Exhibit 10.17
GROUND SUBLEASE
THIS GROUND SUBLEASE is entered into as of the 20th day of August,
1996, by the CITY OF LAWRENCEBURG, INDIANA, an Indiana municipality (the
"City"), and INDIANA GAMING COMPANY, L.P., an Indiana limited partnership
("Tenant"), and in consideration of their mutual undertakings, the parties agree
as follows:
1. PREMISES. The City subleases to Tenant and Tenant subleases from the
City the land located in Dearborn County, Indiana, described in EXHIBIT A
attached hereto and incorporated herein by reference, and all rights,
privileges, easements and appurtenances benefiting, belonging or pertaining
thereto (the "Premises").
2. TERM. The term of this Sublease (the 'Term", which as used herein
includes the Initial Term and any and all Renewal Terms as hereinafter defined)
shall commence on the date (the "Commencement Date") that Tenant begins
operation of a riverboat gaming facility on the Premises in Dearborn County,
Indiana, pursuant to an "Owner's license" (the "License") for such activity as
defined in IND. CODE Section 4-33-2-15. As used herein, the phrase "Year 1" of
the Term shall be deemed to run from the first day of the calendar month
following the Commencement Date until the last day of the same month of the
following calendar year, with "Year 2" of the Term commencing on the first day
of the succeeding month. Each subsequent "Year" of the Term shall then commence
on the anniversary date of the commencement of Year 2. The initial term (the
"Initial Term") of this Sublease shall commence on the Commencement Date and
continue through Year 6. Thereafter, the Term of this Sublease will be
automatically extended for up to nine (9) renewal term periods of five (5) years
each (each such renewal period being hereinafter referred to as a "Renewal
Term"), unless Tenant, at least six (6) months prior to the end of the Initial
Term or the preceding Renewal Term, gives notice to the City of Tenant's intent
not to renew; PROVIDED, HOWEVER, that if Tenant gives such notice less than one
(1) year before the end of the Initial Term or such Renewal Term, then the
Initial Term or such Renewal Term as the case may be shall be automatically
extended for a period of one (1) year from the date of such notice. The City
hereby grants to Tenant the right to access the Premises and construct
Improvements (as hereinafter defined) thereon at such time as the License has
been issued to Tenant, notwithstanding the fact that such time period shall
precede the Commencement Date. Notwithstanding any other term or condition of
this Lease to the contrary, this lease shall terminate upon the earlier of (a)
the proper and effective termination of the Development Agreement by the City in
accordance with the terms of the Development Agreement and (b) fourteen (14)
days of the date on which any suspension, revocation or rescission of the
Certificate of Suitability or Gaming License of Tenant, as applicable, issued
pursuant to IND. CODE Sections 4-33-1 ET SEQ., becomes effective, whichever
first occurs; provided, however, if this Lease is terminated as a result of any
such suspension, revocation or rescission of the Certificate of Suitability or
Gaming License, as applicable, and the suspension, revocation or rescission of
the Certificate of Suitability or Gaming License, as applicable, is subsequently
stayed, terminated or cancelled, then this Lease shall thereupon automatically
and simultaneously be reinstated according to its terms and the City shall
return possession of the Premises to Tenant within fourteen (14) days of such
reinstatement in the same condition as received from Tenant.
3. RENT. For each Year of the Term, Tenant shall pay the City as rent for
the Premises the sum of $500,000 (the "Rent"). Pursuant to a certain Riverboat
Gaming
Development Agreement between The City of Lawrenceburg, Indiana, and The Indiana
Gaming Company, L.P., dated as of the 13th day of April, 1994, as amended (the
"Development Agreement"), Tenant has agreed to make certain Annual Payments (as
defined in the Development Agreement) to the City. During each Year of the Term
of this Sublease, the first $500,000 of the Annual Fee paid by Tenant to the
City during such Year shall be deemed to be payment of the Rent. In the event
this Sublease is terminated as herein provided prior to the end of any Year of
the Sublease, the City shall reimburse to Tenant the unearned portion of such
Rent as determined on a pro rata basis based on the total number of days
remaining in the Year of the Sublease.
4. IMPROVEMENTS ON THE PREMISES. The City hereby grants to Tenant the
right to access the Premises and construct Improvements, as hereinafter defined,
at such time as a "Certificate of Suitability" has been issued to Tenant, and
Tenant has obtained such other permits as may be required for such construction,
notwithstanding the fact that such time period may precede the Commencement
Date. Tenant shall have the right to construct, use and operate Improvements on
and under the Premises, to make additions thereto, and to alter, demolish,
relocate and reconstruct Improvements thereon and thereunder, provided, however,
that such construction or operation of Improvements do not preclude or
materially interfere with the ability of the Lawrenceburg Conservancy District
to maintain and provide adequate flood control. Such right and authority shall
include the right to modify, alter or breach the levee located within the area
of the Premises, provided, however, that (i) the plans for any work involving or
affecting the levee and related improvements shall be submitted to the
Lawrenceburg Conservancy District pursuant to the Master Lease, as defined
below, and (ii) all applicable governmental consents, approvals and permits have
been obtained. Tenant shall own and have title to all Improvements on the
Premises. Upon the expiration or earlier termination of this Sublease, Tenant
shall have the right to remove any Improvements from the Premises for a period
of one (1) year after the termination of this Lease; provided however, that upon
any such removal Tenant shall refill all excavations and restore the surface of
the Premises to a reasonably satisfactory condition. Title to any Improvements
not removed by Tenant within sixty (60) days after the termination of this
Sublease shall be deemed vested in the City. All Improvements constructed on the
Premises shall be constructed in a diligent and workmanlike manner and in
compliance with all applicable governmental regulations. As used herein,
"Improvements" means all buildings, docks, piers, structures, driveways,
walkways, fencing and other physical improvements made to, on or under the
Premises by Tenant and must include, at a minimum, those facilities required by
the Indiana Ganging Commission, including a three hundred room hotel; PROVIDED,
HOWEVER, that if Tenant abandons the land based facility, then ownership of such
facility and ownership of the furniture, fixtures and equipment located thereon
and required to operate such facility (but specifically excluding any gaming
equipment) shall vest in the City. The initial construction of the Improvements
must be completed within eighteen (18) months following Tenant's commencement of
riverboat gaming operations in Dearborn County, Indiana.
5. EASEMENTS. The City shall execute (or shall use its best efforts to
cause to be executed by the fee simple owner of the Premises, provided that such
effort does not cause, in the opinion of the City, any unreasonable financial
burden or expense on the City) such easements relating to the Premises as Tenant
reasonably deems necessary or appropriate to the enjoyment of its rights
hereunder, and the City shall execute (or shall use its best efforts to cause to
be executed by the fee simple owner of the Premises) such applications,
petitions and other
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instruments as may be required to enable Tenant to obtain, at Tenant's expense,
such approvals, permits, covenants or licenses reasonably necessary in its
judgment to permit the full exercise of its rights hereunder.
6. USE, COMPLIANCE WITH LAWS. The Premises shall be used by Tenant only
for the operation of its riverboat gaming business and related support
facilities. Tenant shall keep the Premises and Improvements in good order,
condition and repair, and shall conduct its business therefrom in a safe manner.
Tenant shall use and maintain the Premises and Improvements at all times in
compliance with all legal requirements and Tenant shall not commit waste
thereon.
7. CONDEMNATION. If during the Term of this Sublease the Premises or
Improvements, or any part thereof, shall at any time be taken or acquired by any
authority by exercise or threat of the power of eminent domain, as between the
City and Tenant, the condemnation award shall be divided as follows:
(a) The fee simple owner of the Premises shall be allowed the award
for the taking of the Premises exclusive of the Improvements and the
leasehold interest of Tenant; and
(b) Tenant shall be allowed that part of the award allowed for the
taking of the Improvements and the damage to its leasehold estate.
8. CITY'S REMEDY UPON DEFAULT. In the event Tenant at any time shall fail
to pay the Rent required hereunder within thirty (30) days after written notice
that the rent was not paid when due, or in the event that Tenant shall fail or
neglect to perform or observe any other covenant or condition herein contained
on Tenant's part to be performed or observed and such failure or neglect is not
cured within sixty (60) days (or such longer period as is reasonably necessary
to cure such failure or neglect) after written notice of such failure or neglect
from the City, the City, as its sole remedy hereunder, without further notice to
Tenant may terminate this Sublease and recover possession of the Premises from
Tenant; provided however, that if any default for which notice has been given as
aforesaid is remedied within the grace period applicable thereto as stated in
this Paragraph, then this Sublease shall be considered to be in full force and
effect the same as if no such default had occurred.
9. ATTORNEYS' FEES. Each party shall pay the other party's reasonable
legal costs and attorneys' fees incurred in successfully enforcing against the
other party any covenant, term or condition of this Sublease.
10. QUIET ENJOYMENT. If Tenant performs all of the covenants and
agreements herein provided to be performed on Tenant's part, Tenant shall at all
times have the peaceable and quiet enjoyment of possession of the Premises
without any manner of hindrance from the City or any parties lawfully claiming
by, through of under the City.
11. TAXES. The City shall pay all real property taxes, assessments and
other governmental charges levied upon the real estate constituting the
Premises; provided however, Tenant shall pay such portion of such taxes,
assessments and other governmental charges levied as a result of the
Improvements located on the Premises.
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12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises and
Improvements, together with any taxes thereon.
13. WARRANTIES. The City represents and warrants to Tenant that the City
has obtained a leasehold interest to the Premises pursuant to that certain
Ground Lease dated December 28, 1995, between the City and the Lawrenceburg
Conservancy District, a copy if which is attached hereto as EXHIBIT B (the
"Master Lease"). The City makes no warranties, express or implied, to Tenant
regarding title to the Premises except as specifically set forth in the
Development Agreement, including specifically Section 5.32 and Section 10.08 of
the Development Agreement. The City specifically disclaims any representation or
warranty concerning the authority of the Lawrenceburg Conservancy District to
enter into or carry out the terms of the Master Lease. However, the person,
executing this Sublease on behalf of the City is a duly elected officer of the
City and has been fully empowered by City to execute and deliver this Sublease.
The City represents and warrants that it has full capacity and authority under
Indiana law to sublease the Premises to Tenant and all necessary action for the
making of this conveyance has been taken and done. The City further represents
and warrants to Tenant that, to the best of its knowledge, the Premises:
(a) contain no facilities that are subject to reporting under Section
312 of the federal Emergency Planning and Community Right-to-Know Act of
1986 (42 U.S.C. Section 11022);
(b) is not the site of any underground storage tanks for which
notification is required under 42 U.S.C. Section 6991a or IND. CODE Section
13-7-20-13(8)(A); and
(c) is not listed on the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS) in accordance with
Section 116 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9616).
14. MASTER LEASE. This Sublease is subject in all respects to the terms
and conditions of the Master Lease. Landlord covenants and agrees that it will
observe and perform each of the covenants and agreements contained in the Master
Lease, and shall abide and be bound by each of the terms and provisions, of the
Master Lease and shall take no action, or fail to take any action, that would
constitute a default by the lessee thereunder. Tenant acknowledges that it has
received a copy of the Master Lease and acknowledges that its rights hereunder
are subordinate to the rights of the Lawrenceburg Conservancy District under the
Master Lease, including, but not limited to, the rights set forth in Paragraph
17 of the Master Lease.
15. GENERAL AGREEMENT OF PARTIES.
(a) SEVERABILITY. The invalidity of any provision of this Sublease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
(b) CAPTIONS. Paragraph and subparagraph captions are not a part
hereof.
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(c) MODIFICATIONS. This Sublease may be modified in writing only,
signed by the parties in interest at the time of the modification.
(d) NOTICES. Any notices to be given hereunder shall be deemed
sufficiently given when in writing and (a) actually served on the party to
be notified or (b) placed in an envelope directed to the party to be
notified at the following addresses and deposited in the United States mail
by certified or registered mail, postage prepaid:
1. If to Tenant:
The Indiana Gaming Company, L.P.
c/o Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxx Xxxx
Chairman and Chief Executive Officer
2. If to the City:
Mayor
Lawrenceburg City Administration Building
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Such addresses may be changed by either party by written advice as to the
new address given as above provided
(e) BINDING EFFECT; CHOICE OF LAW. This Sublease and the covenants
and agreements contained herein shall run with the land and shall bind the
parties, their personal representatives, successors and assigns. This
Sublease shall be governed by the laws of the State of Indiana.
(f) COUNTERPARTS. This Sublease may be executed in a number of
identical counterparts and if so executed, each such counterpart is deemed
an original for all purposes, and all such counterparts shall collectively
constitute one agreement.
(g) RECORDINGS. Either Tenant or the City shall, upon request of the
other, execute, acknowledge and deliver to the other a "short form"
Memorandum of Sublease for recording purposes in the form attached hereto
as EXHIBIT C.
(h) INDEMNITY. Tenant agrees to indemnify and hold harmless the City
against all claims, damages, liabilities, actions and attorneys' fees
arising from or related to the acts and omissions of Tenant in the
construction, operation and/or maintenance of the Improvements.
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16. INSURANCE. Tenant, at its expense, shall obtain and maintain property
and liability insurance coverage for the construction and operation of the
Premises in accordance with the requirements set forth in EXHIBIT D attached
hereto.
IN WITNESS WHEREOF, the City and Tenant have executed this Sublease as of
the day first set forth above.
INDIANA GAMING COMPANY, L.P.
By: The Indiana Gaming Company, its
general partner
By: /s/ J. Xxxxxx Xxxx
(signature)
J. Xxxxxx Xxxx, President
(printed name and title)
CITY OF LAWRENCEBURG, INDIANA
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Mayor
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STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared J. Xxxxxx Xxxx, the President of The Indiana
Gaming Company, as the general partner of Indiana Gaming Company, L.P., who
acknowledged the execution of the foregoing instrument for and on behalf of
said entity.
Witness my hand and notarial Seal this 20th day of August, 1996.
/s/ M. Xxxx Xxxxxx
M. Xxxx Xxxxxx, Notary Public
residing in Xxxxxxxx County,
Indiana
My Commission Expires:
February 23, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF DEARBORN )
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared Xxxxxx X. Xxxxxxx, the Mayor of the City of
Lawrenceburg, Indiana, who acknowledged the execution of the foregoing
instrument for and on behalf of said entity.
Witness my hand and notarial Seal this 19th day of August, 1996.
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Notary Public
residing in Dearborn County,
Indiana
My Commission Expires:
November 29, 1996
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EXHIBIT A
LEGAL DESCRIPTION
[Map of Premises]
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lots 1 and 2, and part of Xxx 0 xx Xxxxxx Xxxx'x Xxxxxxx (Slide
339) AND part of Section 14, Township 5 North, Range 1 West of the First
Principal Meridian located in the City of Lawrenceburg, Dearborn County,
Indiana, described as follows:
Commencing at a Southeasterly corner of Guard, Xxxx and Xxxxxx'x Addition (P.B.
3, P. 61) at the intersection of the Westerly line of platted Xxxxxxx Street
with the Southerly line of platted Xxxxxx Street; thence S 44 DEG.45'00"W along
the right-of-way of said Xxxxxxx Street 7.82 feet; thence S 45 DEG.15'00"E,
66.44 feet to the right-of-way of the Central Railroad of Indiana and the point
of beginning; thence along said right-of-way with the are of a curve to the
right having a radius of 536.01 feet an are distance of 21.83 feet, the long
chord of said are bears N 43 DEG.35'25"E a distance of 21.85 feet to the
right-of-way of the CSX Railroad; thence along said CSX right-of-way the
following three courses: thence N 44 DEG.45'00"E, 688.15 feet; thence with the
are of a curve to the left having a radius of 9582.30 feet an are distance of
87.17 feet, the long chord of said are bears N 44 DEG.29'22"E a distance of
87.17 feet; thence S 47 DEG.15'00"E, 42.01 feet; thence S 45 DEG.15'00"E 1215.87
feet to the Ohio River boundary between the States of Indiana and Kentucky, as
the same was determined by the Supreme Court; thence along said Ohio River
boundary the following six courses: thence S 41 DEG.29'33"W, 59.97 feet; thence
S 46 DEG.51'31"W, 298.39 feet; thence S 39 DEG.15'30"W, 104.26 feet; thence S 43
DEG.48'50"W, 304.54 feet; thence S 44 DEG.01'29"W. 213.22 feet; thence S 45
DEG.21'32"W, 138.79 feet; thence leaving said river N 45 DEG.13'00"W, 1142.92
feet to the right-of-way of said Central Railroad; thence along said Central
Railroad right-of-way with a curve to the right having a radius of 536.01 feet
an are distance of 348.55 feet, the long chord of said are bears N 23
DEG.46'09"E, 342.72 feet to the point of beginning.
Contains 32.074 acres.
EXHIBIT B
EXECUTED COPY OF THE MASTER LEASE
GROUND LEASE
THIS GROUND LEASE is entered into as of the 28th day of December, 1995, by
the LAWRENCEBURG CONSERVANCY district, a conservancy district established
pursuant to IND. CODE Section 13-3-3-1 ET SEQ. (the "Conservancy District"), and
the CITY OF LAWRENCEBURG, INDIANA, an Indiana municipality (the "City").
In consideration of their mutual undertakings, the parties agree as
follows:
1. PREMISES: The Conservancy District leases to City and City leases from
the Conservancy District the land located in Dearborn County, Indiana, described
in EXHIBIT A attached hereto and incorporated herein by reference, and all
rights, privileges, easements and appurtenances benefiting, belonging or
pertaining thereto (the "Premises").
2. TERM. The term or this Lease (the "Term", which as used herein
includes the Initial Term and any and all Renewal Terms as hereinafter defined)
shall commence on the date (the "Commencement Date") that Indiana Gaming
Company, L.P., (the "Subtenant") begins operation of a riverboat gaming facility
at the Premises pursuant to an "Owner's license" for such activity as defined in
IND. CODE Section 4-33-2-15. As used herein, the phrase "Year 1" of the Term
shall be deemed to run from the Commencement Date until the last day of the same
month of the following calendar year with "Year 2" of the Term commencing on the
first day of the succeeding month. Each subsequent "Year" of the Term shall then
commence on the anniversary date of the commencement of Year 2. The initial term
(the "Initial Term") of this Lease shall commence on the Commencement Date and
continue through Year 6. Thereafter, the Term of this Lease shall be
automatically extended for up to nine (9) renewal term periods of five (5) years
each (each such renewal period being hereinafter referred to as a "Renewal
Term"), unless City, at least six (6) months prior to the end of the Initial
Term or preceding Renewal Term, gives notice to the Conservancy District of
City's intent not to renew; provided, however, that if City gives such notice
less than one (1) year before the end of the Initial Term or such Renewal Term,
then the Initial Term or such Renewal Term, as applicable, shall be
automatically extended for a period of one (1) year from the date of such
notice. Notwithstanding the above termination provisions, in the event that
Subtenant loses its Owner's License, or is otherwise is in default under any
term or provision of its Development Agreement or sublease with City, and all
cure periods, if any, have expired, City shall have the right to terminate the
Lease by providing notice to Conservancy District of the City's intent to
terminate at least thirty (30) days prior to the end of any Year of the Term.
Upon such termination, City shall have no further liability or obligation to the
Conservancy District except as otherwise provided in paragraph 4 herein.
3. RENT. For each Year of the Term, City shall pay the Conservancy
District as rent for the Premises the sum of Five Hundred Thousand and 00/100
Dollars ($500,000) (the "Rent"), payable in advance in twelve (12) equal monthly
installments, each payable on or before the fifteenth (15) day of the month for
which it is due. In the event this Lease is terminated as herein provided prior
to the end of any Year of the Lease, the Conservancy District stall reimburse to
City the unearned portion of such Rent as determined on a pro rata basis on the
total number of days remaining in the Year of the Lease. Notwithstanding the
above obligation of the City to pay Rent to the Conservancy District, the
Conservancy District acknowledges and agrees that
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such obligation shall be conditioned upon and subject to the City's receipt of
the Annual Payment, as defined in the Development Agreement entered into by and
between City and Subtenant, from which Annual Payment the parties agree that the
Rent hereunder shall be paid, and Conservancy District hereby releases City from
any such obligation except to the extent of monies received by City under said
Annual Payment obligation.
4. IMPROVEMENTS ON THE PREMISES. The Conservancy District hereby grants
to City and Subtenant the right to access the Premises and construct
Improvements (as hereinafter defined) thereon at such time as a "Certificate of
Suitability" has been issued to Subtenant, notwithstanding the fact that such
time period shall precede the Commencement Date. City shall have the right to
construct, use and operate Improvements on and under the Premises, to make
additions thereto, and to alter, demolish, relocate and reconstruct Improvements
thereon and thereunder, provided, however, that such construction or operation
of Improvements do not preclude or materially interfere with the Conservancy
District's ability to maintain and provide adequate flood control. Such right
and authority shall include the right to modify, alter or breach the levy
located within the area of the Premises, provided, however, that (i) the plans
for any work involving or affecting the levy and related improvements shall be
submitted to the Conservancy District for its prior approval, which approval
shall not be unreasonably withheld, and (ii) all applicable governmental
consents, approvals and permits have been obtained. Any request for the approval
of the Conservancy District hereunder shall be responded to within five (5)
business days after receipt by the Conservancy District of such request. In the
event that the Conservancy District fails to respond in writing within said
period, such plans shall be deemed approved. City shall own and have title to
all Improvements on the Premises. Upon the expiration or earlier termination of
this Lease, City shall have the right to remove any Improvements from the
Premises for a period of three hundred sixty-five (365) days after the data of
the termination of this Lease; provided however, that upon any such removal,
City shall refill all excavations and restore the surface of the Premises to a
reasonably satisfactory condition. Title to any Improvements not removed by City
within said three hundred sixty-five (365) days after the date of the
termination of this Lease shall be deemed vested in the Conservancy District and
City shall have no further obligation to the Conservancy District with respect
to such Improvements. As used herein, "Improvements" means all buildings, docks,
piers, structures, driveways, walkways, fencing and other physical improvements
made to, on or under the Premises by City.
5. EASEMENTS AND CONSERVANCY DISTRICT COOPERATION. The Conservancy
District shall execute (or shall use its best efforts to cause to be executed by
the fee simple owner of the affected premises, provided that such effort does
not cause any unreasonable, in the opinion of the Conservancy District,
financial burden or expense on the Conservancy District) such easements relating
and/or appurtenant to the Premises as City reasonably deems necessary or
appropriate to the enjoyment of its rights hereunder, and the Conservancy
District shall execute (or use its best efforts to cause to be executed by the
fee simple owner of the affected premises, provided that such effort does not
cause any unreasonable, in the opinion of the Conservancy District, financial
burden or expense on the Conservancy District) such applications, petitions and
other instruments as may be required to enable City to obtain such approvals,
permits, covenants or licenses reasonably necessary in its judgment to permit
the full exercise of its rights hereunder. In addition, the Conservancy District
shall cooperate with City and Subtenant, as
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applicable, in applying for, obtaining and/or otherwise securing all approvals,
consents and permits needed from the Army Corps of Engineers and all other
applicable federal, state and local authorities or bodies having jurisdiction
over the Premises, the improvements to be constructed thereon and/or the uses
contemplated for the Premises. To the extent the Conservancy District is
required by City to incur any costs hereunder prior to the date it first
receives Rent and such costs are incurred at City's request, City, at its
option, may advance such costs on behalf of the Conservancy District and receive
a credit against the Rent due hereunder in such amount.
6. USE, COMPLIANCE WITH LAWS. The Premises shall be used by City to
facilitate the operation of a riverboat gaming business and related support
facilities by Subtenant. In so doing, City shall enter into a sublease with
Subtenant that shall, among other items, require Subtenant to keep the Premises
and Improvements in good order, condition and repair, and to conduct its
business therefrom in a safe manner. City shall further require Subtenant to use
and maintain the Premises and Improvements at all times in compliance with all
legal requirements and not to commit waste thereon.
7. CONDEMNATION. If during the Term of this Lease the Premises or
Improvements, or and part thereof, shall at any time be taken or acquired by any
authority by exercise or threat of the power of eminent domain, as between the
Conservancy District and City, the condemnation award shall be divided as
follows:
(a) The Conservancy District shall be allowed the part of the award
allowed for the taking of the Conservancy District's interest in the
Premises and the Conservancy District's leasehold interests, if any,
exclusive of the Improvements and the leasehold interest of City; and
(b) City shall be allowed the part of the award allowed for the
taking of the Improvements and the damage to its leasehold estate.
8. CONSERVANCY DISTRICT'S REMEDY UPON DEFAULT. In the event City at any
time shall fail to pay the Rent required hereunder within thirty (30) days after
written notice that the rent was not paid when due, or in the event that City
shall fail or neglect to perform or observe any other covenant or condition
herein contained on City's part to be performed or observed and such failure or
neglect is not cured within sixty (60) days (or such longer period as is
reasonably necessary to cure such failure or neglect) after written notice of
such failure or neglect from the Conservancy District, the Conservancy District,
as its sole remedy as against City hereunder, without further notice to City may
terminate this Lease and recover possession of the Premises from City; provided
however, that if any default for which notice has been given as aforesaid is
remedied within the grace period applicable thereto as stated in this Paragraph,
then this Lease shall by considered to be in full force and effect the same as
if no such default had occurred. The Conservancy District agrees to copy
Subtenant on all written notices provided to City hereunder and to accept
performance and cure of any default by Subtenant, in lieu of any such
performance by City.
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9. ATTORNEYS' FEES. Each party shall pay the other party's reasonable
legal costs and attorney's fees incurred in successfully enforcing against the
other party any covenant, term or condition of this Lease.
10. QUIET ENJOYMENT. If City performs all of the covenants and agreements
herein provided to be performed on City's part, City shall at all times have the
peaceable and quiet enjoyment of possession of the Premises without any manner
of hindrance from the Conservancy District or any parties lawfully claiming by
through or under the Conservancy District.
11. TAXES. The Conservancy District shall pay all real properly taxes,
assessments and other governmental charges levied upon the real estate
constituting the Premises; provided however, City shall require Subtenant to pay
such portion of such taxes, assessments and other governmental charges levied as
a result of the Improvements located on the Premises.
12. UTILITIES. City shall require Subtenant to pay for all water, gas,
heat, light, power, telephone and other utilities and services shipped to the
Premises and Improvements, together with any taxes thereon.
13. FURTHER ACQUISITIONS. The Conservancy District and City acknowledge
that a portion of the Premises has been specifically identified by Subtenant as
potentially not owned or controlled by the Conservancy District or City that is
identified in EXHIBIT B attached hereto, and that Subtenant has agreed to obtain
all right, title and interest in and to such property and convey good and
marketable title to same to the Conservancy District on or before the
Commencement Date. In consideration of Subtenant's efforts, the additional
monies that City shall agree to contribute to Subtenant to obtain such property
and the conveyance of such property to the Conservancy District, the Conservancy
District agrees that it shall split the cost of such acquisition with City and
be responsible for up to a maximum sum of Five Hundred Thousand and 00/100
Dollars ($500,000.00) of the cost of such acquisition. City shall receive a
credit against the Rent due hereunder in the sum of Five Hundred Thousand and
00/100 Dollars ($500,000.00) or one-half of the total amount ultimately credited
against payments due City under the Development Agreement far such acquisition,
whichever is less. The parties agree that the credit shall be allocated and
applied on a pro-rata basis against the Rent payable during the first two (2)
Years of the Term.
14. WARRANTIES BY CONSERVANCY DISTRICT. Except as noted in EXHIBIT C
attached hereto and made a part hereof, the Conservancy District represents and
warrants to City that the Conservancy District has fee simple title to the
Premises, free and clear of any and all liens, claims, interests and
encumbrances of any kind and nature whatsoever, and further covenants and agrees
to defend the same against any and all adverse claims. The person executing this
Lease on behalf of the Conservancy District is a duly elected officer of the
Conservancy District and has been fully empowered by Conservancy District to
execute and deliver this Lease. The Conservancy District represents and warrants
that it has full capacity and authority under Indiana law to lease the Premises
to the City and all necessary action for the making of this conveyance on the
part of the Conservancy District has been taken and done. The Conservancy
District further represents and warrants to City that the Premises:
5
(a) contain no facilities that are subject to reporting under Section
312 of the federal Emergency Planning and Community Right-to-Know Act of
1986 (42 U.S.C. Section 11022);
(b) is not the site of any underground storage tanks for which
notification is required under 42 U.S.C. Section 6991a or IND. CODE Section
13-7-20-13 (8) (A); and
(c) is not listed on the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS) in accordance with
Section 116 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9616).
15. WARRANTIES BY CITY. The person executing this Lease on behalf of City
is the duly elected Mayor of the City and has been fully empowered by action of
the City Council to execute this Lease. City represents and warrants that it has
full capacity and authority under Indiana law to the Premises from the
Conservancy District and all necessary action on the part of the City for the
making of this conveyance has been taken and done.
16. SUBLEASE. The Conservancy District acknowledges and agrees that this
Lease is subject to and conditioned upon the City entering into a separate
sublease agreement with Subtenant, which sublease shall contain such terms and
provisions that City deems reasonably necessary, provided, however, that such
terms and provisions are not inconsistent with any term or provision contained
in this Lease. Further, to the extent any right is provided to City hereunder,
the same right may be provided by City under its sublease with Subtenant and
have the same force and effect as if granted directly to Subtenant by the
Conservancy District. The Conservancy District further acknowledges and agrees
that City shall have no liability to the Conservancy District for any act or
action arising from or related to the Premises or its operation by Subtenant,
but shall be responsible solely for the payment of the Rent hereunder in an
amount not to exceed $500,000.00, and for such monies as may be due Conservancy
District from time to time under that certain Revenue Sharing Agreement between
City and Conservancy District of even date herewith, and then only to the extent
that monies are actually received by City from Subtenant for the payment of such
obligations.
17. CONSERVANCY DISTRICT IMPROVEMENTS. Notwithstanding the lease of the
Premises hereunder and the right of City to modify, alter or breach the levy,
the Conservancy District hereby reserves the right to enter upon the Premises as
necessary to maintain, repair, replace, rebuild and/or modify the levy and
related improvements which are and shall remain the responsibility and
obligation of the Conservancy District in discharging its duties as a
conservancy district established pursuant to IND. CODE Section 13-3-3-1 ET SEQ.,
provided, however, that Conservancy District shall provide reasonable notice to
City and Subtenant of its need to access any part of the levy or related
improvements that are part of or adjacent to the Improvements to be located on
the Premises except in the event of an emergency as determined in the sole,
reasonable discretion of the Conservancy District. The Conservancy District
represents, warrants and agrees that in prosecuting its work on the levy and
related improvements, it will use its best efforts not to interfere with or
affect the operation of the Premises by City or Subtenant, and it will repair
and restore any portion of the Premises affected
6
by such work to the same condition as it was in immediately prior to such work
as is reasonably possible.
18. GENERAL AGREEMENT OF PARTIES.
(a) SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
(b) CAPTIONS. Paragraph and subparagraph captions are not a part
hereof.
(c) NOTICES. Any notices to be given hereunder shall be deemed
sufficiently given when in writing and (a) actually served on the party to
be notified or (b) placed in an envelope directed to the party to be
notified at the following addresses and deposited in the United States mail
by certified or registered mail, postage prepaid.
1. If to the Conservancy District:
Lawrenceburg Conservancy District
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
2. If to the City:
Mayor
Lawrenceburg City Administration Building
Xxxx Parkway and Xxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
With copy to:
The Indiana Gaming Company, L.P.
c/o Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxx Xxxx
Chairman & Chief Executive Officer
Such addresses may be changed by either party by written advice as to the new
address given as above provided.
(d) BINDING EFFECT; CHOICE OF LAW. This Lease and the covenants and
agreements contained herein shall run with the land and shall bind the
parties, their
7
personal representatives, successors and assigns. This Lease shall be
governed by the laws of the State of Indiana.
(e) COUNTERPARTS. The Lease may be executed in a number of identical
counterparts and if so executed, each such counterpart is deemed an
original for all purposes, and all such counterparts shall collectively
constitute one agreement.
(f) RECORDING. Either Conservancy District of the City shall, upon
request of the other, execute, acknowledge and deliver to the other a
"short form" memorandum of Lease for recording purposes in the form
attached hereto as EXHIBIT D.
IN WITNESS WHEREOF, the Conservancy District and City have executed this
Lease as of the day first set forth above.
LAWRENCEBURG CONSERVANCY
DISTRICT
By: /s/ Xxxxx Xxxx
-----------------------------------
(signature)
Xxxxx Xxxx, Chairman
-----------------------------------
(printed name and title)
CITY OF LAWRENCEBURG, INDIANA
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Mayor
8
EXHIBIT A
LEGAL DESCRIPTION
[Map of Premises]
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lots 1 and 2, and part of Xxx 0 xx Xxxxxx Xxxx'x Xxxxxxx (Slide
339) AND part of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx l West of the First
Principal Meridian located in the City of Lawrenceburg, Dearborn County,
Indiana, described as follows:
Commencing at a Southeasterly corner of Guard, Xxxx and Xxxxxx'x Addition (P.B.
3, P. 61) at the intersection of the Westerly line of platted Xxxxxxx Street
with the Southerly line of platted Xxxxxx Street; thence S 44 DEG. 45' 00"W
along the right-of-way of said Xxxxxxx Street 7.82 feet; thence S 45 DEG. 15'
00"E, 60.44 feet to the right-of-way of the Central Railroad of Indiana and the
point of beginning; thence along said right-of-way with the arc of a curve to
the right having a radius of 536.01 feet an arc distance of 21.85 feet, the long
chord of said arc bears X00 XXX.00'00"X a distance of 21.88 feet to the
right-of-way of the CSX Railroad;, thence along said CSX right-of-way the
following three courses: thence 44 DEG.45'00"E. 688.l3 feet; thence with the arc
of a curve to the left having a radius of 9582.30 feet an arc distance of 87.17
feet, the long chord of said arc bears N 44 DEG. 29' 22" E a distance of $7.17
feet; thence S 47 DEG. 15' 00"E, 42.01 feet; thence S 45 DEG. 15' 00" E, 1215.87
feet to the Ohio River boundary between the States of Indiana and Kentucky, as
the same was determined by the Supreme Court; thence along said Ohio River
boundary the following six courses: thence S 41 DEG. 29' 33"W, 59.97 feet;
thence S 46 DEG. 51' 31"W, 29S.39 feet; thence S 39 DEG. 15' 30"W, 104.26 feet;
thence S 43 DEG. 48' 50"W, 304.84 feet; thence S 44 DEG. 01' 29"W, 213.22 feet;
thence S 45 DEG. 21' 32"W, 135.79 feet; thence leaving said river N 45 DEG. 15'
00"W, 1142.92 feet to the right-of-way of said Central Railroad; thence along
said Central Railroad right-of-way with a curve to the right having a radius of
536.01 feet an arc distance of 348.85 feet, the long chord of said arc bears N
23 DEG. 46' 09"E, 342.72 feet to the point of beginning.
Contains 32.074 acres. xxxxxxX0.xx
docksite.rev
EXHIBIT B
ACQUISITION PROPERTY
[Map of Acquisition Property]
[Map of Acquisition Property]
EXHIBIT C
EXCEPTIONS
EXHIBIT C
8. An easement granted to Lawrenceburg Flood Control District for the
Invention of the construction, operation, and maintenance of the Flood
Control Project, which easements was granted by City of Lawrenceburg, by a
certain easement dated June 3, 1940 recorded June 11, 1940, in Deed Record
95, page 118, of the Recorder's records of Dearborn County, Indiana.
13. Any adverse claim based upon the assertion that:
(a) The land described in Schedule A, or any part thereof, is now or at
any time has been below the ordinary low water xxxx of the Ohio River,
or
(b) Some portion of said land has been created by artificial means or has
accreted to such portion so created, or
(c) Some portion of said land has been brought within the boundary thereof
by an avulsive movement of the Ohio River, or has been formed by
accretion to any such portion.
14. Such rights and easements for navigation, commerce or recreation which may
exist over that portion of said land lying beneath the waters of the Ohio
River.
15. Rights of upper and lower riparian owners with respect to the Ohio River.
16. Subject to a 12 foot roadway along the Southern side of Lots 3 and 4 as
shown on the Plat of the Squire Watt's Estate recorded January 25, 1888 in
Plat Book 3, page 77.
17. Subject to a perpetual flowage easement by The New York Central Railroad
Company and The Cleveland, Cincinnati, Chicago and St. Louis Railway
Company in favor of The United States of America dated February 28, 1961
and recorded January 15, 1962 in Deed Record 129, huge 596.
18. Subject. to:
Negative consequences due to lack of satisfactory evidence of record title
in the City of Lawrenceburg to those parcels included in Schedule A and
described as follows: (a) A parcel surrounded on the North by Xxxxxxx
Street; On the South by land acquired by the Lawrenceburg Flood Control
District in Deed Record 95, Page 511 and in Deed Record 93, Page 107; on
the West by land acquired by the City of Lawrenceburg in Deed Record 50,
Page 331; on the East by land acquired by the City of Lawrenceburg in Order
19. Subject to:
a. Negative consequences due to failure of deed from Xxxxxx X. Xxxx, Xx.,
as Trustee of the Property of The Cleveland, Cincinnati, Chicago and St.
Louis Railway Company, Debtor (Grantor) to Consolidated Rail Corporation
(Grantee) recorded October 11, 1928 in Deed Record 184, Page 312 to contain
a complete and accurate legal description of the land conveyed.
b. Negative consequences due to failure of the deed from Consolidated Rail
Corporation (Grantor) to The Central Railroad Company of Indiana (Grantee)
recorded January 6,
1992 in Deed Record 249, Page 427 to contain a complete and accurate legal
description of the land conveyed.
c. Right, title and interest reserved by White Water Valley Canal Company
in the Deed from White Water Valley Canal Company to Indianapolis and
Cincinnati Railroad Company recorded December 5, 1865 in Deed Record 23,
Page 336.
Book 58, Page 512 and also on the East by land acquired by the Lawrenceburg
Flood Control District in Deed Record 95, Page 511. (b) That portion of the
insured premises which lies beneath St. Clair Street as extended from
Xxxxxxx Street to the Ohio River.
22. Financing Statement by Central Railroad Company of Indiana (as Debtor) to
The First National Bank of Boston, as Agent (Secured Party) recorded
January 3, 1992, File No. 13 in the Office of the Recorder for Dearborn
County, Indiana.
23. Lien and provisions of a mortgage by The Central Railroad Company of
Indiana to The First National Bank of Boston in the original principal sum
of $7,000,000.00 dated December 30, 1991 and recorded January 6, 1992 in
Mortgage Record 300, Page 598.
24. Subject to a perpetual right of way for construction and maintenance in
favor of the United States granted by the City of Lawrenceburg March 12,
1891 and recorded March 30, 1891 in Deed Record 47, Page 442.
35. Subject to an unrecorded __________________
2
EXHIBIT D
MEMORANDUM OF LEASE
MEMORANDUM OF LEASE
The Memorandum of Lease made this 28th day of December, 1995, by and
between the LAWRENCEBURG CONSERVANCY DISTRICT, a conservancy district
established pursuant to IND. CODE Section 13-3-3-1 ET SEQ. (the "Conservancy
District"), and the CITY OF LAWRENCEBURG, INDIANA, an Indiana municipality (the
"City"), evidences that:
WHEREAS, the Conservancy District and City entered into a Ground Lease
dated _________, 19___ (the "Lease") for the premises which are described in
Exhibit "A" attached hereto and by this reference made a part hereof (the
"Premises"); and,
WHEREAS, the Conservancy District and City have entered into this
Memorandum of Lease in order to provide notice of certain of the terms and
provisions of the Lease.
NOW THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. The Conservancy District has leased the Premises to City pursuant to
the terms of the Lease for a term (the "Term", which, as used herein, includes
the Initial Term and any and all renewal Terms as hereinafter defined), which
shall commence on the date (the "Commencement Date") that Indiana Gaming Company
L.P. ("Subtenant"), begins operation of a riverboat gaming facility at the
Premises pursuant to an "Owner's license" for such activity as defined in IND.
CODE Section 4-33-2-15. As used herein, the phrase "Year 1" of the Term shall be
deemed to run from the Commencement Date until the last day of the same month of
the following calendar year, with "Year 2" of the Term commencing on the first
day of the succeeding month. Each subsequent "Year" of the Term shall then
commence on the anniversary date of the commencement of Year 2. The initial term
(the "Initial Term") of the Lease shall commence on the Commencement Date and
continue through Year 6. Thereafter, the Term of this Lease shall be
automatically extended for up to nine (9) renewal term periods of five (5) years
each (each such renewal period being hereinafter referred to as a "Renewal
Term"), provided, however, that City shall have the right to terminate the
Lease, with or without cause, by providing notice to the Conservancy District of
the City's intent to terminate at least thirty (30) days prior to the end of any
Year of the Term. Upon such termination, City shall have no further liability or
obligation to the Conservancy District except as otherwise expressly provided in
the Lease.
2. IMPROVEMENTS ON THE PREMISES. The Conservancy District hereby grants
to City the right to access the Premises and construct Improvements (as
hereinafter defined) thereon at such time as a "Certificate of Suitability" has
been issued to Subtenant, notwithstanding the fact that such time period shall
precede the Commencement Date. City shall have the unrestricted right to
construct, use and operate Improvements on and under the Premises, to make
additions thereto, and to alter, demolish, relocate and reconstruct Improvements
thereon and thereunder. Such right and authority shall include the right to
modify, alter or breach the levy located within the area of the Premises,
provided, however, that all applicable governmental consents, approvals and
permits have been obtained. City shall own and have title to all Improvements on
the Premises. Upon the expiration or earlier termination of this Lease, City
shall have the right to remove any Improvements from the Premises for a
reasonable period of time; provided however, that upon any such removal, City
shall refill all excavations and restore the surface of the
Premises to a reasonably satisfactory condition. Title to any Improvements not
removed by City within three hundred sixty-five (365) days after the date of the
termination of this Lease shall be deemed vested in the Conservancy District. As
used herein, "Improvements" means all buildings, docks, piers, structures,
driveways, walkways, fencing and other physical improvements made to, on or
under the Premises by City.
3. All of the terms and provisions of the Lease are hereby incorporated
herein by reference as if the same were set forth in full herein.
4. This Memorandum of Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, successors in
interest and assigns.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
LAWRENCEBURG CONSERVANCY DISTRICT
By: /s/ Xxxxx Xxxx
------------------------------------------
(signature)
Xxxxx Xxxx, Chairman
------------------------------------------
(printed name and title)
CITY OF LAWRENCEBURG, INDIANA
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx, Mayor
2
STATE OF INDIANA )
) SS:
COUNTY OF DEARBORN )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx Xxxx a Chairman of the Lawrenceburg Conservancy District, and
who acknowledged the execution of the foregoing Memorandum of lease for and
on behalf of the Conservancy District.
Witness my hand and Notarial Seal this 27th day of December, 1995.
My Commission Expires:
/s/ Xxxxxxx X. Xxxx
----------------------
____________________ Notary Public
Xxxxxxx X. Xxxx, Notary Public
Commission Expires January 4, 1998
Resident of Dearborn County, Indiana
------------------------------------
Printed Name
My County of Residence:
____________________
STATE OF INDIANA )
) SS:
COUNTY OF DEARBORN )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxx, the Mayor of the City of Lawrenceburg, Indiana, and
who acknowledged the execution of the foregoing Memorandum of Lease for and on
behalf of the City.
Witness my hand and Notarial Seal this _____ day of ______ 1995.
My Commission Expires:
----------------------
Notary Public
_____________________
----------------------
Printed Name
My County of Residence:
_____________________
This instrument prepared by Xxxxx X. Xxxxxxx, Esq., Xxxx Xxxx Xxxxxx & Xxxxxxx,
Suite 4600, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, (000) 000-0000.
[Map of Premises]
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lots 1 and 2, and part of Xxx 0 xx Xxxxxx Xxxx'x Xxxxxxx (Slide
339) AND part of Section 14, Township 5 North, Range 1 West of the First
Principal Meridian located in the City of Lawrenceburg, Dearborn County,
Indiana, described as follows :
Commencing at a Southeasterly corner of Guard, Xxxx and Xxxxxx'x Addition (P.B.
3, P. 61) at the intersection of the Westerly line of platted Xxxxxxx Street
with the Southerly line of platted Xxxxxx Street; thence S 44 DEG. 45' 00"W
along the right-of-way of said Xxxxxxx Street 7.82 feet; thence S 45 DEG. 15'
00"E, 60.44 feet to the right-of-way of the Central Railroad of Indiana and the
point of beginning; thence along said right-of-way with the arc of a curve to
the right having a radius of 536.01 feet an arc distance of 21.85 feet, the long
chord of said arc bears N 43 DEG.35'25"E a distance of 21.85 feet to the
right-of-way of the CSX Railroad;, thence along said CSX right-of-way the
following three courses: thence 44 DEG.45'00"E. 688.l5 feet; thence with the arc
of a curve to the left having a radius of 9582.30 feet an arc distance of 87.17
feet, the long chord of said arc bears N 44 DEG. 29' 22" E a distance of 87.17
feet; thence S 47 DEG. 15' 00"E, 42.01 feet; thence S 45 DEG. 15' 00" E, 1215.87
feet to the Ohio River boundary between the States of Indiana and Kentucky, as
the same was determined by the Supreme Court; thence along said Ohio River
boundary the following six courses: thence S 41 DEG. 29' 33"W, 59.97 feet;
thence S 46 DEG. 51' 31"W, 285.39 feet; thence S 39 DEG. 15' 30"W, 104.26 feet;
thence S 43 DEG. 48' 50"W, 304.84 feet; thence S 44 DEG. 01' 29"W, 213.22 feet;
thence S 45 DEG. 21' 32"W, 138.79 feet; thence leaving said river N 45 DEG. 15'
00"W, 1142.92 feet to the right-of-way of said Central Railroad; thence along
said Central Railroad right-of-way with a curve to the right having a radius of
536.01 feet an arc distance of 348.85 feet, the long chord of said arc bears N
23 DEG. 46' 09"E, 342.72 feet to the point of beginning.
Contains 32.074 acres. xxxxxX0.xx
docksite.rev
3
EXHIBIT C
MEMORANDUM OF SUBLEASE
THIS MEMORANDUM OF SUBLEASE, executed by the parties hereto on the _____
day of ___________________, 1996 to evidence a certain Ground Sublease of even
date herewith (the "Sublease"),
WITNESSETH, that
1. LANDLORD. The name of the landlord ("Landlord") is the CITY OF
LAWRENCEBURG, INDIANA, an Indiana municipality with its offices at Lawrenceburg
Administration Building, 000 Xxxx Xxxxxx, Xxxx Xxxxxx Xxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000.
2. TENANT. The name of the tenant ("Tenant") is INDIANA GAMING COMPANY,
L.P., c/o Argosy Gaming Company, 000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: J. Xxxxxx Xxxx, Chairman and Chief Executive Officer
3. PREMISES. The Landlord hereby subleases to the Tenant and the Tenant
hereby subleases from the Landlord certain land more particularly described on
EXHIBIT A, attached hereto and made a part hereof (the "Land"), together with
all rights, privileges, easements and appurtenances thereto belonging or in any
way pertaining and the buildings and improvements now existing or hereafter
erected thereon, together with any additions thereto or alterations or
improvements of such buildings and improvements. The Land, together with all
buildings and improvements now existing or hereafter placed on the Land and all
rights, privileges, easements and appurtenances attaching to the Land, are
hereinafter referred to as the "Premises."
4. TERM AND OPTIONS. The term of the Sublease shall commence on the date
(the "Commencement Date") that Tenant begins operation of a riverboat gaming
facility on the Premises in Dearborn County, Indiana, pursuant to an "Owner's
license" (the "License") for such activity as defined in IND. CODE Section
4-33-2-15. As used herein, the phrase "Year 1" of the Term shall be deemed to
run from the first day of the calendar month following the Commencement Date
until the last day of the same month of the following calendar year, with "Year
2" of the Term commencing on the first day of the succeeding month. Each
subsequent "Year" of the Term shall then commence on the anniversary date of the
commencement of Year 2. The initial term (the "Initial Term") of this Sublease
shall commence on the Commencement Date and continue through Year 6. Thereafter,
the Term of this Sublease will be automatically extended for up to nine (9)
renewal term periods of five (5) years each (each such renewal period being
hereinafter referred to as a "Renewal Term"), unless Tenant, at least six (6)
months prior to the end of the Initial Term or the preceding Renewal Term, gives
notice to the Landlord of Tenant's intent not to renew; PROVIDED, HOWEVER, that
if Tenant gives such notice less than one (1) year before the end of the Initial
Term or such Renewal Term, then the Initial Term or such Renewal Term as the
case may be shall be automatically extended for a period of one (1) year from
the date of such notice.
5. MASTER LEASE. This Sublease is subject in all respects to the terms
and conditions of the Ground Lease dated December 28, 1995, between the Landlord
and the Lawrenceburg Conservancy District (the "Master Lease"), a memorandum of
which has been recorded
contemporaneously herewith. Landlord covenants and agrees that it will observe
and perform each of the covenants and agreements contained in the Master Lease,
and shall abide and be bound by each of the terms and provisions, of the Master
Lease and shall take no action, or fail to take any action, that would
constitute a default by the lessee thereunder.
This Memorandum of Sublease is executed solely for the purpose of giving
notice to third parties of the existence of the Sublease and certain terms
thereof. Reference is made to the Sublease which contains a full description of
the rights and duties of Landlord and Tenant and the terms, conditions,
provisions and limitations on the use and occupancy of the Premises. This
Memorandum of Sublease (or the description of certain such rights, duties,
conditions and limitations) shall in no way or under any circumstances affect
the terms and conditions of the Sublease or the interpretation of the rights and
duties of Landlord and Tenant thereunder.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of
Sublease to be executed as of the date set forth above.
INDIANA GAMING COMPANY, L.P.
By: The Indiana Gaming Company, its general
partner
By:
---------------------------------
(signature)
---------------------------------
(printed name and title)
CITY OF LAWRENCEBURG, INDIANA
By:
--------------------------------------
_____________, Mayor
2
STATE OF ___________________)
) SS:
COUNTY OF __________________)
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared ____________________________, the
____________________________ of The Indiana Gaming Company, as the general
partner of Indiana Gaming Company, L.P., who acknowledged the execution of the
foregoing instrument for and on behalf of said entity.
Witness my hand and Notarial Seal this _____ day of ______________________,
1996.
_____________________________________
______________________, Notary Public
residing in___________________County,
__________________
My Commission Expires:
__________________
STATE OF ___________________)
) SS:
COUNTY OF __________________)
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared ____________________________, the
____________________________ of The Indiana Gaming Company, as the general
partner of Indiana Gaming Company, L.P., who acknowledged the execution of the
foregoing instrument for and on behalf of said entity.
Witness my hand and Notarial Seal this _____ day of ______________________,
1996.
_____________________________________
______________________, Notary Public
residing in___________________County,
__________________
My Commission Expires:
______________________________
This instrument prepared by Xxxxxxx X. Xxx and Xxxxxx X. Xxxxxxxx,
Attorneys-at-Law
Xxxxxx & Xxxxxxxxx
1313 Merchants Bank Building, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000
[Map of Premises]
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lots 1 and 2, and part of Xxx 0 xx Xxxxxx Xxxx'x Xxxxxxx (Slide
339) AND part of Section 14, Township 5 North, Range 1 West of the First
Principal Meridian located in the City of Lawrenceburg, Dearborn County,
Indiana, described as follows:
Commencing at a Southeasterly corner of Guard, Xxxx and Xxxxxx'x Addition (P.B.
3, P. 61) at the intersection of the Westerly line of platted Xxxxxxx Street
with the Southerly line of platted Xxxxxx Street; thence S 44 DEG. 45' 00"W
along the right-of-way of said Xxxxxxx Street 7.82 feet; thence S 45 DEG. 15'
00"E, 66.44 feet to the right-of-way of the Central Railroad of Indiana and the
point of beginning; thence along said right-of-way with the arc of curve to the
right having a radius of 536.01 feet an arc distance of 21.85 feet, the long
chord of said arc bears N 43 DEG. 35' 25"E a distance of 21.85 feet to the
right-of-way of the CSX Railroad; thence along said CSX right-of-way the
following three courses: thence N 44 DEG. 45' 00"E, 688.15 feet; thence with the
arc of a curve to the left having a radius of 9582.30 feet an arc distance of
87.17 feet, the long chord of said arc bears N 44 DEG. 29' 22"E a distance of
87.17 feet; thence S 47 DEG. 15' 00"E, 42.01 feet; thence S 45 DEG. 15' 00"E,
1215.87 feet to the Ohio River boundary between the States of Indiana and
Kentucky, as the same was determined by the Supreme Court; thence along said
Ohio River boundary the following six courses: thence S 41 DEG. 29' 33"W, 59.97
feet; thence S 46 DEG. 51' 31"W, 298.39 feet; thence S 39 DEG. 15' 30"W, 104.26
feet; thence S 43 DEG. 48' 50"W, 304.84 feet; thence S 44 DEG. 01' 25"W, 213.22
feet; thence S 45 DEG. 21' 32"W, 138.79 feet; thence leaving said river N 45
DEG. 15' 00"W, 1142.92 feet to the right-of-way of said Central Railroad; thence
along said Central Railroad; right-of way with a curve to the right having a
radios of 536.01 feet an arc distance of 348.85 feet, the long chord of said arc
bears N 23 DEG. 46' 09"E, 342.72 feet to the point of beginning.
Contains 32.074 acres. xxxxxX0.xx
docksite.rev
EXHIBIT D-INSURANCE
Indiana Gaming shall provide the following types and amounts of insurance:
1. Workers Compensation & Disability: Statutory Limits
2. Employer's Liability:
(i) Bodily Injury by Accident: $500,000 each accident
(ii) Bodily Injury by Disease: $500,000 policy limit
(iii) Bodily Injury by Disease: $500,000 each employee
3. Commercial General Liability (Occurrence Basis); Bodily
injury, personal injury, property damage, contractual liability,
products-completed operations.
(i) General Aggregate Limit (other than
Products/Completed Operations): $2,000,000
(ii) Products/Completed Operations: $1,000,000
(iii) Personal & Advertising Injury
Limit: $1,000,000
Each Occurrence Limit: $1,000,000
Fire Damage (any one fire): $50,000
Medical Expense Limit
(any one person) $5,000
4. Water Pollution Liability Coverage: $5,000,000
5. Joint Venture Coverage (if applicable):
Same as primary general liability.
6. All standard maritime endorsements, including but not limited
to:
(i) Dock and Wharf Liability: $1,000,000/occurrence
(ii) Passenger & Crew Liability $1,000,000/occurrence
(iii) Collision Liability $1,000,000/occurrence
(iv) Wreckage removal: $1,000,000/occurrence
(v) Xxxxx Act and all
maritime statute: $1,000,000/occurrence
7. Railroad Protective Liability (if applicable):
$1,000,000/occurrence, $2,000,0000/aggregate
8. Comprehensive Auto Liability
(single limit) $1,000,000
(owned, hired and non-owned) each accident
Bodily injury and property damage
9. Primary Umbrella Excess Liability:
$75,000,000 each occurrence and aggregate
Self Insured Retention: $25,000
10. Property Insurance: Indiana Gaming shall purchase and maintain
a combination Installation/Builder's Risk Insurance to the full insurable
value to the initial contract cost and any subsequent modifications thereto
on an all risks policy form against their perils of fire and extended
coverage, theft, vandalism, malicious mischief collapse, false work,
testing, temporary buildings and debris removal including demolition work
occasioned by enforcement of any applicable legal requirements. This
property insurance shall cover work stored off site as well as any work in
transit. Indiana Gaming shall be responsible for the satisfaction of any
deductible level it selects. This insurance is not intended to cover the
tools, equipment and other such property of Indiana Gaming or its
subcontractors in performing any work which is normally covered by such
person's own property insurance which are not incorporated in the Premises.
The risk of loss as to all such properly shall be borne by those parties,
and they shall carry such insurance on such property as they shall
determine.
11. Liability Insurance: Indiana Gaming shall purchase and
maintain such commercial general liability and other insurance as is
appropriate for the Premises and as will protect Indiana Gaming and City
and their employees, officers, or agents from (i) claims for damages
because of bodily injury occupational sickness or disease, or death of
Indiana Gaming employees; (ii) claims for damages because of bodily injury,
sickness or disease, or death of any covered person other than Indiana
Gaming employees; (iii) claims for damages insured by personal injury
liability coverage which are sustained by any person as a result of an
offense directly or indirectly related to the employment of such person by
Indiana Gaming; (iv) claims for damages, other than any work itself,
because of physical injury to or destruction of tangible properly wherever
located, including loss of use resulting therefrom; and (v) claims for
damages because of bodily injury or death of any person or property damage
arising out of the ownership maintenance or use of any motor vehicle by
Indiana Gaming in connection with furnishing any of any work.
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The commercial General Liability Insurance shall include coverage of (i)
Premises and operations, (ii) Contractual liability as applicable to any
indemnification and hold harmless agreements in the Lease, (iii) Products and
Completed Operations, (iv) Broadform Property Damages, including completed
operation, and (v) Independent contractors. Such insurance shall specifically
include coverage for property damage from explosion, collapse, and blasting or
explosion, collapse of structures or structural injury due to grading of land,
excavation, filling, back filling, tunneling, pile driving, caisson work,
moving, shoring, underpinning, raising of or demotion of any structure, or
removal or rebuilding of any structural support of a building or stricture. Such
insurance shall further include coverage for damage to wire, conduits, pipes,
mains, sewers, or other similar apparatus encountered below the surface of the
ground when such damages is caused by an occurrence arising out of the
performance of any work, performed by Indiana Gaming, any contractor or by any
subcontractor or anyone directly or indirectly employed by either.
the aforementioned insurance shall be subject to each of the following
terms and conditions:
(i) Indiana Gaming shall be responsible for paying all deductible
amounts.
(ii) Before commencing any work Indiana Gaming shall submit a
"Certificate of Insurance" indicating the above necessary coverages as well as
naming City, its employees and representatives as "Additional Insureds" on all
policies except Workers' Compensation to City for review and approval. Such
insurance shall be carried with financially responsible insurance companies
authorized to do business in the State of Indiana. Such coverages shall be kept
in force at all times during the term of this Lease. Indiana Gaming insurer(s)
shall provide Indiana Gaming and City with Certified Mail sixty (60) days prior
written notice in the event of cancellation, non-renewal or material change in
the policies.
(iii) The Commercial General Liability insurance required by herein
shall include contractual liability insurance applicable to Indiana Gaming
indemnity obligations.
(iv) If City has any objections to the coverage afforded by or other
provisions of the insurance required to be purchased and maintained by Indiana
Gaming in accordance with this Exhibit, on the basis of its not compiling with
this Exhibit, City will notify Indiana Gaming in writing thereof within ten (10)
days of the date such certificates are delivered to City. Indiana Gaming shall
provide to City such additional information in response to insurance provided by
Indiana Gaming as City may reasonably request. Failure by City to give any such
notice of objection within the time provided shall constitute acceptance of such
insurance purchased by Indiana Gaming. With the prior approval of City, Indiana
Gaming may substitute different types or amounts of coverage of those specified
as long as the total amount of required protection is not reduced.
(v) If Indiana Gaming finds it necessary to occupy or use a portion
or portions of the Premises prior to substantial completion of all the work,
such use or occupancy may be accomplished; provided that no such use or
occupancy shall commence before the insurers providing the property insurance
have acknowledged notice thereof and in writing effected the
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changes in coverage necessitated thereby. The insurers providing the property
insurance shall consent by endorsement on the policy or policies, but the
property insurance shall not be cancelled or lapse on account of any such
partial use or occupancy.
(vi) Nothing in this Exhibit shall operate or be construed as
limiting the amount of liability of Indiana Gaming to the above enumerated
amounts.
(vii) The insurance required by this Exhibit shall be written for not
less than the limits of liability and coverages as provided herein or as
required by applicable law, whichever is greater.
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