expense to the
extent of any amount recovered by reason of such insurance and waives any right
of subrogation which might otherwise exist in or accrue to any person or
account thereof.
20. HOLDING OVER. Should TENANT remain in possession of the Leased
Property or part thereof, after the expiration of this Lease, without the
execution of a new Lease by LANDLORD and TENANT, TENANT shall become a tenant
from month-to-month of the property, or part thereof, under all the terms,
conditions, provisions and obligations of this Lease and such month-to-month
tenancy may be terminated by either LANDLORD or TENANT as of the end of any
calendar month upon thirty (30) days prior written notice.
21. QUIET ENJOYMENT. LANDLORD covenants that if and for so long as TENANT
pays the rent and performs the covenants and conditions hereof, TENANT shall
peaceably and quietly have, hold and enjoy the Leased Property for the full
term of this Lease and any renewals thereof.
22. LANDLORD'S REPRESENTATION. LANDLORD represents and warrants that it has
full right, power and authority to execute and perform this Lease and to grant
the estate demised herein. The signatory on behalf of LANDLORD represents and
warrants that it has the authority to enter into this Lease without the consent
or approval of any other person or entity and makes the representations
included herein knowing that TENANT will rely thereon.
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23. SURRENDER OF PREMISES. Upon termination of this Lease, TENANT shall
surrender the Leased Property in good order and condition, ordinary wear and
tear, alterations and improvements, and the elements excepted.
24. ATTORNEY'S FEES. In the event LANDLORD institutes legal proceedings
against TENANT for breach of any of the terms, conditions or covenants of this
Lease, the TENANT shall pay all costs, charges and expenses relative thereto,
including reasonable attorney's fees.
25. NOTICES. Any notice by either party to the other shall be in writing
and shall be deemed to be duly given only if delivered personally or mailed by
registered or certified mail, return receipt requested or by overnight mail
(e.g. Federal Express, Airborne Express, etc.), and received or rejected by
the other party.
IF TO TENANT:
St. Xxxxxxx Gaming Company, Inc. With a copy to:
0000 Xxxx Xxxxxxxxx Xxxxxxx X. X. Xxxxxxx, III
Suite 103 Xxxxxx & Xxxxxxx
Xxxxxx, XX 00000-0000 0000 Xxxx Xxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
IF TO LANDLORD:
Port Resources, Inc. and CRU, Inc.
Suite 1700 000 Xxxxx Xxxxxxxxxx Xxxxxx
XX Xxxxx Xxxxxxx, Xxxxxxxxx 00000-0000
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
26. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the parties, there being no other terms, oral or written, except as herein
expressed. No modification of this Lease shall be binding on the parties unless
it is in writing and signed by all parties hereto.
27. RECORDABLE MEMORANDUM. LANDLORD and TENANT agree not to record this
Lease, but each party agrees, upon request by the other, to execute a
memorandum of this Lease in a recordable form and in compliance with applicable
law.
28. SUCCESSORS AND ASSIGNS. The provisions of this Lease shall apply to,
bind and inure to the benefit of LANDLORD and TENANT, and their respective
successors and legal representatives.
29. LEGAL INTERPRETATION. This Lease and the right and obligations of
the parties hereto shall be interpreted, construed and enforced in accordance
with the laws of the State of Louisiana.
30. ENVIRONMENTAL POLLUTION AND HAZARDOUS SUBSTANCES.
(A) LANDLORD's Representations. LANDLORD makes absolutely no
warranty nor representation as to the condition of the Leased Property,
including any environmental condition. TENANT assumes this Lease subject to
the conditions herein and specifically assumes all liability with respect
thereto.
(B) TENANT's Warranties and Representations. TENANT warrants that
prior to commencement of business, it shall have obtained all permits,
licenses, and other documentation required in connection with the development,
improvement, use, operation and maintenance of the property (movable or
immovable) conducted under this Lease, and that no such development,
improvement, use, operations or maintenance of the Leased Property shall give
rise to any liability to LANDLORD.
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TENANT shall not allow the placement, use or storage on the Leased
Property of any toxic, hazardous or harmful materials, substances,
contaminants, or waste products, as defined by any state, federal or local law
or regulation. Any liability which may be imposed upon LANDLORD as owner of
the Leased Property , which arises out of the presence and/or release of any
toxic, hazardous or harmful material, waste, substance or product placed or
knowingly permitted to be put or placed on the Leased Property after the
effective date of this Lease is hereby specifically assumed by TENANT.
(C) TENANT's Indemnification. TENANT shall indemnify and
hold harmless LANDLORD, its officers, directors, shareholders, employees,
agents, successors, and assigns against any damages, claims, losses,
liabilities and expenses which may be imposed upon, incurred by, or assessed
against LANDLORD by any other party, including a government entity, relating in
any way to any environmental condition or contamination on the Leased Property
arising out of the direct or indirect result of TENANT's presence on the
property, even if not discovered until after termination of the Lease.
TENANT's indemnification shall include reimbursement to LANDLORD for all costs
or expenses, damages, claims, fines, fees, including attorney and consultant
fees, civil or criminal fines and penalties, contract charges, government
expenses, accounting, engineering or other fees. Such indemnity shall survive
the Lease term.
Should TENANT fail to promptly comply with any order or directive of
any governmental agency or court regarding corrective action or remediation of
the Leased Property, LANDLORD may take such action as has been ordered or
directed and TENANT shall promptly pay to LANDLORD all reasonable expenses and
costs incurred by LANDLORD, including those described above.
31. COMPLIANCE WITH LAWS. TENANT shall comply with all laws,
ordinances, rules and regulations in so far as they pertain solely to the
particular manner in which the TENANT shall use the Leased Property and TENANT
represents and warrants that its particular use and occupancy of the Leased
Property (other than as contemplated by this Lease) shall comply fully with all
private covenants, conditions and restrictions applicable to the Leased
Property.
32. NO IMPLIED WAIVER. The failure of a party to insist upon the strict
performance of the Lease or to exercise any remedy for an event of default
shall not be construed as waiver. The waiver of any event of default shall not
prevent a subsequent similar event from being a default. No waiver shall be
effective unless expressed in writing signed by the waiving party. No waiver
shall effect any condition other than the one specified in the waiver, and then
only for the time and the manner stated.
33. TIME IS OF THE ESSENCE. In all instances where either party is
required to pay any sum or do any other act at a particular time or within a
specified period, it is understood that time is of the essence.
34. SEVERABILITY. The headings or titles in this Lease are inserted for
convenience only and are not to be given any effect in its construction.
Wherever appropriate in this Lease, personal pronouns shall be deemed to
include the other genders and the singular to include the plural. If any
provision of this Lease is invalid or unenforceable, the remainder of this
Lease shall not be affected. Each separate provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
If for any reason and at any time any law applicable to TENANT's
operation prohibits gaming or the operation of the contemplated riverboat
hereunder, this Lease shall nevertheless remain in full force and effect for
its designated term and all rights and obligations thereunder shall be complied
with.
35. GUARANTEE. And now unto these premises comes Crown Casino Corporation
which declares that in consideration of LANDLORD granting this Lease to St.
Xxxxxxx Gaming Company, Inc., a wholly owned subsidiary of Crown Casino
Corporation, Crown Casino Corporation does hereby guarantee all and singular of
the obligations of TENANT under this Lease.
36. CONFIDENTIALITY. LANDLORD shall not make any public announcement or
press
10
release concerning this transaction unless it has received TENANT's written
consent. Notwithstanding anything herein to the contrary, LANDLORD is entitled
to take any and all steps necessary and/or prudent, in LANDLORD's sole judgment
and discretion, to protect LANDOWNER's interest in this Lease and/or in the
Leased Property, said steps including but not limited to inquiries,
investigations, reports, disclosures, communications, notices and/or filings as
the situation may require.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
as of the day and year first above written.
WITNESSES:
Port Resources, Inc.
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BY:
--------------------------------
Xxxxxxx X. Xxxxx, Vice President
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CRU, Inc.
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BY:
--------------------------------
Xxxx X. Xxxxxx, Xx., President
------------------------------
St. Xxxxxxx Gaming Company, Inc.
------------------------------
BY:
--------------------------------
Xxxxxx X. XxXxxxxx, President
------------------------------
Crown Casino Corporation
------------------------------
BY:
--------------------------------
Xxxxxx X. XxXxxxxx, President
------------------------------
