GROUND LEASE
Exhibit
10.33
STATE
OF
MISSISSIPPI
COUNTY
OF
XXXXXXXX
FIRST
JUDICIAL DISTRICT
This
GROUND LEASE (the "Lease")
is
made and entered into effective the 5th day of May, 2006 by and between
FAMILY
LANDS L.P.,
a
Mississippi limited partnership (the "Landlord"),
with
an address of 0000 Xxxxx Xx., Xxxxxxxxxxx, XX 00000; and IOC
MISSISSIPPI, INC.,
a
Mississippi corporation (the "Tenant")
with
an address of 0000 Xxxxx Xxxxx Xxxx #X-0, Xxxxxx, XX 00000.
A. Landlord
is the fee simple owner of the surface of certain land more particularly
described on Exhibit
F
attached
hereto and located in the First Judicial District of Xxxxxxxx County,
Mississippi (“Landlord’s
Entire Property”).
B. Tenant
wishes to lease from Landlord, and Landlord wishes to lease to Tenant, the
portion of the Landlord’s Entire Property described on Exhibit
A
attached
hereto in order for the Tenant to seek a gaming license to develop and operate
a
gaming resort and entertainment facility (“Isle
Project”)
pursuant to the terms and conditions hereof.
1. Premises
and Improvements.
Landlord
hereby leases, demises, and lets to Tenant, and Tenant hereby leases, takes
and
hires from Landlord, on the terms, covenants, provisions, and agreements and
for
the uses hereinafter provided, the following (collectively, the “Premises”):
1.1. Land.
That
certain tract or parcel of land lying and being in the First Judicial District
of Xxxxxxxx County, State of Mississippi, and described on Exhibit
A
attached
hereto and incorporated herein for all purposes, together with the littoral
or
riparian rights thereto and other appurtenances, if any, thereunto belonging
(the “Land”),
less
and except any and all right, title and interest in and to the oil, gas and/or
other minerals thereon or thereunder; and
1.2. Access
Easement.
A
non-exclusive easement not less than sixty (60) feet wide for utilities and
for
ingress and egress to and from that portion of the Land located in the SE1/4
of
the NW1/4 of Section 6, Township 8 South, Range 13 West, Harrison
County, Mississippi, to a point on the Kiln-Xxxxxxx Road public right-of-way
not
more than 1,500 feet from the I-10 eastbound exit ramp (the “Access
Easement”).
The
Landlord further agrees to
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cooperate
with Tenant to provide to Tenant an easement on real property (not to exceed
one
(1) acre) owned by Landlord and adjacent to the Access Easement for the purpose
of locating and constructing a water tower (the “Water
Tower Easement”).
The
location and boundaries of the Water Tower Easement and the Access Easement
shall be permanently determined by Landlord and Tenant, surveyed, and placed
of
record prior to the expiration of the Initial Development and Permitting
Period.
1.3. Improvements.
Any and
all improvements, if any, presently on the Land; and
1.4. Appurtenances.
All and
singular, the appurtenances, rights, interest, easements, and privileges, on,
in, and/or to the Land, including without limitation, all riparian and/or
littoral rights thereto.
2. Term,
Conditions, Uses and Duration.
2.1. Term.
The
initial term of this Lease shall be five (5) years (the “Initial
Term”)
and
shall commence as of the expiration of the Development and Permitting Period
(as
defined herein). Tenant shall have the option to renew the Lease for up to
eighteen (18) successive five-year terms and one successive final four-year
term, under the terms and conditions provided herein (each a “Renewal
Term”).
Unless the Tenant shall notify the Landlord in writing that the Tenant does
not
desire to exercise its renewal option for a successive Renewal Term prior to
one
hundred eighty (180) days before the termination of the Initial Term or any
Renewal Term then in effect, this Lease shall automatically be renewed for
the
next Renewal Term. Tenant’s rights to extend this Lease shall expire
automatically upon the termination of this Lease.
2.2. Conditions
to Lease and Title.
Tenant
shall satisfy or waive the following conditions in order for the Initial Term
to
commence: Tenant shall have obtained, within six (6) months following
execution of this Lease, at its expense, all permits and approvals from any
governmental or quasi-governmental entities which are required or necessary
for
the intended use and development of the Isle Project, including, without
limitation, those permits and approvals set forth on Exhibit D
attached
hereto, and shall pursue such approvals and permits with diligence while keeping
Landlord informed as to its progress (the “Initial
Development and Permitting Period”).
Notwithstanding the foregoing, if Tenant has been unable to obtain all permits
and approvals on the Isle Project within the Initial Development and Permitting
Period, and has been pursuing such permits and approvals, and if Tenant in
its
sole business judgment still considers the Isle Project to be feasible, then
the
period for satisfying or waiving the provisions herein may be extended, upon
ten
(10) days’ prior written notice to the Landlord, for up to four (4) additional
periods of three (3) months each (each such period an “Extended
Development and Permitting Period”),
provided that the Tenant shall pay $250,000 to Landlord for each extension
with
the notice of extension required hereunder (the Initial Development and
Permitting Period, together with each Extended Development and Permitting
Period, if any, are collectively referred to as the “Development
and Permitting Period”).
Tenant represents that prior to the execution hereof, Tenant, at Tenant’s
expense, has ordered from a title company licensed to do business in the State
of Mississippi, a commitment for an ALTA owner’s title policy on the Land (the
“Commitment”).
Tenant shall have ten (10) days after execution hereof
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to
notify
Landlord in writing as to specific matters to which Tenant objects. Within
five
(5) days of receipt of Tenant’s title objection notice, Landlord shall notify
Tenant in writing as to any title objections that Landlord is unable or
unwilling to cure or satisfy, or cause to be insured over by affirmative
title
insurance coverage. Failure of Landlord to provide such notice shall be deemed
notice by Landlord that it is unable or unwilling to cure such title objection.
Unless written notice of Tenant’s failure to obtain any necessary permit or
approval or Tenant’s refusal to waive any title objections that Landlord is
unable or unwilling to cure, and Tenant’s election to terminate this Lease, is
given by Tenant to the Landlord prior to the expiration of the Development
and
Permitting Period, the Initial Term will automatically commence upon the
date of
such expiration (the “Commencement
Date”).
This
Lease shall terminate upon Tenant giving timely notice in accordance with
the
immediately preceding sentence; and except as otherwise provided herein,
neither
party shall have any further rights or obligations hereunder. From the date
hereof through the Commencement Date, Landlord shall use reasonable efforts
to
make its surveyor, Xxxxxxxx X. Xxxxxxxx of Shows, Xxxxxxx & Waits,
Inc., available to Tenant in connection with Tenant’s review of title
matters.
2.3. Uses.
Tenant
shall use the Premises for the purpose of conducting and offering casino gaming.
Tenant may also use the Premises for entertainment, hotel (including a
condominium hotel), other lodging, dining, retail, parking and recreational
facilities, and other purposes related to casino gaming. Tenant agrees that
the
Premises shall not be used for any unlawful purposes or for any purpose which
is
extra hazardous or constitutes a public or private nuisance. Tenant shall not
construct, or permit to be constructed, on the Premises any retail facility,
restaurant, hotel, or other commercial development that is not contained within
or physically connected to, either by landscaping, sidewalk, walkway, or similar
means providing for a common integrated development scheme, the primary casino
facility on the Premises. Tenant will not assign or sell any portion of the
Premises for purposes inconsistent with the uses permitted under this Section
2.3.
2.4. Inspection.
Tenant
and its representatives or agents shall have the right to inspect the Premises
at all reasonable times without the consent of the Landlord during the
Development and Permitting Period, including the right to enter the Premises
at
any reasonable time to make tests, borings, surveys, studies, inspections,
investigations and interviews of persons familiar with the Premises. Tenant
shall keep the Premises free of any liens and repair any material physical
damage to the Premises.
3. Short
Form or Memorandum of Lease Suitable for Recording.
3.1. The
parties hereto have contemporaneously herewith executed and delivered the short
form or memorandum of lease and restrictions, in the form attached as
Exhibit B
hereto,
duly acknowledged and in recordable form. The short form or memorandum of lease
may be recorded by either Landlord or Tenant. All the costs and expenses of
recording said short form or memorandum of lease shall be paid by the Tenant.
The short form or memorandum of lease shall be amended to incorporate the legal
descriptions for the Access Easement and Water Tower Easement when finally
determined pursuant to Section 1.2 hereof.
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4. Rent.
4.1. Initial
Rent.
4.1.1. Amount
and Payment Terms.
Commencing on the Commencement Date and continuing each year during the term
hereof, if the Lease has not been previously terminated, Tenant shall be
obligated to pay to Landlord annual initial rent (“Initial
Rent”)
of
Five Hundred Thousand and No/100 Dollars ($500,000.00), commencing on the
Commencement Date and ending on the first
day of
the calendar month immediately following the earliest of: (i) completion of
construction of the Isle Project; (ii) the date on which any portion of the
Isle Project opens to the public; (iii) twenty-four (24) months following
the Commencement Date; or (iv) December 31, 2008 (the “Base
Rent Commencement Date”).
The
Initial Rent shall be payable in monthly installments of Forty-One Thousand
Six
Hundred Sixty-Six and 66/100 Dollars ($41,666.66) each, shall be due and payable
on the first day of the month immediately following the Commencement Date,
and
shall continue on the first day of each month thereafter until the Base Rent
Commencement Date. From the Commencement Date to the first day of the
immediately following month, the monthly Initial Rent shall be prorated by
multiplying $41,666.66 by a fraction of the number of calendar days remaining
in
such month and the denominator of which shall be the total number of calendar
days of such month.
4.2. Base
Rent, Amount and Payment Terms.
Beginning on the Base Rent Commencement Date, Tenant shall pay Landlord an
annual rent in the amount of Two Million Five Hundred Thousand and No/100
Dollars ($2,500,000.00) (as adjusted from time to time hereunder, the
“Base
Rent”).
All
Base Rent shall be paid in advance on the first day of each calendar month
in
equal monthly installments of Two Hundred Eight Thousand Three Hundred
Thirty-Three and 33/100 Dollars ($208,333.33) each (subject to adjustment
pursuant to Section 4.4 hereof).
4.3. Manner
of Payment.
Tenant
covenants to pay to Landlord the rent and all other sums and payments to be
made
by Tenant as provided under this Lease which may become due from or payable
by
Tenant, at the time and in the manner in the Lease, all of which rents, sums
and
payments are to be paid in legal tender of the United States of America, which
shall be legal tender in payment of all debts and dues, public or private,
at
the time of payment, or by good check without any deduction, diminution,
abatement, or rebate of whatsoever kind, nature, and description, except as
otherwise specifically provided in this Lease; and payment shall be considered
paid when received by Landlord, in U. S. mail, postage pre-paid, and addressed
to the Landlord at the notice address provided herein,
4.4. Consumer
Price Index Adjustment.
4.4.1. Adjustment
Procedure.
The
Base Rent shall be adjusted every five (5) years from and after the Base Rent
Commencement Date in proportion to the increase, if any, in the Consumer Price
Index as determined and published by the Bureau of Labor Statistics of the
United States Department of Labor, U.S. City Average, All Items and Major Group
Figures For All Urban Consumers (CPI-U) (1982-84 = 100) (the “Price
Index”)
over
the Price Index that was published on the Base Rate Commencement Date (the
“Base
Price Index”).
On
the Base Rate Commencement Date, Landlord and Tenant shall complete and execute
the
4
Certificate
which is attached hereto as Exhibit
C
in order
to memorialize the Base Rate Commencement Date and the dates (the “Adjustment
Dates”)
on
which the Base Rent shall be adjusted to reflect any increases in the Price
Index. Until the Price Index is published for the month immediately preceding
the applicable Adjustment Date, Tenant shall continue to pay the Base Rent
provided for in Section 4.2 of this Lease, as adjusted on the most recent
previous Adjustment Date, if any. Upon publication of the Price Index for
the
month immediately preceding the applicable Adjustment Date the Landlord shall
compute the adjusted Base Rent applicable until the next succeeding Adjustment
Date, and shall furnish the Tenant with the Landlord’s computation of the
adjusted Base Rent. The adjusted Base Rent for the period following the
applicable Adjustment Date shall be the greater of the Base Rent provided
for in
Section 4.2 of this Lease, as adjusted through the most recent previous
Adjustment Date, if any, or the product arrived at by multiplying (i)
$2,500,000.00 by (ii) a fraction, the numerator of which shall be the Price
Index published for the month immediately preceding the Adjustment Date and
the
denominator of which shall be the Base Price Index. The adjustment in Base
Rent
calculated on each Adjustment Date shall not exceed ten (10) percent of the
Base
Rent payable immediately prior to such Adjustment Date. Such adjusted Base
Rent
shall be divided and paid in 12 equal monthly installments during each lease
year, commencing on the first day of the first month immediately after Landlord
furnishes Tenant with such computation. When the adjusted Base Rent is
determined, Tenant, on the first day of the first month after Landlord furnished
Tenant with such computation, shall pay Landlord the difference between the
adjusted Base Rent as determined by such computation, and the Base Rent,
as
adjusted down through the most recent previous adjustment date, if any, for
each
month between the applicable Adjustment Date, and the first day of the first
month after Landlord furnished Tenant with such computation.
4.4.2. Unavailability
of Price Index.
If the
Price Index is no longer based on the years 1982-84 and a conversion factor
is
made available, then the Price Index will be calculated by using such conversion
factor. If the Price Index is not published for any month which is to be used
in
calculating the Base Rent under this Section, the Price Index which is published
for the most recent month within the six month period prior to the month
specified in this Section shall be used for calculating the Base Rent. If
publication of the Price Index is discontinued, the most comparable statistics
on the cost of living for the Mississippi Gulf Coast metropolitan area, as
such
statistics are computed and published by a federal agency or by a recognized
financial periodical shall be used in making adjustments contemplated in this
Section 4.4. If comparable statistics are used in place of the Price Index,
the
method of computation shall include all revisions required to carry out the
intent of this Section. .
4.4.3. Effect
of Delay.
Landlord’s delay or failure in computing or billing for the Adjusted Base Rent
shall not impair the continuing obligation of Tenant to pay such Base Rent
as
determined in accordance with this Section.
4.5. Percentage
and Additional Rent.
4.5.1. Amount
and Payment Terms.
After
the commencement of gaming operations of the Isle Project, Tenant shall pay
Landlord an annual percentage rent (the “Percentage
Rent”)
in an
amount equal to five percent (5%) of the Gross Gaming Revenues from gaming
operations on the Isle Project as calculated for the purpose of license fees
under the Mississippi Gaming Control Act (the “GGR”),
as
now or hereafter amended, and the regulation
5
as
promulgated now or hereafter under such law, but only to the extent that
such
amount exceeds the annual Base Rent then payable. Any Percentage Rent required
to be paid shall be paid to Landlord on or before the 20th
day of
each month following the months during which revenues are collected and shall
be
accompanied by a copy of the monthly revenue reports which must be submitted
to
the Mississippi Gaming Commission. Tenant shall also provide Landlord with
copies of any financial statements, reports, or audits required of Tenant
by the
Mississippi Gaming Commission pursuant to the Mississippi Gaming Control
Act, as
now or hereafter amended, within ten (10) days after the same are submitted
to
the Commission.
4.5.2. Books,
Records, and Audits.
The
Tenant shall maintain books and records according to generally accepted
accounting principles, consistently applied, with respect to all business
transacted in, on, or from the Premises, which shall contain sufficient
information to permit a calculation of the Percentage Rent provided for in
this
Lease. Landlord may examine all books and records of Tenant that in any way
pertain to business transacted in, on, or from the Premises, regardless of
the
location of such books and records. Such examination shall be made at reasonable
times and places. Tenant shall promptly provide Landlord with a copy of all
audits prepared by Tenant or its independent certified public accountant with
respect to the Premises. The Landlord may also audit the Tenant’s records but
only for the purpose of ascertaining the amount of Percentage Rent due under
the
terms hereof. If the Landlord wishes to audit the Tenant’s records, it shall
notify the Tenant in writing of its election so to do. Any audit or examination
by Landlord shall be at Landlord’s expense, unless the audit discloses a
discrepancy of more than one percent (1%) in the net profits realized from
operations or activities unrelated to gaming, or a discrepancy of more than
one
percent (1%) in the amount of GGR as calculated for the purpose of reporting
to
the Mississippi Gaming Commission. In the event of any such discrepancy of
more
than one percent (1%), each such audit or examination shall be at Tenant’s
expense. Landlord shall keep in confidence all information furnished to it
and
any information which it might gain or gather from the examination or audit
of
the Tenant’s books.
4.5.3. Additional
Rent.
Provided this Lease has not been previously terminated pursuant to Section
2.2
hereof on the date that any of the following amounts become due, Tenant shall
also pay Landlord the following amounts (collectively, the “Additional
Rent”):
(i) Two Hundred Fifty Thousand and No/100 Dollars ($250,000) upon execution
of the Lease; (ii) Two Hundred Fifty Thousand and No/100 Dollars ($250,000)
payable six months after execution of the Lease; (iii) Two Hundred Fifty
Thousand and No/100 Dollars ($250,000) payable twelve months following execution
of the Lease; and (iv) all amounts described in Section 2.2 hereof in
connection with the Extended Development and Permitting Periods.
4.6. Late
Payments.
All
amounts which Tenant is required to pay pursuant to this Lease, including but
not limited to the Initial Rent, the Base Rent, the Percentage Rent, Additional
Rent, payment required by Section 22.3 (c) hereof, together with every fine,
penalty, interest and cost which may be added for non-payment or late payment
thereof, shall constitute rent or any other sum due hereunder when the same
shall become due. Landlord shall have all rights, powers and remedies with
respect thereto as are provided herein or by law in the case of non-payment
of
any Base Rent and shall, except as expressly provided herein, have the right
to
pay the same on behalf of Tenant. Tenant shall pay to Landlord interest at
the
rate of one percent over the consensus prime rate as published from time to
time
in The
Wall Street
6
Journal,
but not
to exceed the maximum amount permitted by law, on all overdue rent from the
due
date thereof until paid, in each case paid by Landlord on behalf of Tenant,
from
the date of payment by Landlord until repaid by Tenant. Tenant shall perform
all
its obligations under this Lease at its sole cost and expense, and shall
pay all
Initial Rent, Base Rent, Percentage Rent, Additional Rent and any other sum
due
hereunder when due and payable, without notice or demand.
5. Taxes,
Assessments and Utilities.
Tenant
shall pay before they become due, and before any fine, penalty, interest or
costs may be added thereto:
| (a) |
All
taxes, license fees, assessments, levies, water and sewer rents and
charges, and all other governmental charges, general and special,
ordinary
and extraordinary, foreseen and unforeseen, whether or not now customary
or within the contemplation of Landlord and Tenant, which are at
any time
during the duration of this Lease, imposed or levied upon, reasonably
attributable to, or assessed against (a) the Premises, (b) any Initial
Rent, Base Rent, Percentage Rent, Additional Rent or other sums payable
hereunder, (c) this Lease or the leasehold estate hereby created
(d) the
operation, possession or use of the Premises, (e) the cost or value
of any
equipment, furniture, fixtures and other personal property located
in or
upon the Premises, or the cost or value of any leasehold improvements
made
in or to the Premises by or for Tenant whether such improvements
are owned
by Landlord or Tenant, and (f) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by
Tenant of
the Premises or any portion thereof;
|
| (b) |
All
sales, value added, ad valorem, use, and similar taxes at any time
levied,
assessed or payable on account of the acquisition, ownership, leasing,
operation, possession or use of the Premises;
and
|
| (c) |
All
charges of utilities, communications and similar services serving
the
Premises.
|
5.2. 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 shall be incurred by
Landlord, and which proceedings shall prevent the sale, forfeiture or loss
of
the Premises. Landlord agrees to cooperate in any such contest.
5.3. Tenant
shall not be required to pay any franchise, estate, inheritance, transfer,
income or similar tax of Landlord, unless and only to the extent that such
tax
is imposed, levied or assessed in substitution for any other tax, assessment,
charge or levy which tenant is required to pay pursuant to this Section 5;
provided however, that if any time during the term of this Lease, the method
of
taxation shall be such that there shall be assessed, levied, charged or imposed
on Landlord a capital levy or other sales-type tax directly on the rents
7
received
therefrom, or on the value of the Premises or any present or future improvements
on the Premises, then all such levies and taxes, or the part so measured
or
based, shall be paid by Tenant.
5.4. All
taxes
assessed for the year 2006 which are payable after the Commencement Date, and
all taxes assessed for the last year of the term hereof, but payable after
the
expiration or other termination of the term hereof, shall be adjusted and
prorated so that the Landlord shall pay its prorated share for the periods
preceding and following the term hereof, and the Tenant shall pay its prorated
share for the lease term. Landlord shall deliver to Tenant the ad valorem tax
statements for the Premises at least twenty-five (25) days prior to the date
that the payment of same is due.
5.5. If
any
time during the Initial Term or any Renewal Term, the method of taxation shall
be such that there shall be assessed, levied, charged or imposed on Landlord
a
capital levy or other tax directly on the rents received therefrom, or upon
the
value of the Premises or any present or any future improvement or improvements
on the Premises, then all such levies and taxes or the part thereof so measured
or based shall be payable by Tenant, and Tenant shall pay and discharge the
same
as herein provided. Tenant will furnish to Landlord, promptly after demand
therefor, proof of payment of all items referred to above which are payable
by
Tenant. If any such assessment may legally be paid in installments, Tenant
may
pay such assessment in installments.
5.6. Utilities.
Tenant
shall be obligated to pay or cause to be paid all expenses of heat, light,
charges and taxes for water and any other utility expenses in connection with
Tenant's use and operation of the Premises or for the connection, setting and
repairing of meters in and for any, buildings and improvements hereafter erected
by Tenant. Tenant, upon approval by Landlord, shall have the right to enter
into
reasonable agreements with public utility authorities and governmental agencies
creating easements in favor of such public utilities and governmental agencies
as may be required in order to provide service to the Premises. Landlord, if
required by the affected utility, will join in any standard utility easements
that Tenant is reasonably required to grant to utility companies in connection
with utility service to the Premises provided that such easements do not create
any personal liability or obligations on the part of Landlord. Any easements
granted under the authority of this Section 5.4 shall be limited to the
term of this Lease and shall be limited to the Premises.
6. Landlord's
Termination Right.
6.1. Right.
In the
event that the Tenant fails, after the Base Rent Commencement Date, to use
and
occupy the Premises primarily as an operating casino for a continuous period
of
twelve (12) months, then Landlord shall have the right, subject to
Section 6.2 and to Section 21 hereunder, to do one of the following:
(i) elect to terminate this Lease by providing written notice to Tenant at
least sixty (60) days prior
to
the effective date of such termination, and upon the expiration of such sixty
(60) day period, this Lease shall terminate unless Tenant or Tenant's successor
under Section 20, has, within such sixty (60) day period resumed operation
of the casino; or (ii) elect not to terminate this Lease in which case all
of the terms and provisions hereof shall remain in full force and effect, and
Landlord may pursue its remedies under law or in equity, if any.
8
6.2. Limitations.
Notwithstanding anything in Section 6.1 hereinabove to the contrary, in the
event Tenant is unable to operate the Premises primarily as a casino for any
consecutive twelve month period by reason of: (i) fire or other casualty
damage to all or any portion of the Premises, (ii) condemnation of all or a
portion of the Premises, or (iii) a Force Majeure (as defined in
Section 26 hereof), Landlord shall have no right to terminate this Lease so
long as Tenant (1) has notified Landlord of its intention to resume
operations, which notice shall include a specific description of Tenant’s
intended action plan for so resuming operations, (2) is diligently pursuing
the steps set forth in its action plan, and (3) is not otherwise in default
hereunder.
7. Maintenance
and Repairs.
7.1. Requirements
of Tenant.
Tenant,
at its own expense will maintain all parts of the Premises in good repair and
condition, ordinary wear and tear excluded, and will take all actions and will
make all foreseen and unforeseen and ordinary and extraordinary changes and
repairs which may be required to keep all parts of the Premises in good repair
and condition. Landlord shall not be required to maintain or repair the Premises
or any facilities or utilities which are utilized by Tenant in connection with
the Premises. Tenant waives the right to (i) require Landlord to maintain or
repair the Premises, or (ii) make repairs at the expense of Landlord pursuant
to
any legal requirements, contract, agreement, covenant, condition or restriction
at any time in effect.
8. Infrastructure.
8.1. Tenant’s
Right to Use.
Tenant
grants to Landlord for the benefit of Landlord’s Adjacent Property (as defined
herein) the unrestricted right and permanent easement and license to use certain
infrastructure, including roadways, driveways, and utilities, constructed by
Tenant on the Access Easement. Landlord shall have the absolute right, at its
expense, to connect a roadway to, or utilize, any access road constructed by
Tenant on the Access Easement. Landlord shall have no obligation to maintain
or
repair any of the infrastructure which is utilized by the Landlord. A recordable
document granting the easement from the Tenant to the Landlord to utilize the
infrastructure shall be agreed upon, executed by both parties, and recorded
prior to the Commencement Date. Such easement shall provide inter alia
that
Landlord’s use of the infrastructure will not interfere with Tenant’s use or
intended use thereof and will not result in such infrastructure being used
or
burdened beyond the levels for which such infrastructure was
designed.
9. Representations
and Warranties of Landlord.
Landlord
hereby represents and warrants to Tenant as follows:
9.1. Formation.
Landlord is a limited partnership duly formed, validly existing, and in good
standing under the laws of the State of Mississippi, and Landlord’s general
partner is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Landlord has the requisite
partnership power and authority to enter into and perform its obligations under
this Lease, and to own or lease its properties and assets as now owned or
leased, and to operate its businesses as now conducted.
9
9.2. Authorization.
The
execution, delivery and performance by Landlord of this Lease has been duly
authorized by the necessary action(s). This Lease has been duly and validly
executed and delivered by Landlord and constitutes the legal, valid, and binding
obligation of Landlord, enforceable against Landlord in accordance with its
terms.
9.3. Title.
Landlord's title to the Premises is good and marketable and free and clear
of
any and all exceptions, items, and encumbrances except such easements and
matters of record which do not, to the best of Landlord's knowledge and belief,
either individually or in the aggregate, prohibit the Tenant's use of the
Premises as a casino, hotel, and other permitted uses of the Premises (subject
to any matters that Landlord agrees to cure or insure over pursuant to
Section 2.2 hereof, the "Permitted
Exceptions").
Within five (5) days following execution of this Lease, Landlord shall obtain
a
partial release of any deed of trust granted by Landlord encumbering any part
of
the Land. At the Commencement Date, there shall not be a deed of trust granted
by Landlord encumbering the remaining part of the Premises.
10. Representations
and Warranties of Tenant.
Tenant
hereby represents and warrants to Landlord as follows:
10.1. Incorporation.
Tenant
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Mississippi. Tenant has the requisite corporate power
and authority to enter into and perform its obligations under this Lease, and
to
own or lease its properties and assets as now owned, or leased, and to operate
its businesses as now conducted.
10.2. Authorization.
The
execution, delivery and performance by Tenant of this Lease has been duly
authorized by all necessary corporate action. This Lease has been duly and
validly executed and delivered by Tenant and constitutes the legal, valid and
binding obligation of Tenant enforceable against Tenant in accordance with
its
terms.
11. Environmental.
11.1. Tenant’s
Representations.
Except
as reasonably necessary in connection with the conduct of Tenant’s business on
the Premises and except in strict compliance with applicable environmental
laws,
Tenant shall not allow the placement, use or storage on the Premises of any
hazardous waste, hazardous material, pollutant or contaminant, as such terms
are
now or hereafter defined in any or all applicable federal, state, and local
laws, ordinances or regulations now or hereinafter enacted or amended and any
and all terms which are or may be used in any or all applicable laws now or
hereafter enacted to define prohibited or regulated substances ("Toxic
Substance").
Any
liability which may be imposed upon Landlord as owner of the Premises which
arises out of the presence and/or release of any Toxic Substance placed or
permitted to be put or placed on the Premises after the Commencement Date of
this Lease is hereby specifically assumed by Tenant, and Tenant shall indemnify
and hold Landlord harmless from any such liability.
10
12. Covenants
of Landlord.
Landlord hereby covenants to Tenant as follows:
12.1. Cooperation.
Landlord shall join with Tenant (including without limitation, making joint
applications where necessary) and fully cooperate with Tenant in any manner
reasonably requested by Tenant to obtain any consents, permits, licenses,
leases, permissions, approvals or consents required for the construction, use
and/or operation of the Premises as permitted by this Lease. Without limiting
the generality of the foregoing, reference is made to Section 35
hereof.
12.2. Quiet
Enjoyment.
Tenant
shall quietly and peaceably hold, possess and enjoy the Premises (including
the
Access Easement and the Water Tower Easement) for the full term of the Lease
without any hindrance or molestation by Landlord or its agents or employees
or
any other person or entity claiming by, through or under Landlord.
12.3. Incompatible
Uses of Landlord’s Adjacent Property.
The
Landlord’s real property described in Exhibit E
attached
hereto (the “Landlord’s
Adjacent Property”)
shall
be restricted to those uses permitted under A-1, X-0, X-0, X-0, X-0, X-0, X-0,
C-2 and C-3 zoning under the zoning ordinances of Xxxxxxxx County, Mississippi
as in effect on the date hereof. This restriction shall expire upon the
expiration or earlier termination of this Lease; provided that this restriction
shall not expire for twenty-five (25) years from the Commencement Date in the
event Tenant acquires title to the Premises pursuant to the terms of this Lease
prior to the expiration of such 25-year period.
13. Assignment
and Subletting.
13.1. Landlord’s
Right.
Subject
to Section 13.5 hereof, Landlord reserves the right to sell, assign, or
transfer this Lease in connection with a sale of the Premises or mortgage
financing of the Premises, upon the condition that in such event this Lease
shall remain in full force and effect subject to the performance by Tenant
of
all its terms and conditions, and upon the further condition that such assignee
or transferee, except an assignee or transferee merely for security, agrees
to
perform all the terms, covenants and conditions under this Lease.
13.2. Tenant’s
Right.
Tenant
shall not have the right to assign or sublet its interest under this Lease
without the prior written consent of Landlord, except as set forth in
Section 13.4 hereof; provided, however, that subject to Section 2.3
hereof, Tenant shall have the right to sublet without Landlord’s consent
portions of the Premises so long as such portions are located within the casino
and hotel facility and do not exceed fifty percent (50%) of the aggregate square
footage of the casino facility. Except for an assignment permitted by clause
(ii) of Section 13.4 hereof, no such assignment or subletting shall relieve
the assigning party of the further performance of the covenants of this Lease,
and each assigning party shall remain liable for the payment of rent and the
performance of all other obligations hereunder. If Tenant enters into any
sublease pursuant to the provisions hereof, then each sublease shall be
subordinate to this Lease and each sublease shall contain provisions in form
and
substance substantially as follows:
“Sublessee
agrees that if, by reason of a default under any underlying lease (including
an
underlying lease through which Sublessor derives its leasehold
11
estate
in
the demised subpremises), such underlying lease and the leasehold estate of
sublessor in the demised subpremises is terminated, then Sublessee, at the
option and request of the then fee owner of the demised subpremises (the
“Fee
Lessor”),
shall
attorn to such Fee Lessor and shall recognize such Fee Lessor as Sublessee’s
direct lessor under this Sublease. Sublessee agrees to execute and deliver,
at
any time and from time to time, upon the request of Sublessor or of the Fee
Lessor or any mortgagee of either, any instrument that may be necessary or
appropriate to evidence such attornment. Sublessee hereby appoints Sublessor
or
such Fee Lessor or such mortgagee the attorney-in-fact, irrevocably, with full
power of substitution, of Sublessee to execute and deliver any such instrument
for and on behalf of the Sublessee. This appointment is coupled with an interest
and is irrevocable. Sublessee waives any statute or rule of law now or
subsequently in effect that may give or purport to give Sublessee any right
to
elect to terminate this Sublease or to surrender possession of the demised
subpremises in the event that any proceeding is brought by a Fee Lessor to
terminate any such underlying lease. Sublessee agrees that this Sublease shall
not be affected in any way whatsoever by any such proceeding.”
13.3. Landlord’s
Right of First Refusal.
Prior
to any sale of the leasehold interest in the Premises to a third party, Tenant
shall give Landlord a right of first refusal to purchase the leasehold interest
on the same terms and conditions agreed upon by the Tenant and third-party
purchaser (the “Purchaser”).
Landlord shall have forty-five (45) days after receiving notice from Tenant
of
the proposed sale to accept the terms agreed upon between the Tenant and the
Purchaser. If Landlord fails to give notice to Tenant before the expiration
of
the forty-five day period, Tenant, pursuant to Section 13.2, shall be free
to
assign the Lease, to Purchaser on said same terms and conditions.
13.4. Landlord’s
Consent Not Required.
Landlord’s right to consent to an assignment or subletting by Tenant pursuant to
Section 13.2 hereof and Landlord’s right of first refusal pursuant to Section
13.3 shall not apply to (i) any change in control in the ownership of
Guarantor, (ii) any assignment of this Lease or sale of the Premises by
Tenant to a third party having a minimum net worth of $100,000,000 as determined
by generally accepted accounting principles ( the “Required
Net Worth”)
or to
a third party who obtains a guaranty of this Lease from a third party having
the
Required Net Worth, or (iii) subject to Section 2.3 hereof, uses
permitted under Section 2.3 hereof (other than casino gaming). Any
sublessee described in clause (iii) hereof may sell hotel condominium units
without the consent or approval of Landlord, but such sales shall be subject
to
the terms and conditions of this Lease, including without limitation this
Section 13.
13.5. Tenant’s
Right of First Refusal.
Prior
to any sale of the Land or Premises to a third party, Landlord shall give Tenant
a right of first refusal to purchase the Premises proposed to be sold on the
same terms and conditions agreed upon by the Landlord and third-party purchaser
(the “Purchaser”).
Tenant shall have forty-five (45) days after receiving notice from Landlord
of
the proposed sale to accept the terms agreed upon between the Landlord and
the
Purchaser. If Tenant fails to give notice to Landlord before the expiration
of
the forty-five (45) day period, Landlord shall be free to sell all, but not
less
than all, the Land or Premises to the Purchaser on the same terms and
conditions. This Section 13.5 shall not apply to any sale or
12
transfer
by Landlord to its general or limited partners or any entity owned or controlled
by its general or limited partners.
14. Reversion
to Landlord.
On or
before the last day of the term of this Lease, or at such earlier time as this
Lease is terminated, Tenant shall remove its personal property and peaceably
surrender and yield up to Landlord the Premises, and all improvements and
fixtures the Landlord instructs not to be removed. Title to any buildings and
improvements remaining on the Premises at the expiration of the term of this
Lease may in the Landlord's sole discretion, vest in the Landlord upon
expiration hereof. Notwithstanding anything herein to the contrary, Tenant
shall
remove all buildings and improvements except to the extent, if any, otherwise
instructed by the Landlord.
15. Net
Lease.
This is
a net lease and, except as otherwise provided herein, there shall be no
abatement, diminution or reduction of the rent for any cause whatsoever. It
is
the intention of Landlord and Tenant that all rents and other amounts payable
hereunder shall be net to Landlord and that all costs, expenses and obligations
of every kind whatsoever relating to Tenant's use, occupancy and possession
of
the Premises which may arise or become due during the term of this Lease shall
be paid by Tenant, except to the extent otherwise provided herein. Landlord
shall not be obligated to render any services to Tenant except as specifically
set forth herein,
16. Casualty.
16.1. Fire,
Flood and Extended Coverage.
Tenant
shall procure and maintain, at its own expense during the term of this Lease,
casualty insurance written by companies of nationally recognized financial
standing covering the Premises and all equipment, fixtures and machinery at
or
in the Premises, against loss, damage, or destruction by fire, flood, or wind,
including extended coverage and special extended coverage endorsements and
against such other hazards, casualties, and contingencies, in an amount not
less
than eighty percent (80%) of the replacement value of the insurable buildings,
structures, improvements, and equipment.
16.2. Waiver
of Subrogation.
Landlord and Tenant each hereby waives any and all rights of recovery against
the officers, employees, agents and representatives of such other party for
loss
of or damage to such waiving party of its property or the property of others
under its control, arising from any cause insured against under the standard
form of fire and extended coverage insurance policy with permissible extension
endorsements covering additional perils or under any other policy of insurance
carried by such waiving party in lieu thereof.
16.3. No
Cancellation.
All
policies referred to in this Lease shall provide that they will not be canceled,
modified or amended except after thirty (30) days’ written notice to Landlord
and that they shall not be invalidated by any act or negligence of Landlord,
Tenant, or any person or entity having an interest in the Premises, nor by
occupancy or use of the Premises for purposes more hazardous than permitted
by
such policy, nor by any foreclosure or other proceedings relating to the
Premises, nor by change in title to or ownership of the Premises.
13
17. Liability
Insurance.
17.1. Obligation.
Tenant
covenants and agrees, at its sole cost and expense, to obtain, keep, and
maintain in full force and effect for the benefit of Tenant, Landlord, and
Landlord's general partner, and such other parties as Tenant may elect from
the
date construction of the improvements commences and thereafter: (1)
comprehensive liability insurance against claims for damage to persons or
property arising out of the use and occupancy of the Premises or any part or
parts thereof in limits of not less than Ten Million Dollars ($10,000,000)
combined single limit for bodily injury and not less than Five Million Dollars
($5,000,000) combined single limit for property damage.
17.2. Certificate.
A
duplicate original, certificate, or binder of such insurance shall be furnished
to Landlord prior to commencement of the construction of the improvements on
or
at the Premises; and each renewal certificate of each such policy shall be
furnished to Landlord.
17.3. Additional
Insured.
All
policies of liability insurance which Tenant is obligated to maintain according
to this Lease shall name Landlord as an additional insured. All liability
insurance policies maintained by Tenant shall contain a provision indicating
that Landlord, although named as an additional insured, will nevertheless be
entitled to directly recover under such policies for a loss sustained by it,
its
directors, officers, employees and agents as a result of the acts or omissions
of Tenant.
17.4. Landlord's
Ability to Cure.
In the
event Tenant fails to cause the aforesaid insurance policies to be written
or
pay the premiums for the same or deliver all such certificates of insurance
or
duplicate originals thereof to Landlord within the time provided for in this
Lease, Landlord shall nevertheless have the right, without being obligated
to do
so, to effect such insurance and pay the premiums therefor, and all such
premiums paid by Landlord shall be repaid to Landlord by Tenant on demand as
additional rent hereunder.
17.5. Workers’
Compensation.
Appropriate workers’ compensation insurance covering all persons employed in
connection with the construction, alteration, repair or operation of the
Premises and with respect to whom any claim could be asserted against Landlord
will be carried by Tenant.
17.6. Construction
Period.
From
the commencement of the Initial Term through the completion of all construction
and/or renovation of the Premises, Tenant shall also provide, or cause its
general contractor to provide, the following insurance coverage:
(a) Contractor’s Comprehensive and Motor Vehicle Liability Insurance having
a combined single limit of not less than Ten Million Dollars ($10,000,000.00);
and (b) builder’s risk insurance in amounts and coverage customary for
projects of similar size, value and scope.
18. Indemnity.
18.1. Tenant's
Indemnification.
Tenant
covenants and agrees to indemnify and hold Landlord, its affiliates, its general
partner's shareholders, directors, officers, employees, agents, successors
and
assigns harmless from and against any and all liability, damage, cost or expense
of any nature whatsoever arising from or related to (i) any
misrepresentations or breach
14
of
warranty or covenant by Tenant contained in this Lease, (ii) any violations
of law by Tenant with respect to the Premises existing or occurring prior
to,
on, and/or after the date hereof, and (iii) Tenant's use and operation of
the Premises and the use and operation of the Premises by Tenant's contractors,
employees, licensees, and invitees, occurring prior to, on, and/or after
the
date hereof except for any liability, damage, cost, or expense caused by
the
intentional acts or negligence of Landlord or Landlord’s affiliates, Landlord’s
general partner, employees, licensees, and invitees.
19. Construction
of Buildings and Improvements.
19.1. Authorization.
During
the term of this Lease, or any renewal or extension hereof, Tenant may erect,
on
the Premises, consistent with the uses provided for in Section 2.3, any
building, improvements, structures, and appurtenances thereto; and Tenant may
demolish all existing building(s), structures, and improvements now located
or
hereafter erected on the Premises, if any, and may remove, raze, and/or destroy
trees, plants, shrubs, and topsoil as Tenant may, in its sole and absolute
discretion, deem necessary or desirable.
19.2. Construction
and Capital Investment.
If
Tenant at any time or times during the term of this Lease shall construct any
buildings, structures, or improvements on the Premises, or any part or parts
thereof, the same shall be constructed without cost or expense to Landlord,
in
accordance with the requirements of all laws, ordinances, codes, orders, rules,
and regulations of all governmental authorities having jurisdiction over the
Premises. All such buildings, structures or improvements shall be constructed
by
or on behalf of Tenant and shall be the sole and exclusive property of Tenant.
Subject to Section 2.3, Tenant shall initially construct the
following:
| (a) |
A
casino with a minimum of 2,000 gaming
positions;
|
| (b) |
A
minimum of 500 hotel rooms;
|
| (c) |
Not
less than five food and beverage
outlets;
|
| (d) |
Entertainment
and meeting space containing not less than 30,000 square
feet;
|
| (e) |
Structured
parking for not less than 2,500 vehicles;
and
|
| (f) |
An
entry drive or road connecting the Isle project to public roadways,
together with all water, sewer, drainage and related infrastructure
required in connection with the improvements to be
constructed.
|
In
the
event the Commencement Date shall occur hereunder, Tenant agrees the total
cost
of the foregoing improvements shall be not less than $250,000,000.00 and to
use
its best efforts to complete construction of each of the above improvements
on
or before December 31, 2008.
19.3. Permits.
Tenant,
at its own cost and expense, shall apply for and prosecute with reasonable
commercial efforts using Tenant’s business judgment, all necessary permits,
licenses and approvals required for the Isle Project, including without
limitation those permits and approvals described in Exhibit D
attached
hereto. Landlord, without material cost or expense to itself, shall fully
cooperate with Tenant in securing building and all other permits
15
and
authorizations necessary from time to time for performance of any construction,
alterations or other work permitted or required to be done by Tenant under
this
Lease
19.4. Construction
and Permit Covenants.
Tenant
agrees to conform to the following, unless otherwise approved in writing by
the
Landlord, with respect to all construction and work to be completed in the
initial phase of the Isle Project:
| (a) |
All
construction activities and improvements related to the Isle Project
shall
avoid and shall not affect regulated wetlands as defined by Section
404 of
the Clean Water Act; and
|
| (b) |
All
construction activities and improvements related to the Isle Project
shall
avoid known cultural or historic resources as defined by Section
106 of
the National Historic Preservation Act of 1996; and described in
the June
14, 1996 letter from the State Historic Preservation Officer (Page
494 of
the Administrative Record); and
|
| (c) |
All
construction activities and operations related to the Isle Project
shall
not result in a significant impact to federally listed threatened
or
endangered species or violate any ordinance, regulation, or rule
administered by the Mississippi Department of Marine Resources;
and
|
| (d) |
All
construction activity and location of facilities shall occur landward
of
the mean high tide elevation; and
|
20. Restrictions
of Property.
20.1. Exclusivity.
Subject
to the provisions in Section 20.2 and 20.3 below, during the term of the Lease,
Landlord will not utilize, or allow any third party to utilize (except by
process or operation of law), any portion of Landlord’s Adjacent Property in
connection with any gaming operation other than the Isle Project or another
gaming project developed by the Tenant.
20.2. End
of
Exclusivity Period. Except
as
provided for in Section 20.3, if at any time after December 31, 2013, and for
any period of twelve (12) consecutive calendar months thereafter (the
“Termination
Period”),
the
GGR from the Isle Project is less than ten percent (10%) of the total of all
GGR
from all casinos which are then in either Xxxxxxxx County, Mississippi or
Xxxxxxx County, Mississippi, then the exclusivity provided for in Section 20.1
above shall terminate as of the end of said twelve (12) consecutive calendar
month period.
20.3. Payments
in Lieu.
Upon
payment from Tenant to Landlord, within thirty (30) days of expiration of such
Termination Period, and in addition to any and all other payments provided
for
herein, such that the total of all payments made by Tenant to Landlord within
said Termination Period is at least equal to 5 percent (5%) of ten percent
(10%)
of the total of all GGR from all casinos which are then in either Xxxxxxxx
County, Mississippi or Xxxxxxx County, Mississippi during said Termination
Period, then the exclusivity provided for in 20.1 above shall not terminate
as
of the end of that Termination Period.
16
20.4. Tenant’s
Rights When Exclusivity Not in Effect.
If at
any time, and from time to time, when the exclusivity provided for in this
Section 20 shall no longer be in effect and Landlord shall desire to sell
or lease all or any portion or portions of Landlord’s Adjacent Property for
gaming purposes, Landlord may make a written offer to Tenant stating the terms
and conditions on which Landlord desires to so sell or lease; and Tenant shall
have thirty (30) days within which to accept said offer on said terms and
conditions. If said offer is not so accepted by Tenant within said thirty (30)
days, Landlord will have one hundred eighty (180) days within which to so sell
or lease to a third party on said terms and conditions.
20.5. Infrastructure
Reimbursement.
Upon
the expiration of exclusivity pursuant to this Section 20, and in the event
thereafter that a third party shall use any of Landlord’s Adjacent Property for
gaming operations, then Tenant shall be reimbursed by the operator of a second
casino located on the Landlord’s Adjacent Property for such operator’s use of
all infrastructure on the Premises described in Section 8 hereof and benefiting
the operator. The reimbursement shall be one-half of the original total cost
of
construction of such infrastructure then still in use.
21. Leasehold
Financing.
21.1. Right
to Mortgage.
Notwithstanding anything to the contrary contained in this Lease, Tenant, upon
receiving the prior written consent of Landlord, shall have the absolute right,
at any time and from time to time, to mortgage the Tenant's interest in the
leasehold interest herein demised, one or more times (subject to the terms
and
conditions of this Lease), on such terms, conditions, and maturity as Tenant
shall determine, and to enter into any and all extensions, modifications,
amendments, replacements, and refinancings of any such leasehold mortgages
as
Tenant may desire (subject to the terms and conditions of this Lease). Tenant,
however, may not mortgage or encumber any of Landlord's interest; and no such
mortgages shall extend to or affect Landlord's reversionary interest or the
estate of Landlord in and to the Premises.
21.2. Right
following Foreclosure.
Notwithstanding anything to the contrary contained in this Lease, following
foreclosure, the successor to the Tenant (hereafter "Successor
Tenant"),
shall
have the absolute right, at any time and from time to time, to mortgage the
Successor Tenant's leasehold interest herein demised, one or more times (subject
to the terms and conditions of this Lease), on such terms, conditions, and
maturity as Successor Tenant shall determine, and to enter into any and all
extensions, modifications, amendments, replacements, and refinancings of any
such leasehold mortgages as Successor Tenant may desire (subject to the terms
and conditions of this Lease with prior written consent). Successor Tenant,
however, may not mortgage or encumber any of Landlord's interest.
21.3. Other.
21.3.1. Landlord
hereby acknowledges Tenant’s existing financing pursuant to that certain Seven
Hundred Million and No/100 Dollar ($700,000,000.00) Third Amended and Restated
Credit Agreement dated February 4, 2005 with Canadian Imperial Bank of
Canada, as Administrative Agent. Tenant shall keep Landlord fully informed
of
any material
17
changes
in the Tenant’s financing if such change could adversely affect the Landlord’s
rights under the Lease.
21.3.2. If
an
event or events shall occur which shall entitle Landlord to terminate this
Lease, and (a) if before the expiration of thirty (30) days after the date
of
service of a notice upon such leasehold mortgagee under this Lease, such
leasehold mortgagor shall have paid to Landlord all Base Rent herein provided
for then in default and (b) if before the expiration of sixty (60) days after
the date of service of a notice upon such leasehold mortgagee under this lease,
such leasehold mortgagee shall have paid to Landlord all percentage rent and
other payments herein provided for then in default, and shall have complied
or
shall be engaged in the work of complying with all the other requirements of
this Lease, if any, then in default, then Landlord shall not then be entitled
to
terminate this Lease, and any notice of termination theretofore given shall
be
void and of no effect.
21.3.3. If
an
event or events shall occur, including without limitation bankruptcy, assignment
for benefit of creditors, insolvency, or any other similar event, if applicable,
which shall entitle Landlord to terminate this Lease, and if such event or
events shall be in the nature of a non-monetary default by Tenant which a
leasehold mortgagee cannot cure by payment within the sixty (60) day period
after the date of service of notice to the leasehold mortgagee or is of a nature
that is not susceptible to cure by a leasehold mortgagee (including the filing
of bankruptcy by Tenant), then the leasehold mortgagee’s right to cure such
default shall be extended for so long as such leasehold mortgagee is diligently
prosecuting action reasonably calculated to cure such default, but not in excess
of three hundred sixty-five (365) days from service of such notice (a
"Non-Monetary
Cure Period"),
or to
foreclose. If the leasehold mortgagee cures such non-monetary default within
the
Non-Monetary Cure Period, Landlord shall not then be entitled to terminate
this
Lease and notice of termination theretofore given shall be void and of no force
and effect.
21.3.4. Nothing
herein contained shall in any way affect, diminish, or impair Landlord's right
to terminate this Lease (if such default is not cured within said sixty (60)
day
period, is not cured within the Non-Monetary Cure Period, if applicable, or
is
not in the process of being cured as aforesaid) or to enforce any other remedy
in the event of the non-payment of any Base Rent and Percentage Rent thereafter
payable by Tenant or in case of any other subsequent default in the performance
of any of the obligations of Tenant hereunder, in accordance with this Lease,
subject, however, to all of the provisions of this Section 21.
21.3.5. Nothing
contained herein shall release Tenant named in this Lease from any of its
obligations under this Lease which may not have been discharged or fully
performed by any holder of the leasehold mortgage, or its
designees.
21.3.6. Notwithstanding
anything to the contrary in this Lease, each leasehold mortgagee shall have
the
right to perform any term, covenant, condition or agreement of this Lease to
be
performed by Tenant and to remedy any default by Tenant hereunder, and Landlord
shall accept such performance by leasehold mortgagee with the same force and
effect as if furnished by Tenant, provided, however, that the leasehold
mortgagee shall not thereby be subrogated to the rights of
Landlord.
18
21.4. Use
of
Term.
Whenever and wherever in this Lease the term "leasehold mortgagee" has been
used
the same shall include any then holder of a leasehold mortgage
thereof.
21.5. No
Effect on Landlord’s Interest.
Landlord’s written consent to any leasehold financing, mortgage of the leasehold
interest, or any leasehold deed of trust, promissory note, assignment of rents
and/or security agreement, including, but not limited to, leasehold deed of
trust, assignment of rents and security agreement between Tenant and a
designated trustee and beneficiary whether such mortgage of leasehold interest,
etc. is accomplished by Tenant or any successor Tenant, shall not be construed
to modify, enlarge or affect Landlords' obligations or modify, diminish, impair
or affect Landlords' rights under this Lease or to subordinate Landlord’s
interest in the Premises to such leasehold deed of trust.
22. Events
of Default; Forfeiture; Termination.
22.1. Defaults.
The
following events are defaults under this Lease:
| (a) |
The
failure of Tenant to pay in full, within five (5) days after Landlord
gives Tenant written notice of non-payment, any installment of Initial
Rent, Base Rent, Percentage Rent, Additional Rent or any other rent
payable to Landlord hereunder;
|
| (b) |
The
failure of Tenant to pay in full, within five (5) days after Landlord
gives Tenant written notice of non-payment, any other sums payable
by
Tenant hereunder to Landlord;
|
| (c) |
The
failure of Tenant to comply in a timely manner with any covenant
or
obligation under the provisions of this
Lease;
|
| (d) |
The
failure of the Tenant to meet its obligations as they become due,
the
adjudication of the Tenant as a bankrupt, the making by Tenant of
a
general assignment for the benefit of creditors, or the taking by
Tenant
of the benefit of any insolvency act, or the appointment of a trustee
or
receiver for Tenant’s property;
|
| (e) |
The
failure of Tenant to obtain a gaming license within two years from
the
Commencement Date, or to thereafter have a gaming license in full
force
and effect at all times during the term hereof; or
|
| (f) |
The
vacancy or desertion of the premises by Tenant for a period of more
than
thirty (30) days, unless such vacancy is the result of a Force Majeure
(as
defined herein) pursuant to Section
26.
|
22.2. Notice:
Opportunity to Cure.
Upon
the occurrence of any default other than as described in Section 22.1 (a) and
22.1 (b), if Tenant fails to cure such other default or defaults within thirty
(30) days after Landlord gives Tenant written notice thereof, such other uncured
default or defaults shall also become an event of default (collectively, each
occurrence an “Event
of Default”);
except that if any such other default is of a character that required additional
time to be cured, such other default shall not become an Event of Default if
Tenant
19
diligently
commences in good faith to cure such other default upon receipt of the notice
specifying the nature of such other default and Tenant thereafter continuously
and diligently attempts to cure such other default.
22.3. Remedies.
If an
Event of Default shall have occurred, Landlord shall have the right to take
any
or all of the following actions:
| (a) |
Give
Tenant written notice of Landlord’s termination of this Lease. Upon the
giving of such notice, the Lease and the estate hereby granted shall
expire and terminate on such date as fully and completely and with
the
same effect as if such date were the date herein fixed for the expiration
of the Lease, all rights of Tenant hereunder shall expire and
terminate;
|
| (b) |
The
Landlord may, without terminating this Lease, reenter or repossess
the
Premises, by force, unlawful entry and detainer proceedings or otherwise,
and dispossess and remove Tenant or other occupants therefrom, and
may
relet all or part of the Premises as Tenant’s agent, and Tenant shall pay
Landlord the difference between the rent due for the remaining term
as of
the time of reentry or repossession and any amount received or to
be
received under such reletting for the remaining
term;
|
| (c) |
In
addition to any other legal remedy, Landlord may enter on and into
the
Premises and cure any then uncured Event of Default at the expense
and for
the account of Tenant. Any expenses, liabilities, penalties, or other
damages of any kind incurred by Landlord in such action, including
reasonable attorneys’ fees, shall be immediately due and payable by Tenant
to Landlord as Additional Rent due hereunder;
|
| (d) |
Landlord
may obtain any manner of equitable relief in order to compel Tenant
to
observe and perform its obligations
hereunder.
|
22.4. Additional
Rights of Landlord.
22.4.1. No
right
or remedy hereunder shall be exclusive of any other right or remedy, but shall
be cumulative and in addition to any other right or remedy hereunder or now
or
hereafter existing. Failure to insist upon the strict performance of any
provision hereof or to exercise any option, right, power or remedy contained
herein shall not constitute a waiver or relinquishment thereof for the future.
Receipt by Landlord of any Initial Rent, Base Rent, Percentage Rent, Additional
Rent or other sums payable hereunder with knowledge of the breach of any
provision hereof shall not constitute waiver of such breach, and no waiver
by
Landlord of any provision hereof shall be deemed to have been made unless made
in writing specifying the matters waived. Landlord shall be entitled to
injunctive relief in case of the violation, or attempted or threatened
violation, of any of the provisions hereof, or to any other remedy allowed
to
Landlord by law or equity.
20
22.4.2. Except
as
otherwise provided herein, Tenant hereby waives and surrenders for itself and
all those claiming under it, including creditors of all kinds, (i) any right
and
privilege which it or any of them may have to redeem the Premises or to have
a
continuance of this Lease after termination of Tenant’s right of occupancy by
order or judgment of any court or by any legal process or writ, or under the
terms of this Lease, or after the termination of the Lease as herein provided,
and (ii) the benefits of any law which exempts property from liability for
debt
or for attachment or distress for rent.
22.4.3. If
Tenant
shall be in default in the performance of any of its obligations hereunder,
Tenant shall pay to Landlord, on demand, all expenses incurred by Landlord
as a
result thereof, including reasonable attorneys’ fees and expenses (including
those incurred in connection with any appellate proceedings). If Landlord shall
be made a party to any litigation commenced against Tenant and Tenant shall
fail
to provide Landlord with counsel approved by Landlord and pay the expenses
thereof, Tenant shall pay all costs and reasonable attorneys’ fees and expenses
incurred by Landlord in connection with such litigation (including fees and
expenses incurred in connection with any appellate proceedings).
23. Landlord’s
Defaults and Tenant's Remedies.
23.1. Landlord
Default.
The
occurrence of any of the following shall be a "Landlord
Default"
hereunder:
| (a) |
The
breach of any representation or warranty made by Landlord in this
Lease;
or
|
| (b) |
The
failure of Landlord
to timely perform any other obligations or keep and perform any other
covenants hereunder within thirty (30) days of the date of notice
that
such obligations or covenants have not been performed or complied
with,
provided that if such default cannot reasonably be cured within such
thirty (30) day period, such period of thirty (30) days shall be
extended
for so long as Landlord is diligently prosecuting action reasonably
calculated to cure such default.
|
23.2. Tenant's
Remedies.
Except
as otherwise provided for herein, upon the occurrence of a Landlord Default,
Tenant shall have the right to exercise any remedy available at law or in
equity.
23.3. Landlord
Cure.
Anything to the contrary in this Lease notwithstanding, and provided that an
Event of Default by Landlord has not occurred or has occurred but is not
continuing hereunder, Landlord and Tenant agree that if Tenant fails to perform
any of its obligations under this Lease, Landlord shall have the right (but
not
the obligation) as well as any other right provided in this Lease, at its option
and after the expiration of thirty (30) days after written notice from Landlord
to Tenant, to do or cause to be done such obligation on behalf of Tenant, and
to
charge Tenant the actual cost(s) related thereto, which amount(s) will be due
to
be paid by Tenant to Landlord within thirty (30) days after notice thereof
has
been given by Landlord to Tenant.
21
24. Estoppel
Certificates.
24.1. Landlord’s
Estoppel Certificate.
Landlord shall, without charge, from time to time and at reasonable times,
within thirty (30) business days after request by Tenant or any party who holds
a mortgage or deed of trust upon Tenant’s leasehold interest in the Premises,
certify in writing to the effect that this Lease is unmodified and in full
force
and effect (or, if there shall have been modifications, stating the
modifications), the date to which all rent and other charges have been paid,
the
expiration date of the Lease, and whether, to the best knowledge of the person
executing such certificate on behalf of Landlord, any default by Tenant has
occurred; and if so, the notice shall specify such default to the extent of
the
knowledge of the person executing the certificate.
24.2. Tenant’s
Estoppel Certificate.
Tenant
shall, without charge from time to time and at reasonable times, within thirty
(30) business days after request by Landlord, certify in writing to Landlord
or
any other person or entity specified by Landlord: (i) that this Lease is then
unmodified and in full force (or, if there have been any modifications, stating
the modifications); (ii) stating whether there are then any existing setoffs
or
defenses against the enforcement of any of the provisions of this Lease and
any
modifications hereof upon the part of Tenant to be performed or complied with,
and, if so, specifying the same; and (iii) the dates to which rent and other
charges hereunder have been paid in advance.
25.
Condemnation.
25.1. Total
Taking.
If the
entire Premises shall be taken by the exercise of the right of eminent domain
for any public or
quasi-public improvement or use, this Lease and the term hereby granted shall
then expire, on the date when title to the Premises so taken shall vest in
the
appropriate authority or on the date when any possession is required to be
surrendered, whichever is later.
25.2. Partial
Taking.
If (i)
so substantial a portion of the Premises or any building or improvements thereon
shall be so taken as to make same or the remaining portion of the Premises
unusable for the purposes to which the Premises shall then be devoted; or (ii)
there is a permanent deprivation of access to the streets or highways (permanent
being defined as a continuous period in excess of twelve months); then Tenant
shall have the right to cancel or terminate this Lease by providing written
notice to Landlord at least sixty (60) days prior to the date when title to
the
portions so taken shall vest in the appropriate authority or, at Tenant's
option, on the date physical possession is required to be surrendered, and
thereupon, this Lease shall terminate and neither party hereunder shall have
any
obligation to the other under this
Lease.
25.3. Rights.
On such
entire or partial taking, Landlord and Tenant shall pursue, in their respective
individual and separate names and rights, unless otherwise required by law,
such
remedies and make such claims as they may have against the authority exercising
such right of eminent domain or other lawful taking as if this Lease and the
term hereof had not expired (whether or not such expiration shall have occurred
on account of such taking) and for the purpose of determining the respective
rights and remedies of the parties, or for the purpose of an equitable
apportionment of the award for damages if made to the Landlord and
Tenant
22
jointly,
or if made to Landlord or Tenant, Landlord shall be deemed to be the owner
of
the land constituting the Premises (subject to Tenant's leasehold estate
therein) and Tenant shall be deemed to be the owner of the leasehold estate
created hereby and the buildings and all other improvements situated upon
said
Premises (and the term of this Lease shall be deemed to include all available
renewal terms).
26. Effect
of Unavoidable Delays.
26.1. Force
Majeure.
The
provisions of this Section 26 shall only be applicable if there shall occur,
during the Lease, any of the following: Acts of God, acts of governmental
authorities, governmental restrictions, moratoriums, regulations, failures
to
act by governmental authorities with respect to licenses, applications, permits
or other approvals necessary to comply with terms and conditions of this Lease,
enemy or hostile governmental action, civil commotion, insurrection, revolution,
sabotage, fire or other casualty, or other conditions beyond the control of
the
Tenant (a "Force
Majeure”).
26.2. Lease
Obligations.
If
Tenant shall, as the result of any such Force Majeure, fail to punctually
perform a Lease obligation other than Tenant’s obligations to pay Base Rent,
Percentage Rent, or other monetary payments required under this Lease within
the
time limit provided under this Lease, then such time limit shall be deemed
extended for a period equal to the duration of such Force Majeure, provided
that
within thirty (30) days after the happening of any event for which Tenant shall
be entitled to an extension hereunder, Tenant shall send to Landlord written
notice describing such event. However, in no event shall a Force Majeure extend
or relieve Tenant from a duty or obligation for longer than a period of twelve
(12) consecutive months, any provisions of this Section 26 to the contrary
notwithstanding.
27. Protection
against Lien Claims.
All
work on the Isle Project shall be performed by Tenant in such a manner that
the
Premises will remain free and clear at all times of all liens and encumbrances
of any nature except for taxes not yet due and payable and liens created by
persons for whom payment is not the responsibility of the Tenant. Tenant shall
not be required to pay any such lien if Tenant is diligently pursuing in good
faith, the existence, amount or validity thereof by appropriate proceedings.
If
Tenant desires to contest any such matter, Tenant shall provide security as
is
required by law, if any, by irrevocable letter of credit, surety bond, or other
security satisfactory to Landlord, in order to insure ultimate payment of such
lien and to prevent any sale or forfeiture of the Premises or any portion
thereof. Subject to the foregoing, Tenant will promptly pay and discharge all
claims and liens in connection with the Isle Project.
28. Mineral
Non-Disturbance.
Landlord hereby conveys and releases unto Tenant and its successors and assigns
all rights which it possesses to use the surface of the Land for the drilling,
mining, exploration, development, and production of oil, gas, and other minerals
of every kind, nature, and character, in, on and under the Land. Landlord
further covenants and agrees that any lease or leases of the Land by Landlord
hereafter shall contain a clause which shall prohibit the use of the surface
of
the Land for the conduct of oil, gas, and other mineral development activity.
Landlord hereby agrees it will not exercise its respective rights to mineral
interest in, on, and under the Land in any way that will interfere with the
use
of the surface of the Land by Tenant, its successors and assigns. This Section
28 shall constitute a covenant running with the land and shall be binding upon
the Landlord, its successors, assigns, and legal
23
representatives
as the case may be, and shall inure to the benefit of the Tenant and its
successors, assigns, lenders, mortgagees, tenants, and all persons acquiring
an
interest in and to the Premises. This covenant running with the land will
be
placed of record pursuant to Section 3 hereof.
29. Holdover.
If,
with the permission and written consent of Landlord, the Tenant shall hold
over
as a Tenant after the expiration of the then existing Lease term, then such
tenancy shall be deemed to be on a month-to-month basis on the same terms and
conditions in effect immediately prior to the expiration of the
Lease.
30. Partial
Invalidity.
If any
term, covenant, condition, or provision of this Lease or the application thereof
to any person or circumstance shall, at any time or 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 this Lease
is
held invalid or unenforceable, shall not be affected thereby, and each term,
covenant, condition, and provision of this Lease shall be valid and be
enforceable to the fullest extent permitted by law.
31. Written
Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given if and when received by the respective parties at
the
below addresses (or at such other address as a party may hereafter designate
for
itself by notice to the other party and with required copy as required hereby).
From and after the Base Rent Commencement Date, all notices and communications
to Tenant may also be given by leaving same at the Premises during business
hours.
If
to
Landlord:
Family
Lands L.P.
c/o
Pine
Hills, Inc.
0000
Xxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxx, XX
With
a
required copy to:
Butler,
Snow, O'Xxxx Xxxxxxx & Xxxxxxx, XXXX
XxXxxxx
Xxxxx, 00xx
Xxxxx
000
Xxxx
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attention:
Xxx X. Xxxxxxx
If
to
Tenant:
IOC
Mississippi, Inc.
0000
Xxxxx Xxxxx Xxxx #X-0
Xxxxxx,
XX 00000
Attention:
Xxxx Xxxxx
24
With
a
required copy to Guarantor:
Isle
of
Capri Casino, Inc.
0000
Xxxxx Xxxxx Xxxx #X-0
Xxxxxx,
XX 00000
Attention:
Xxxx Xxxxx
32. Confidentiality.
During
the term of the Lease, Landlord and Tenant shall maintain in confidence and
shall cause their respective employees, officers, agents, agents, and advisors
to maintain in confidence all Financial and other Confidential Information
(defined herein below) regarding the other party and they shall not be revealed
to anyone except: (i) to the extent communication of such information is
required by law; (ii) to parties and their counsel in litigation in which the
Landlord and Tenant are parties relating to the Premises or other litigation
seeking enforcement, the rights, duties and obligations of the Landlord or
Tenant under this Lease; (iii) to effectuate a transaction or any financing
contemplated by this Lease, or (iv) to the MGC, the Securities Exchange
Commission and similar governmental authorities regulating or governing Landlord
or Tenant or the transactions contemplated by this Lease. “Financial and other
Confidential Information” includes such information obtained by the review of
financial statements, reports or audits required under this Lease.
33. Guaranty.
In
consideration of Landlord granting this Lease to Tenant, Isle of Capri Casino,
Inc. (“Guarantor”)
does
hereby guarantee all and singular of the obligations and duties of the Tenant
under this Lease. The obligations, covenants, agreements and duties of the
Guarantor under this Lease shall not be affected or impaired by (a) any
assignment or transfer in whole or in part of any of the Lease or the Premises
by the Landlord or the Tenant without notice to the Guarantor (other than as
set
forth in Section 13 hereof), or (b) any waiver by the Landlord of the
performance of observance by the Tenant or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Lease, or (c) any
indulgence in, or the extension of the time for, payment by the Tenant or any
other guarantor of any amounts payable under or in connection with this Lease
or
in any other instrument or agreement relating to this Lease or of the extension
of time for performance by the Tenant or any other guarantor of any other
obligations under or arising out of any of the foregoing or the extension or
renewal thereof, or (d) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Tenant or any other
guarantor set forth in any of the foregoing, or (e) the voluntary or involuntary
sale or other disposition of all or substantially all the assets of the Tenant
or any other guarantor (subject to Section 13 hereof), or (f) the
insolvency, bankruptcy or other similar proceedings affecting the Tenant or
any
such other guarantor or any assets of the Tenant or any such other guarantor.
34. Tenant’s
Finance of Landlord’s Purchase of Additional Land.
In the
event that Landlord shall desire to enter into any contract from time to time
to
purchase any land located within two (2) miles of the boundary of Landlord’s
Adjacent Property, then Landlord shall have the option with respect to each
such
contract to request an acquisition loan from Tenant in an amount equal to the
purchase price thereunder for the purpose of purchasing such land, provided
that
the Landlord provides written notice to the Tenant pursuant to the terms hereof
of its election to finance such purchase with a loan from the Tenant. Such
notice shall include a complete copy of the proposed purchase contract,
Landlord’s proposed use of such land, and a
25
description
of the purchase price to be paid for the land to be acquired by Landlord.
Within
three (3) days following Tenant’s receipt of such notice, Tenant shall notify
Landlord of Tenant’s election to provide or not provide such loan. In the event
Tenant elects to provide such loan, then on or before the closing date under
such purchase contract, the Tenant will advance to the Landlord the purchase
price set forth in the notice as a purchase money loan for such land, pursuant
to loan documents mutually acceptable to Landlord and Tenant. Landlord shall
execute in favor of Tenant at closing a non-recourse promissory note (an
“Acquisition
Note”)
in the
principal amount of the funds advanced by Tenant, bearing interest at the
rate
of eight percent (8%) per annum, and being payable by Landlord to Tenant
in
periodic installments equal to twenty-five percent (25%) of the periodic
installment of Percentage Rent payable from time to time by Tenant to Landlord
pursuant to this Lease. Tenant shall have the right to offset the installment
payments due from time to time by Landlord pursuant to the Acquisition Note
against amounts payable by Tenant to Landlord under this Lease. Each Acquisition
Note, if not sooner paid, shall be due and payable ten (10) years from the
date
thereof. Tenant covenants and agrees not to acquire any lands within two
(2)
miles of the boundary of Landlord’s Adjacent Property during the term of this
Lease. All land purchased by Landlord pursuant to acquisition loans furnished
hereunder by Tenant shall become part of Landlord’s Adjacent Property upon
acquisition by Landlord.
35. Mississippi
Gaming Commission.
Landlord and Tenant acknowledge and agree that certain provisions of this Lease,
including, without limitation, portions of Sections 4 and 13 hereof, are subject
to the approval of the Mississippi Gaming Commission (the “MGC”),
and
Landlord and Tenant each agree to use reasonable efforts to cooperate and assist
one another in obtaining all consents and approvals from MGC in connection
with
this Lease, including without limitation as to suitability. By execution hereof,
each party gives its full consent for the other party hereto to view and inspect
all documents submitted to the MGC or related governmental agencies relative
to
the contemplated Isle Project but excluding confidential information such as
personal financial statements.
36. Binding
on Successors and Assigns.
Except
as otherwise provided in this Lease, all covenants, agreements, provisions,
and
conditions of this Lease shall be binding on and inure to the benefit of the
parties hereto, their respective personal representatives, successors, and
assigns. This Lease, its provisions, and the parties' respective rights and
obligations cannot be modified, waived or changed unless evidenced by an
agreement in writing signed by Landlord and Tenant.
37. No
Broker.
Landlord and Tenant each covenant and agree with the other that neither has
retained or contracted with any realtor or person in regard to this Lease who
is
entitled to a commission or other brokerage fee in connection with the
consummation of the Lease. Landlord and Tenant each covenant and agree to defend
and hold the other harmless from any claim of any such person for any commission
or other compensation arising from the negotiation or execution of this Lease
to
the extent such claim is asserted to arise out of such claimant's contract
or
claim having been through the party to be charged.
38. No
Merger.
Notwithstanding any provision of this Lease to the contrary, if at any time
or
times during the term of this Lease or any renewal or extension hereof, Landlord
and Tenant shall be the same person, party, or entity, Landlord's and Tenant's
interests shall remain
26
separate
and distinct, and shall not be merged into one estate, so as to cancel,
terminate, or extinguish this Lease by law or otherwise.
39. Captions.
The
captions of the Sections of this instrument are solely for convenience and
shall
not be deemed a part
of
this instrument for the purpose of construing the meaning thereof, or for any
other purpose.
40. No
Waiver.
No
waiver of any covenant or condition contained in this Lease or of any breach
of
any such covenant or condition shall constitute a waiver of any subsequent
breach of such covenant or condition by either party, or justify or authorize
the non-observance on any other occasion of the same or any other covenant
or
condition hereof of either party.
41. Interpretation.
This
Lease shall be governed by and construed in accordance with the law of the
State
of Mississippi, without giving any effect to any conflict of laws, Whenever
the
contents of any provision shall require it, the singular number shall be held
to
include the plural number, and vice versa. The neuter gender includes the
masculine and the feminine.
42. No
Joint Venture.
Any
intention to create a joint venture or partnership relation or principal agent
relationship between the parties hereto is expressly disclaimed.
43. Joint
Work Project.
This
Lease is the joint work product of the duly authorized representatives of the
Landlord and Tenant and, accordingly, in the event of ambiguity, no inferences
shall be drawn against either party,
44. Entire
Agreement.
This
Lease contains the entire agreement of the parties hereto with respect to the
letting and hiring of the Premises described above and this Lease may not be
amended, modified, released, or discharged, in whole or in part, except by
an
instrument in writing signed by the parties hereto, or their respective
successors or assigns.
45. Landlord
Consents.
When
the Landlord’s consent is required hereunder, the Landlord agrees not to
unreasonably withhold, condition or delay such consent.
(Signatures
appear on following page)
27
LANDLORD:
FAMILY
LANDS, L.P.
a
Mississippi limited partnership
By: Pine
Hills, Inc.
a
Delaware corporation, its general partner
By: /s/Xxxxxxx
Xxxxxxx, IV________________
XXXXXXX
XXXXXXX, XX
Its: President
TENANT:
IOC
MISSISSIPPI, INC.
By: /s/Xxxxxxx
X. Guida___________________
XXXXXXX
X. XXXXX
Its: Senior
Vice President
GUARANTOR:
ISLE
OF
CAPRI CASINO, INC.
a
Delaware corporation
By: /s/Xxxxxxx
X. Guida___________________
XXXXXXX
X. XXXXX
Its: Senior
Vice President
28
EXHIBIT
A
Legal
Description
See
attached.
29
EXHIBIT
A
30
EXHIBIT
B
Memorandum
of Lease
See
attached.
31
Prepared
by:
Butler,
Snow, O'Mara, Xxxxxxx & Xxxxxxx, PLLC
ATTN:
Xxx X. Xxxxxxx
17th
Floor, AmSouth Xxxxx
Xxxx
Xxxxxx Xxx 00000
Xxxxxxx,
Xxxxxxxxxxx 00000-0000
(000)
000-0000
To
the Chancery Clerk of Xxxxxxxx County, Mississippi:
The
real property described herein is situated in the S½ of NW¼ and N½ of SW¼ of
Section 6, Township 8S, Range 13 W of the First Judicial District of Xxxxxxxx
County, Mississippi
MEMORANDUM
OF LEASE AND RESTRICTIONS
THIS
MEMORANDUM is executed and delivered by FAMILY LANDS L.P., a Mississippi limited
partnership (the "Landlord")
and
IOC MISSISSIPPI, INC., a Mississippi corporation (the "Tenant"),
pursuant to that certain Ground Lease, dated as of May, ___ 2006, between the
Landlord and the Tenant (as amended, modified and supplemented from time to
time, the "Lease").
In
consideration of the rents, covenants and agreements on the part of the Tenant
to be observed and performed under the Lease, the Landlord has leased and let
unto the Tenant that certain parcel of land lying and being situated in Xxxxxxxx
County, Mississippi, and more particularly described on Exhibit A
attached
hereto (the "Premises"),
under
the terms and conditions of the Lease which provides in pertinent part the
following:
1. Term
and Renewal Option.The
initial term of the Lease is for a period of five (5) years commencing as of
the
expiration of the Development and Permitting Period (as defined in the Lease
and
which shall expire no later than ____________, 200_), with options to renew
for
up to eighteen (18) successive five-year terms and one (1) successive final
four-year term.
32
2. Use
of
Premises.
The
Premises shall be used by the Tenant for the purpose of conducting and offering
casino gaming, entertainment, hotel, dining, retail, parking, recreational
and
for related purposes as provided in the Lease. Tenant shall not construct on
the
Premises a retail facility, restaurant, hotel or other commercial development
that is not contained within or physically connected to the primary casino
facility on the Premises.
3. Use
of
Landlord’s Adjacent Property.
The
real property of Landlord described in Exhibit
E
attached
hereto (“Landlord’s
Adjacent Property”)
shall
be restricted to uses permitted under A-1, X-0, X-0, X-0, X-0, X-0, X-0,
C-2 and
C-3
zoning under the Xxxxxxxx County, Mississippi zoning ordinances as in effect
on
the date hereof. The restrictions in this Section 3 shall expire on the
expiration or earlier termination of the Lease; provided this restriction shall
not expire for twenty-five (25) years from the Lease commencement date in the
event Tenant acquires title to the Premises pursuant to the terms of the
Lease.
4. Mineral
Non-Disturbance.
Landlord
hereby conveys and releases unto Tenant and its successors and assigns all
rights which it possesses to use the surface of the Premises for any purpose,
including the drilling, mining, exploration, development, and production of
oil,
gas, and other minerals of every kind, nature, and character, in, on and under
the Premises. Landlord further covenants and agrees that any lease or leases
of
the Premises hereafter made by Landlord shall contain a clause which shall
prohibit the use of the surface of the Premises for the conduct of oil, gas,
and
other mineral development activity. This Section 4 shall constitute a covenant
running with the land for the benefit of the Tenant, its successors, and
assigns.
5. Exclusivity.
During
the term of the Lease, Landlord will not utilize, or voluntarily allow any
third
party to utilize, any portion of Landlord’s Adjacent Property, in connection
with any gaming operation other than the Isle Project or another gaming project
33
developed
by the Tenant. This Section 5 is contingent on Tenant meeting certain conditions
to maintain exclusivity as provided in the Lease.
This
is a
memorandum of certain provisions of the Lease and not a restatement thereof.
In
the event of any conflict between this Memorandum of Lease and the provisions
of
the Lease, the provisions of the Lease shall control.
-
LANDLORD
-
FAMILY
LANDS L.P.
a
Mississippi limited partnership
By: Pine
Hills, Inc.,
a
Delaware corporation, its General Partner
By:
XXXXXXX
XXXXXXX, XX
Its
President
-
TENANT
-
IOC
MISSISSIPPI, INC.,
a
Mississippi Corporation
By:
XXXXXXX
X. XXXXXXX
Its:
President
34
STATE
OF
_______________________
COUNTY
OF
_____________________
Personally
appeared before me, the undersigned authority in and for the said County and
State, on this ___ day of May, 2006, within my jurisdiction, the within named
XXXXXXX XXXXXXX, XX, who acknowledged to me that he is President of PINE HILLS,
INC. a Delaware corporation which is the general partner of FAMILY LANDS L.P.,
a
Mississippi limited partnership, and that for and on behalf of said corporation
as general partner of said limited partnership, and as the act and deed of
said
corporation as general partner of said limited partnership, and as the act
and
deed of said limited partnership, he executed the above and foregoing
instrument, after first having been duly authorized by said corporation and
said
limited partnership so to do.
__________________________________________
NOTARY
PUBLIC
My
Commission Expires:
________________________________
[AFFIX
NOTARIAL SEAL]
STATE
OF
COUNTY
OF
Personally
appeared before me, the undersigned authority in and for the said County and
State, on this
day of
May, 2006, within my jurisdiction, the within named XXXXXXX X. XXXXXXX, who
acknowledged that he is President of IOC MISSISSIPPI, INC., a Mississippi
corporation, and that for and on behalf of the said corporation, and as its
act
and deed, he executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY
PUBLIC
My
Commission Expires:
[AFFIX
NOTARIAL SEAL]
35
EXHIBIT
C
Commencement
of Operations Certificate
See
Attached
36
This
certificate of commencement of gaming operations (the “Certificate”)
is
executed the ___ day of ______, 2006 to memorialize the date on which gaming
operations or activities have commenced on the Premises. The parties agree
the
Base Rent shall be adjusted to reflect any increase in the Price Index from
the
Adjustment Date to the date of execution hereof pursuant to Section 4.5.1 of
the
Lease.
All
capitalized terms not defined herein shall have the meaning as set forth in
the
Lease.
IN
WITNESS WHEREOF,
the
parties have caused this certificate to be executed on the date specified
herein.
-
LANDLORD -
FAMILY
LANDS L.P.
a
Mississippi limited partnership
By: PINE
HILLS, INC.
a
Delaware corporation, its General Partner
By:
XXXXXXX
XXXXXXX, XX
Its
President
-
TENANT -
IOC
MISSISSIPPI, INC.
a
Mississippi corporation
By:
XXXXXXX
X. XXXXXXX
Its:
President
37
EXHIBIT
D
Permits
and Approvals
| 1. |
NPDES
Stormwater Discharge
Permit.
|
Issuing
agency: State
of
Mississippi Department of Environmental Quality.
Requirement: Construction-related
erosion control.
| 2. |
Construction
Permit for Potable Water Supply
(well).
|
Issuing
agency: State
of
Mississippi Department of Environmental Quality.
Requirement: Potable
water well.
| 3. |
Sanitary
Sewer Construction
Approval.
|
Issuing
agency: State
of
Mississippi Department of Environmental Quality.
Requirement: Construction
of sanitary sewer forcemain, pumpstation, and connection.
| 4. |
NPDES
Permit Modification for Wastewater Treatment Plant (Water Pollution
Control Permit).
|
Issuing
agency: State
of
Mississippi Department of Environmental Quality.
Requirement: Increased
capacity of West Xxxxxxxx County Water & Sewer District Wastewater Treatment
Plant.
| 5. |
Xxxxxxxx
County Zoning Approvals:
|
| a. |
Master
Plan Approval (Section 412.02).
|
| b. |
Height
Limitation Variance (Section 416 - Table
of Areas and Dimensional Requirements).
|
| 6. |
Xxxxxxxx
County Building Permit.
|
| 7. |
Mississippi
Gaming Commission
Approvals:
|
| a. |
Gaming
Site Approval
|
| b. |
Site
Development Plan Approval
|
38
EXHIBIT
E
Landlord’s
Adjacent Property
Pine
Hills On-The-Bay Subdivisions #1, #2 and #3 are as shown on the Plats of Record
of said subdivisions in the office of the Chancery Clerk of Xxxxxxxx County,
Mississippi.
TOWNSHIP
7 SOUTH, RANGE 13 WEST:
|
Section
31:
|
All
that part of Blocks J and K lying in Section 00, Xxxxxxxx 0
Xxxxx, Xxxxx 13 West of Pine Hills On-The-Bay Subdivision #3, less
and except that part of Block J which is part of those lands
described in that certain deed recorded in Book 623, Pages 500-502 of
the Record of Deeds of Xxxxxxxx
County.
|
|
Section
32:
|
All
that part of Blocks F, H, I, J, K and L lying in Section 00, Xxxxxxxx
0 Xxxxx, Xxxxx 13 West of Pine Hills On-The-Bay Subdivision #3,
less Xxx 0 xx Xxxxx X xx xxxx Xxxx Xxxxx Xx-Xxx-Xxx Subdivision
#3.
|
TOWNSHIP
8 SOUTH, RANGE 13 WEST:
|
Section
5:
|
All
that part of Blocks K and L lying in Section 0, Xxxxxxxx 0 Xxxxx,
Xxxxx 13 West of Pine Hills On-The-Bay Subdivision
#3.
|
|
Section
6:
|
All
of Section 6, less and except the
following:
|
| 1. |
All
lands described in that certain deed recorded in Book 623,
Pages 500-502 of the Record of Deeds of Xxxxxxxx
County.
|
| 2. |
All
lands which are a part of the Pine Hills On-The-Bay Subdivision #1
and
#2.
|
| 3. |
Those
lands conveyed to Xxxxxx Wood Preserving Co. and described in that
certain
deed recorded in Book 593, Pages 151-152 of the Record of Deeds
of Xxxxxxxx County.
|
| 4. |
Those
lands conveyed to X. X. Xxxxxx and described in that certain deed
recorded
in Book 478, Pages 534-535 of the Record of Deeds of Xxxxxxxx
County.
|
| 5. |
Those
lands conveyed to Xxxxxxx X. Xxxxx and his wife, Xxxx Xxxxx Xxxxx
and
described in that certain deed recorded in Book 478,
Pages 533-534 of the Record of Deeds of Xxxxxxxx
County.
|
| 6. |
Those
lands conveyed to Xxxxxx X. XxXxxxx and his wife, Xxxxx X. XxXxxxx
and described in that certain deed recorded in Book 478,
Pages 536-537 of the Record of Deeds of Xxxxxxxx
County.
|
39
| 7. |
Those
lands conveyed to Xxxxxx Wood Preserving Co. and described in that
certain
deed recorded in Book 629, Pages 62-65 of the Record of Deeds of
Xxxxxxxx County.
|
| 8. |
Those
lands conveyed to Xxx. Xxxxx Xxxxxxx Xxxxxxx and described in that
certain deed recorded in Book 654, Pages 565-567 of the Record
of Deeds of Xxxxxxxx County.
|
Pinehills
On-The-Bay Subdivision #1 as shown by Plat of Record in the Chancery Clerk’s
office.
|
Block
4:
|
All
of Block 4.
|
|
Block
5:
|
Lots
1 through 12, inclusive; Lots 17 through 21, inclusive; and Lots
23
through 30, inclusive.
|
|
Block
6:
|
Lots
1 through 10, inclusive; Lots 12 through 17, inclusive; and Lots
19 and
20.
|
|
Block
7:
|
Lots
1 through 3, inclusive; and that part designated as
Park.
|
|
Block
8:
|
Lots
1 through 9, inclusive; and Lots 12 through 17,
inclusive.
|
|
Block
9:
|
All
of Block 9.
|
|
Block
10:
|
Lots
1 through 10, inclusive; and Lots 13 through 22,
inclusive.
|
|
Block
11:
|
Lots
1 through 14, inclusive; Lot 16; Lots 18 and 19; and Lots 21 through
37,
inclusive.
|
|
Block
12:
|
Lot
1; Lots 3 through 17, inclusive; Lots 19 throguh 24, inclusive; and
Lot
26.
|
|
Block
18:
|
Lots
1 through 16, inclusive; and Lots 18 through 21,
inclusive.
|
|
Block
19:
|
Lots
3 through 19, inclusive.
|
Pinehills
On-The-Bay Subdivision #2 as shown by Plat of Record in the Chancery Clerk’s
Office.
|
Block
3:
|
Xxx
0 xxx Xxx 0.
|
XXXX
XXX XXXXXX THE LAND DESCRIBED ON EXHBIIT A
40
EXHIBIT
F
Landlord’s
Entire Property
Pine
Hills On-The-Bay Subdivisions #1, #2 and #3 are as shown on the Plats of Record
of said subdivisions in the office of the Chancery Clerk of Xxxxxxxx County,
Mississippi.
TOWNSHIP
7 SOUTH, RANGE 13 WEST:
|
Section
31:
|
All
that part of Blocks J and K lying in Section 00, Xxxxxxxx
0 Xxxxx, Xxxxx 13 West of Pine Hills On-The-Bay Subdivision #3,
less and except that part of Block J which is part of those lands
described in that certain deed recorded in Book 623, Pages 500-502 of
the Record of Deeds of Xxxxxxxx
County.
|
|
Section
32:
|
All
that part of Blocks F, H, I, J, K and L lying in Section 00, Xxxxxxxx
0 Xxxxx, Xxxxx 13 West of Pine Hills On-The-Bay Subdivision #3,
less Xxx 0 xx Xxxxx X xx xxxx Xxxx Xxxxx Xx-Xxx-Xxx Subdivision
#3.
|
TOWNSHIP
8 SOUTH, RANGE 13 WEST:
|
Section
5:
|
All
that part of Blocks K and L lying in Section 0, Xxxxxxxx 0 Xxxxx,
Xxxxx 13 West of Pine Hills On-The-Bay Subdivision
#3.
|
|
Section
6:
|
All
of Section 6, less and except the
following:
|
| 1. |
All
lands described in that certain deed recorded in Book 623,
Pages 500-502 of the Record of Deeds of Xxxxxxxx
County.
|
| 2. |
All
lands which are a part of the Pine Hills On-The-Bay Subdivision #1
and
#2.
|
| 3. |
Those
lands conveyed to Xxxxxx Xxxx Preserving Co. and described in that
certain
deed recorded in Book 593, Pages 151-152 of the Record of Deeds
of Xxxxxxxx County.
|
| 4. |
Those
lands conveyed to X. X. Xxxxxx and described in that certain deed
recorded
in Book 478, Pages 534-535 of the Record of Deeds of Xxxxxxxx
County.
|
| 5. |
Those
lands conveyed to Xxxxxxx X. Xxxxx and his wife, Xxxx Xxxxx Xxxxx
and
described in that certain deed recorded in Book 478,
Pages 533-534 of the Record of Deeds of Xxxxxxxx
County.
|
| 6. |
Those
lands conveyed to Xxxxxx X. XxXxxxx and his wife, Xxxxx X. XxXxxxx
and described in that certain deed recorded in Book 478,
Pages 536-537 of the Record of Deeds of Xxxxxxxx
County.
|
41
| 7. |
Those
lands conveyed to Xxxxxx Xxxx Preserving Co. and described in that
certain
deed recorded in Book 629, Pages 62-65 of the Record of Deeds of
Xxxxxxxx County.
|
| 8. |
Those
lands conveyed to Xxx. Xxxxx Xxxxxxx Xxxxxxx and described in that
certain deed recorded in Book 654, Pages 565-567 of the Record
of Deeds of Xxxxxxxx County.
|
Pinehills
On-The-Bay Subdivision #1 as shown by Plat of Record in the Chancery Clerk’s
office.
|
Block
4:
|
All
of Block 4.
|
|
Block
5:
|
Lots
1 through 12, inclusive; Lots 17 through 21, inclusive; and Lots
23
through 30, inclusive.
|
|
Block
6:
|
Lots
1 through 10, inclusive; Lots 12 through 17, inclusive; and Lots
19 and
20.
|
|
Block
7:
|
Lots
1 through 3, inclusive; and that part designated as
Park.
|
|
Block
8:
|
Lots
1 through 9, inclusive; and Lots 12 through 17,
inclusive.
|
|
Block
9:
|
All
of Block 9.
|
|
Block
10:
|
Lots
1 through 10, inclusive; and Lots 13 through 22,
inclusive.
|
|
Block
11:
|
Lots
1 through 14, inclusive; Lot 16; Lots 18 and 19; and Lots 21 through
37,
inclusive.
|
|
Block
12:
|
Lot
1; Lots 3 through 17, inclusive; Lots 19 throguh 24, inclusive; and
Lot
26.
|
|
Block
18:
|
Lots
1 through 16, inclusive; and Lots 18 through 21,
inclusive.
|
|
Block
19:
|
Lots
3 through 19, inclusive.
|
Pinehills
On-The-Bay Subdivision #2 as shown by Plat of Record in the Chancery Clerk’s
Office.
|
Block
3:
|
Lot
6 and Lot 7.
|
42