PUBLIC TRUST TIDELANDS LEASE
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STATE OF MISSISSIPPI
COUNTY OF HINDS
THIS AGREEMENT, made and entered into this the 15 day of August, 1994, by
and between the SECRETARY OF STATE, with the approval of the GOVERNOR, for and
on behalf of the STATE OF MISSISSIPPI, hereinafter referred to as "LESSOR," and
Mississippi-I Gaming, L.P., doing business as Boomtown Biloxi Casino, a
Mississippi Limited Partnership registered to do and doing business in the State
of Mississippi, hereinafter referred to as "LESSEE."
WITNESSETH:
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THAT FOR THE TERM and in consideration of the rentals hereinafter set
forth, and covenants, conditions, and obligations to be observed and performed
by LESSEE, LESSOR does hereby lease and rent unto LESSEE, pursuant to the
authority of MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), the following described
submerged land or tideland, hereinafter referred to as SAID PROPERTY, to-wit:
A parcel located in Section 28, Township 7 South, Range 9 West,
in the Second Judicial District of Harrison County, Mississippi,
more particularly described as follows:
COMMENCE at a point on the North margin of Bay View Avenue, said
point being at the intersection of said North margin with the
extension of the East margin of Main Street; thence run North 0
degrees 30 minutes 7 seconds East, for a distance of 352.72 feet
to a point on the water's edge in the Back Bay of Biloxi, and
the POINT OF BEGINNING; thence continue North 0 degrees 30
minutes 07 seconds East for a distance of 627.28 feet to a point;
thence run South 89 degrees 29 minutes 53 seconds East, for a
distance of 421.62 feet to a point; thence run South 0 degrees 30
minutes 07 seconds West, for a distance of 567.28 feet to a point
on the water's edge in the Back Bay of Biloxi, thence run along
the waters edge, the following bearings and distances, to wit:
North 89 degrees 00 minutes 25 seconds West, 54.89 feet, North 59
degrees 34 minutes 39 seconds West, 35.62 feet; North 02 degrees
39 minutes 47 seconds East, 9.06 feet; North 65 degrees 11
minutes 04 seconds West, 89.88 feet; North 00 degrees 47 minutes
05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10
seconds west, 25.28 feet; South 75 degrees 11 minutes 01 seconds
West, 39.18 feet; South 09 degrees 13 minutes 15 seconds East
7.92 feet; South 81 degrees 54 minutes 06 seconds West, 49.27
feet; North 08 degrees 11 minutes 59 seconds West, 22.25 feet;
South 81 degrees 26 minutes 23 seconds West, 94.03 feet; South 11
degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees
59 minutes 07 seconds East, 79.84 feet and
South 65 degrees 01 minutes 07 seconds West, for a distance of
106.37 feet to the POINT OF BEGINNING, containing 222,022 square
feet, or 5.10 acres, more or less. (See survey prepared by Terry
J. Moran, Jr., R.L.S., dated June 29, 1994, attached hereto as
Exhibit 1 and incorporated herein by reference.)
1. TERM.
The primary term of this lease shall be for ten (10) years, beginning
on the 1st day of July, 1994, and terminating on the 30th day of June, 2004. If
LESSEE has complied with all terms, covenants, conditions, and obligations of
this lease, as of the expiration of the primary term, LESSEE shall have the
option to extend this lease for a renewal term of five (5) years under the same
terms and provisions of this lease, subject to the renegotiation of annual
rental based on appraisal obtained by the LESSOR.
2. CONSIDERATION.
The parties hereto agree that SAID PROPERTY contains 222,022 square feet of
submerged lands or tidelands. The parties agree that consideration for this
lease is in part predicated on LESSEE developing and operating a single dockside
gaming facility licensed by the State of Mississippi which will contain up to
1,010 games as shown on Statement of Games dated April 27, 1994 from LESSEE to
Mississippi State Tax Commission, a copy of which is attached hereto as Exhibit
2. Should LESSEE desire to expand the gaming area within its casino beyond these
1,010 games, notice shall first be given to LESSOR and a corresponding
adjustment to the annual rental shall be made. During the period July 1, 1994,
to June 30, 1999, LESSEE covenants and agrees to pay annual rental to LESSOR in
the sum of FIVE HUNDRED TWENTY FIVE THOUSAND ($525,000.00) AND NO/100THS
DOLLARS. Payment of the first year's rent shall be made in four (4)
installments, with one payment of NINETY THOUSAND ($90,000.00) AND NO/100THS
DOLLARS to be made on or before August 1, 1994, and the remaining balance of
FOUR HUNDRED THIRTY FIVE THOUSAND ($435,000.00) AND NO/100THS DOLLARS to be paid
in three (3) equal installments on or before the 1st days of September, October
and November, 1994.
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3. RENT ADJUSTMENT.
LESSOR shall, at the end of the first five year period of the lease term,
determine the annual rental in accordance with MISS. CODE ANN. Sec. 29-1-107(2)
(Supp. 1994) or as amended by subsequent legislation and the adopted and
published rules of the Secretary of State for the administration, control and
leasing of public trust tidelands, as amended and revised. In the event LESSOR
and LESSEE cannot agree on an adjusted rental amount, the lease may be canceled
at the option of LESSOR.
4. PLACE AND TIME OF PAYMENT.
Subject to Article 2 above regarding the first year's payment, rent shall
be payable annually on or before July 1st to the STATE OF MISSISSIPPI and shall
be submitted to the SECRETARY OF STATE or his successor in office, through the
Public Lands Division, 401 Mississippi Street, Post Office Box 136, Jackson,
Mississippi 39205.
5. INTEREST PENALTY FOR PAST DUE RENT BALANCES.
LESSEE shall pay a late charge equal to interest at the rate of twelve
percent (12%) per annum from the date due until paid on any lease rentals, fees,
or other charges due and payable hereunder, which are not paid within thirty
(30) days of their due date.
6. RIGHT TO RE-LEASE.
Pursuant to MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), LESSEE is hereby
granted the prior right, exclusive of all other persons, to re-lease at the
expiration of this lease, as may be agreed upon between LESSEE and LESSOR, so
long as LESSEE continues to present satisfactory evidence of LESSEE's right to
occupy the adjacent uplands.
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7. TAXES, SURVEY COSTS, RECORDING FEES.
LESSEE covenants and agrees to pay any and all general taxes and special
assessments, if ever any there be, applicable to the above described property
and LESSEE'S interest therein and improvements thereon; further, LESSEE
covenants and agrees to pay any and all survey costs and recording fees in
connection with this lease or any other fees so determined by law.
8. TRANSFERABILITY OF LEASE.
Subject to the provisions of Article 10 below, LESSEE shall NOT sublease,
assign, or transfer SAID PROPERTY (except for a lease of the gift shop within
the casino, for which permission is hereby granted by LESSOR) without the prior
written permission of the Secretary of State or his successor, which permission
shall not arbitrarily or unreasonably be withheld.
9. PUBLIC ACCESS ASSURED.
LESSEE covenants and agrees to maintain free public access to SAID PROPERTY
during the term of the lease, subject to rules and regulations reasonably
necessary to ensure the safety and convenience of all users. This provision does
not imply free access to enter the casino vessel. LESSEE further covenants to
construct and maintain all piers, wharfs and boardwalks shown on Exhibit 1
attached hereto.
10. LEASEHOLD MORTGAGEE PROTECTIONS
This Article is included to give additional rights to the Leasehold
Mortgagee, as defined herein. Unless specifically so stated, the additional
rights herein shall not amend the remaining provisions of the Lease with regard
to the LESSEE, and may not be exercised, claimed or used in any manner by the
LESSEE.
(a) LESSOR does hereby consent to a Leasehold Construction and Permanent
Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents,
executed by the LESSEE as Trustor in favor of First Trust National Association,
as Beneficiary, dated as of November 10, 1993, and a Leasehold Construction and
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Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment
of Rents (Subordinated), executed by the LESSEE, as Trustor, in favor of
Boomtown, Inc., as Beneficiary, collectively referred to as the Leasehold
Mortgage. The Leasehold Mortgage will be a lien on the interest of the LESSEE in
certain real estate described in and leased to the LESSEE pursuant to a Ground
Lease, as amended, dated as of October 19, 1993, by and between the LESSEE and
Raphael Skrmetta and public trust tideland leasehold property interest described
herein. This Leasehold Mortgage is not an encumbrance on the fee interest in the
public trust tidelands real property leased from the State of Mississippi, but
is limited strictly to a leasehold interest only. Furthermore, it is understood
and agreed that in the event the Leasehold Mortgage holder should foreclose, it
shall have the right to make a one time assignment of SAID PROPERTY to any
financially responsible person licensed by the Mississippi Gaming Commission.
(b) When a notice of default or termination is to be given to the LESSEE under
the terms of this Lease, such notice shall also be given to the Leasehold
Mortgagee at the following address: First Trust National Association, First
Trust Center, 180 East Fifth Street, St. Paul, Minnesota, 55101; and the Trustee
thereunder at the following address: Stephen H. Leech, Jr., c/o Phelps Dunbar,
Security Center North, 200 S. Lamar Street, Suite 500, Jackson, Mississippi,
39225.
Should there be more than one (1) Leasehold Mortgagee, only one address shall be
designated.
(c) For purposes of this Lease, "Leasehold Mortgage" means the deed of
trust, mortgage or lien consented to in paragraph (a) above, on this Lease
Agreement and/or the LESSEE's leasehold interest under this Lease Agreement,
which shall include facilities constructed or placed on SAID PROPERTY including
any vessels, and "Leasehold Mortgagee" shall mean the beneficiary or
beneficiaries under the Leasehold Mortgage. Any Leasehold Mortgagee may exercise
any of its right hereunder through a designee, nominee, or wholly owned
subsidiary.
(d) Notwithstanding anything to the contrary in this Article or elsewhere
in this Lease: (1) LESSOR consents to the execution, delivery and recording or
filing of the
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Leasehold Mortgage and the collateral assignment of such Leasehold Mortgage;
(2) LESSOR acknowledges that any beneficiary of the Leasehold Mortgage (and/or
their representatives or assignees) are Leasehold Mortgagee(s) for all purposes
of this Lease Agreement and no further conditions need to be satisfied for such
holder (and/or their representatives or assignees) to be Leasehold Mortgagee.
(e) If the Leasehold Mortgagee, as such term is hereinabove defined, shall
forward to LESSOR a copy of the Leasehold Mortgage together with a written
notice setting forth its name and address, then any such copy of said mortgage
and any such notice shall be deemed also to have been forwarded to any successor
to LESSOR's interest in SAID PROPERTY and until the time, if any, that said
mortgage shall be satisfied of record or said Leasehold Mortgagee shall give
LESSOR written notice that said mortgage has been satisfied, and further, LESSOR
agrees and acknowledges as follows for the benefit of the Leasehold Mortgagee
(all of which agreements and covenants shall be cumulative, so that if a
Leasehold Mortgagee exercises rights or remedies under any one of the following
paragraphs the same shall not be deemed an election of remedies and the
Leasehold Mortgagee shall continue to have all other rights and remedies
provided for below):
(1) LESSOR shall not accept any voluntary cancellation, surrender,
termination or abandonment of the Lease by LESSEE and no modification or
amendment of this Lease shall be binding upon the Leasehold Mortgagee or
affect the lien of the leasehold Mortgage if done without the written
consent of the Leasehold Mortgagee.
(2) If LESSOR shall give any notice, demand or election (hereafter
in this paragraph collectively referred to as "notices") to LESSEE
hereunder, LESSOR shall at the same time send a copy of such notice by
United States Mail, postage prepaid, certified mail, to the Leasehold
Mortgagee, and the giving of such notice shall be deemed complete upon the
date the United States mail certifies that notice was delivered to the
Leasehold Mortgagee. No notice given by LESSOR to LESSEE shall be binding
upon or affect the Leasehold Mortgagee unless a copy of said notice shall
be delivered as provided herein
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to said Leasehold Mortgagee. In the case of any assignment of the mortgage or
mortgages held by it or change in address of any Leasehold Mortgagee, said
assignee of Leasehold Mortgagee, by written notice by United States Mail,
postage prepaid, certified mail, to LESSOR, may change the name of said
Leasehold Mortgagee and/or the address to which such copies of notices are to be
sent by notice to LESSOR.
(3) Notwithstanding anything to the contrary herein, the Leasehold
Mortgagee shall have the right to perform any term, covenant, condition or
agreement of this Lease to be performed by LESSEE (excluding any covenant,
condition or term in which the performance thereof would require a gaming
license) and to remedy any default by LESSEE hereunder, and LESSOR shall accept
such performance by the Leasehold Mortgagee with the same force and effect as if
furnished by LESSEE. However, should Leasehold Mortgagee exercise its rights
under this provision, it will indemnify and hold LESSOR harmless from and
against any and all loss, costs, liability and expense (including reasonable
attorneys' fees) resulting from such action to the extent and so long as
LESSOR's actions are pursuant to and in compliance with instructions from the
Leasehold Mortgagee.
(4) If LESSOR shall give a notice by United States Mail, postage prepaid,
certified mail, of a default by LESSEE under this Lease and if such default
shall not be remedied within any applicable grace period and LESSOR shall become
entitled to re-enter SAID PROPERTY or terminate this Lease, then, before
re-entering SAID PROPERTY or terminating this Lease, LESSOR shall give the
Leasehold Mortgagee not less than thirty (30) days additional written notice of
the default and shall allow the Leasehold Mortgagee such additional thirty (30)
days within which to cure the default, or, in the case of a default (other than
a default in the payment of any rent or other sum of money under this Lease)
which cannot in the exercise of diligence be cured within said thirty (30) day
period, shall allow the Leasehold Mortgagee such additional thirty (30) days to
commence the curing of the default, in which event LESSOR shall not re-enter
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SAID PROPERTY or terminate this Lease, so long as the Leasehold Mortgagee, or
LESSEE, is diligently and in good faith engaged in curing default, so long as
all payments under the Lease remain current as described in the Lease during the
additional time to cure.
(5) LESSEE may delegate irrevocably to the Leasehold Mortgagee the
authority to exercise any or all of LESSEE's rights hereunder (including
without limitation the authority to exercise any option to extend or renew
the term hereof), but no such delegation shall be binding upon LESSOR
unless and until either LESSEE or the Leasehold Mortgagee shall give to
LESSOR a true copy by United States Mail, postage prepaid, certified mail,
of a written instrument effecting such delegation and indemnifying LESSOR
for any dispute between Lessor and Leasehold Mortgagee relating to such
delegation or any conflicting claims as between LESSEE and Leasehold
Mortgagee so long as LESSOR's actions are in compliance with and pursuant
to instructions from the Leasehold Mortgagee. For the purpose of exercising
such rights, Leasehold Mortgagee shall, for the purposes of this Lease, be
deemed to be the LESSEE. However, LESSEE shall remain entitled to receive
the notices provided for under the Lease.
(f) If LESSOR terminates this Lease, then LESSOR will notify the Leasehold
Mortgagee of such termination (a "Termination Notice"), which notice shall set
forth all sums due to LESSOR under the Lease, and upon the written request of
the Leasehold Mortgagee, LESSOR will enter into a now lease of SAID PROPERTY
with the Leasehold Mortgagee for the remainder of the Lease term, effective as
of the date of such termination, at the rent and additional rent and upon the
terms, provisions, covenants and agreements herein contained (including, without
limitation, all rights, options, or privileges to extend or renew the term
hereof) provided:
(1) the Leasehold Mortgagee shall request LESSOR for such a new lease
within thirty (30) days after the date of the Termination Notice and such
written request by United States Mail, postage prepaid, certified mail, is
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accompanied by payment to LESSOR of all sums then due to LESSOR under this
Lease as described in the Termination Notice;
(2) the Leasehold Mortgagee shall pay to LESSOR, at the time of the
execution and delivery of said new lease, any and all reasonable expenses,
including legal and attorneys' fees, to which the LESSOR shall have been
subjected by reason of such termination; and
(3) the Leasehold Mortgagee shall, on or before execution and
delivery of said new lease, perform and observe all the other covenants and
conditions on LESSEE's part to be performed and observed to the extent that
LESSEE shall have failed to perform and observe the same, except that (a)
with respect to any default which cannot be cured by the Leasehold
Mortgagee until it obtains possession of SAID PROPERTY, the Leasehold
Mortgagee shall have a reasonable time after the Leasehold Mortgagee
obtains possession, to cure such default, provided the Leasehold Mortgagee
shall first agree in writing to proceed diligently to remedy said default
after it obtains possession of SAID PROPERTY and shall in fact proceed
diligently and in good faith to do so and shall in fact so do, and (b) in
no event shall the Leasehold Mortgagee be required to cure a default
related to bankruptcy, insolvency, a prohibited transfer, failure to
deliver financial information relating to LESSEE, (to the extent, if any,
that any of the foregoing actually constitute(s) a non-monetary default
under this Lease), and any other non-monetary default that by its nature
relates only to LESSEE or its affiliates or can reasonably be performed
only by LESSEE or its affiliates. Upon execution and delivery of such new
lease, any subleases which may have theretofore been assigned and
transferred to LESSOR shall thereupon be assigned and transferred by LESSOR
to the new lessee. During the period from the date of the termination of
this Lease until the date the term of the new lease commences, LESSOR shall
not terminate any sublease or seek to recover possession of any sublet
space without permission of the Leasehold Mortgagee, except that LESSOR may
elect to do so by reason of a default (beyond any applicable notice or
grace periods) by
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any subtenant under the terms, covenants or conditions on such subtenant's
part to be performed or complied with pursuant to such sublease.
(g) Any now lease entered into pursuant to this Lease shall be in
recordable form. Notice is hereby given to any intervening claimants that such
new lease shall be superior to all rights, liens and interests intervening
between the date of this lease and the date of such new lease period. Such new
lease shall be free of all rights of the originally named LESSEE hereunder. The
provisions of the immediately preceding sentence shall be self-executing.
LESSOR, however, does not in any way assure, guarantee or warrant that said new
lease shall be superior under applicable law and therein granted a priority
status.
(h) Upon written request of LESSEE or of the Leasehold Mortgagee, LESSOR
will:
(1) deliver to them or any of them a separate written instrument
signed and acknowledged by LESSOR setting forth and confirming the
provisions of this Lease;
(2) acknowledge to them or any of them in writing the receipt by
LESSOR of any notice or instrument received by the LESSOR pursuant to the
provisions of this Lease.
(i) To the best of the ability of the LESSOR, when a new lease is entered
into with the Leasehold Mortgagee or its designee (such holder or designee being
herein called the "Acquiring Holder" and the leasehold mortgage of such
Acquiring Holder being herein called the "Acquiring Holder's Leasehold
Mortgage"), the liens on and estates and other interests in SAID PROPERTY or
this Lease of all persons holding directly or indirectly under or through LESSEE
(including the Acquiring Holder's Leasehold Mortgage), other than liens, estates
and interests which are subordinate to the Acquiring Holder's Leasehold
Mortgage, shall immediately and without documentation continue in effect, attach
to the new lease and be reinstated as to each other to the same extent, and in
the same manner, order and priority, as if (1) the new lease were this Lease,
(2) this Lease had not been terminated and (3) the Acquiring Holder had acquired
the leasehold estate under this Lease by
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assignment on the date the term of the new lease commences. For the purposes of
the preceding sentences, each lien, estate or interest which could have been
extinguished by the foreclosure of the Acquiring Holder's Leasehold Mortgage
shall be deemed to be subordinate to the Acquiring Holder's Leasehold Mortgage.
(j) Notwithstanding anything in this Lease to the contrary, the Leasehold
Mortgagee shall be entitled to participate in any proceedings relating to any
condemnation of all or part of the Lease or the leasehold interest created by
this Lease. In both a partial and total taking, any award paid with respect to
the Lease or the Leasehold Interest created by this Lease shall first be applied
to pay off in full, the Indebtedness secured by the Leasehold Mortgage.
Notwithstanding the foregoing, in the event of a partial condemnation, and with
the consent of the Leasehold Mortgagee, any condemnation proceeds may be applied
instead to restore the portion of SAID PROPERTY not condemned pursuant to
disbursement procedures deemed appropriate by the Leasehold Mortgagee.
(k) Notwithstanding anything in this Lease to the contrary, all proceeds
of fire and other hazard insurance policies shall be delivered to the Leasehold
Mortgagee, if any. Such insurance proceeds shall be applied first to pay off in
full, in order of priority, the indebtedness secured by the Leasehold Mortgage,
or as otherwise provided in the senior Leasehold Mortgage. The Leasehold
Mortgagees are hereby empowered to participate in any settlement, arbitration or
proceeding involving such a casualty.
(l) The Leasehold Mortgagee shall have the right, by giving notice in
writing by United States Mail, postage prepaid, certified mail, to LESSOR, to
irrevocably and exclusively delegate any rights and remedies granted by this
Lease to the Leasehold Mortgage to any collateral assignee of the Leasehold
Mortgagee's Leasehold Mortgage. Such collateral assignee shall be entitled to
all the same rights, benefits, privileges, protections and notices as would
apply to the Leasehold Mortgagee. In the event of any conflicting claims between
the Leasehold Mortgagee and a collateral assignee of such Leasehold Mortgagee's
Leasehold Mortgage, LESSOR shall honor the claims of the collateral assignee (to
the exclusion of the claims of the Leasehold
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Mortgagee), provided that such collateral assignee agrees to indemnify LESSOR
and hold LESSOR harmless from and against any and all loss, cost, liability and
expense (including reasonable attorneys' fees) arising from any litigation or
other dispute between such collateral assignee and the Leasehold Mortgagee from
which its rights derive.
(m) Within fifteen days after written request therefor from the Leasehold
Mortgagee, LESSOR shall deliver to the Leasehold Mortgagee a certificate signed
by LESSOR in form reasonably designated by the Leasehold Mortgagee, certifying
as to: (1) the rent payable under this Lease; (2) the term of this Lease and the
status of LESSEE's extension rights, if any; (3) the nature of any known
defaults by LESSEE alleged by LESSOR; and (4) any other matters reasonably
requested by the Leasehold Mortgagee.
(n) Should Leasehold Mortgagee for any reason take possession of SAID
PROPERTY, it shall be subject to and comply fully with all of the provisions and
conditions of this Lease which would bind the LESSEE, but only for so long as
the Leasehold Mortgagee has not assigned its interest under the lease or
abandoned SAID PROPERTY.
(o) The LESSOR agrees with Mortgagee of the Leasehold Mortgagee consented
to in subparagraph (a) of this Article that the rights hereunder of Leasehold
Mortgagee shall be exercisable by such Leasehold Mortgagee in the order of the
priority of lien or other security interest of their respective Leasehold
Mortgage, but it shall not be the duty or obligation of the LESSOR to assure
compliance with this provision.
(p) LESSOR consents to any exercise of remedies by any Leasehold Mortgagee
including acceptance of an assignment, deed or other conveyance in lieu of
foreclosure.
(q) Any notice which LESSOR is required to give to any Leasehold Mortgagee
hereunder shall be deemed to have been given when the United States Postal
Service certifies that such notice was delivered to the Leasehold Mortgagee at
the address
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specified in this lease or at such other address as may be specified from time
to time by the Leasehold Mortgagee.
11. DEFAULT.
The parties herein expressly agree that if DEFAULT shall be made in the
payment of any tax, assessment or rent due pursuant to this LEASE, then and in
any such event of DEFAULT it shall be lawful for LESSOR to enter upon SAID
PROPERTY, or any part thereon, upon LESSOR's thirty (30) day written notice to
LESSEE, either with or without process of law, to re-enter and repossess the
same, and to distrain for any rent or assessment that may be due thereon, at the
election of LESSOR, but nothing herein is to be construed to mean that LESSOR is
not permitted to hold the said LESSEE liable for any unpaid rent or assessment
to that time. As to all other conditions, covenants, and obligations imposed on
LESSEE herein, enforcement shall be by proceeding at law or in equity against
any person violating or attempting to violate said conditions, covenants, and
obligations, to restrain violation and to recover damages, if any, including
reasonable expenses of litigation and reasonable attorney's fees, which LESSEE
expressly agrees to pay. Such enforcement by proceedings at law or in equity may
be instituted at any time after thirty (30) days written notice to LESSEE if the
default or violation has not been corrected within that thirty (30) day period.
Invalidation of any provision of this lease by judgment or court order shall,
unless agreed otherwise by the parties, operate as an approved cancellation of
this lease.
12. FORFEITURE, DEFAULT OR CANCELLATION.
In the event of any FORFEITURE, DEFAULT OR CANCELLATION of this lease or
termination of the term as aforesaid, said LESSEE shall quit, deliver up and
surrender possession of SAID PROPERTY, and thereupon this lease and all
agreements and covenants on LESSOR's behalf to be performed and kept, shall
cease, terminate and be utterly void, the same as if the lease had not been
made. In addition thereof, LESSOR shall be entitled to whatever remedies It may
have at law or
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equity for the collection of any unpaid rental hereunder, or for any other sums,
for damages or otherwise, that it may have sustained on account of LESSEE'S
nonfulfillment or nonperformance of the terms and conditions of this lease.
Immediately upon the termination of this lease, whether by FORFEITURE,
DEFAULT, or CANCELLATION, LESSOR shall be entitled to take possession of SAID
PROPERTY, custom and usage to the contrary notwithstanding. If LESSEE declines
or fails to remove structures and equipment occupying and erected upon the
leased premises within ninety (90) days after expiration or termination of this
lease, such structures and equipment will be deemed forfeited by LESSEE, and may
be removed and/or sold by LESSOR after ten (10) days written notice by certified
mail addressed to LESSEE.
Any costs incurred by LESSOR in removal of said structures and equipment
shall be paid for from the proceeds of sale of such structures and equipment. If
funds derived from sale of structures and equipment are insufficient to pay
costs of removal, LESSOR shall have, and is hereby granted a lien upon the
interest, if any, of LESSEE enforceable by law provided.
13. RENT NOT REFUNDABLE.
LESSOR and LESSEE agree that any rent paid during the term of this lease is
non-refundable and LESSEE waives any right or claim it may have to refund of
rents paid under the term of this lease.
14. IMPROVEMENTS.
LESSOR acknowledges that the improvements which presently exist and which
are to be constructed on SAID PROPERTY are not the property of LESSOR. LESSEE
shall not construct under the terms of this lease any building or pier of any
type on adjoining State property.
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15. RESTRICTIONS ON USE.
LESSEE shall comply with any and all applicable federal, state, county or
city laws, statutes, regulations, building codes, building requirements, safety
or conservation regulations, fire codes, ordinances, pollution standards, or
zoning regulations. LESSEE specifically agrees to provide parking for all
permitted uses developed on SAID PROPERTY in conformance with City of Biloxi
requirements. LESSEE further agrees to conform with City of Biloxi Landscaping
Rules and Regulations. LESSEE further agrees not to fill or cover more than
66.7% of the surface area of SAID PROPERTY with structures or other improvements
of any kind in order to maintain at least one third of the surface area of SAID
PROPERTY as open water.
If LESSEE fails to make permitted use of SAID PROPERTY or abandons SAID
PROPERTY, or uses SAID PROPERTY in violation of any applicable law or regulation
as aforesaid, this lease may be terminated or canceled by LESSOR after thirty
(30) days written notice to LESSEE.
16. SUSPENSION OR CANCELLATION OF LICENSE.
Should the Gaming Commission suspend or cancel the gaming license pursuant
to which the "dockside casino" contemplated by this lease is operated, said
suspension or cancellation shall, at the option of the LESSOR, be sufficient
grounds for immediate termination of the lease and removal of the casino vessel
at the sole expense of LESSEE.
17. NO CLAIM OF TITLE OR INTEREST.
LESSEE, in accepting this lease, does hereby agree that no claim of title
or interest to SAID PROPERTY shall be made by reason of the occupancy or use
thereof; that all title and interest to SAID PROPERTY is vested in the LESSOR.
LESSEE further acknowledges and agrees that he is entitled to no rights to
adjoining submerged lands or tidelands as a result of this lease.
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18. CATASTROPHIC DESTRUCTION.
In the event of catastrophic destruction by natural causes of LESSEE'S
improvements on SAID PROPERTY, LESSEE may terminate this lease at its option,
provided SAID PROPERTY is surrendered in a condition at least equal to that at
the inception of this lease. LESSOR agrees that it shall interpose no objection
should LESSEE decide to rebuild those improvements demolished in such a
catastrophe.
19. DUE DILIGENCE.
LESSEE shall be responsible for any damages that may be caused to LESSOR'S
property by the activities of LESSEE under this lease, and shall exercise due
diligence in the protection of other property of LESSOR in the vicinity thereof
against damage or waste from any and all causes. LESSEE shall not deposit any
refuse on any State property adjoining SAID PROPERTY. Disposition of refuse and
waste shall be consistent with local and State health regulations.
20. INDEMNITY AND HOLD HARMLESS.
LESSEE agrees to hold and save harmless, protect and indemnify LESSOR, the
Secretary of State and his successors, employees, officers and agents, from and
against any and all loss, damages, claims, suits or actions at law or equity,
judgments and costs, including attorney's fees, which may arise or grow out of
any injury or death of persons or loss or damage to property connected with
LESSEE'S exercise of any right granted or conferred hereby, or LESSEE'S use,
maintenance, operation or condition of the property herein leased or the
activities thereon conducted by LESSEE, whether sustained by LESSEE, his
respective agents or employees, or by any other persons, or corporations which
seek to hold LESSOR liable.
In addition to the general indemnity agreement set forth in the immediately
preceding paragraph, LESSEE also specifically agrees to hold and save harmless,
protect and indemnify LESSOR, the Secretary of State and his successors,
employees, officers and agents, from and against any and all loss, damages,
claims, suits or actions at law or equity, judgments and costs, including
attorney's fees, which may
16
arise or grow out of LESSOR'S reliance upon LESSEE'S representation that LESSEE
has the right to occupy the uplands adjacent to SAID PROPERTY and to exercise
littoral rights in connection therewith.
In executing this Lease, LESSOR is relying on a survey and/or legal
description (see Exhibit 1) provided by the LESSEE. LESSEE expressly assumes all
liability for the correctness thereof and expressly agrees to indemnify and save
harmless LESSOR, its employees, officers and agents, for all liability, damages
(including damages to land, aquatic life and other natural resources), expenses,
causes of actions, suits, claims, costs, fees, including attorneys' fees and
costs, penalties (civil and criminal) or judgments arising out of State's
reliance on LESSEE's survey.
21. QUIET AND PEACEFUL POSSESSION.
LESSEE shall have quiet and peaceful possession of SAID PROPERTY so long as
compliance is made by LESSEE with the terms of this agreement. LESSEE agrees to
deliver possession of SAID PROPERTY peaceably and promptly within ten (10) days
after the expiration or termination of this lease.
22. RIGHT OF ENTRY.
LESSOR reserves the right to enter onto SAID PROPERTY to inspect the
premises to determine compliance with the lease terms herein.
23. PERMITTED USE.
All property of LESSEE shall be maintained by LESSEE at LESSEE'S expense
and in a clean, orderly, healthful, and attractive condition, subject to
inspection by LESSOR or his representative at any time. LESSEE shall, at its
sole cost and expense, make any and all additions to, repairs, alterations,
maintenance, replacements, or changes about and to the improvements on SAID
PROPERTY, which may be required by any public authority affecting the property
and its use. It is expressly agreed by and between the parties that LESSEE will
not occupy or use, nor permit to be occupied or used, SAID PROPERTY for any
unlawful purposes.
17
It is specifically agreed that LESSEE will use SAID PROPERTY for the
docking of a single gaming vessel as shown on attached Exhibit 1, to be operated
under a Mississippi gaming license issued to LESSEE, as shown in Exhibit 3
attached hereto. LESSEE shall commence permitted use on or before September 1,
1994.
24. LESSOR NOT RESPONSIBLE.
LESSEE assumes full responsibility for the condition of the promises and
LESSOR shall not be liable or responsible for any damages or injuries caused by
any vices or defects therein to LESSEE or to any occupant or to anyone in or on
SAID PROPERTY who derives his right to be thereon from LESSEE. LESSEE agrees to
maintain the leased premises in good condition, keeping the structures and
equipment located thereon in a good state of repair in the interests of public
health and safety.
25. LIABILITY INSURANCE.
LESSEE shall secure and maintain throughout the term of the lease a
liability insurance policy providing coverage in an amount not less than Five
Million Dollars against accidents, death or bodily injury or loss or damage to
property occurring on or in connection to SAID PROPERTY, or LESSEE's vessel, or
arising out of or associated with any activity of LESSEE on SAID PROPERTY.
LESSEE shall annually supply a certificate evidencing said insurance to LESSOR.
26. RESERVATION OF MINERAL RIGHTS.
LESSEE further covenants and agrees that this lease and interest of LESSEE
SHALL NOT include any mineral, oil or gas, coal, lignite, or other subterranean
rights WHATSOEVER.
27. RIGHT TO CANCEL UPON INSOLVENCY OF LESSEE.
LESSEE covenants and agrees that if an execution or process is levied upon
SAID PROPERTY or if a Petition in Bankruptcy be filed by or against LESSEE in
any court of competent jurisdiction, LESSOR shall have the right at its option,
to cancel
18
this lease. LESSEE covenants and agrees that this lease and the interest of
LESSEE hereunder shall not, without the written consent of the Secretary of
State or his successor first obtained, be subject to garnishment or sale under
execution or otherwise in any suit or proceeding which may be brought by or
against said LESSEE.
28. WAIVER NOT A DISCHARGE.
No failure, or successive failures, on the part of LESSOR to enforce any
provisions, nor any waiver or successive waivers on its part of any provision
herein, shall operate as a discharge thereof or render the same inoperative or
impair the right of LESSOR to enforce the same upon any renewal thereof or in
the event of subsequent breach or breaches.
29. CANCELLATION UPON FAILURE TO COMPLY.
LESSEE'S failure to comply with the provisions of this lease shall result,
at the option of LESSOR, in the termination or cancellation of this lease within
thirty (30) days after written notice of default is given, unless such default
is cured within thirty (30) days of receipt of such notice, except as set forth
in Article 15.
30. NOTICE.
All notifications required under the terms of this lease shall be made by
U.S. mail, return receipt requested, to the parties at the following addresses:
Secretary of State: 401 Mississippi Street
Post Office Box 136
Jackson, Mississippi 39205
Mississippi-I Gaming, L.P.: Wayne Yarbrough, General Manager
Post Office Box 369
Biloxi, Mississippi 39533
Copy to: Thomas B. Shepherd III, Esq.
Watkins Ludlam & Stennis
Post Office Box 427
Jackson, Mississippi 39205-0427
Leasehold Mortgagee: First Trust National Association
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
19
Trustee: Stephen H, Leech, Jr.
c/o Phelps Dunbar
Security Center North
200 S. Lamar Street, Suite 500
Jackson, Mississippi 39225
31. LAWS OF MISSISSIPPI TO GOVERN.
This agreement is to be governed by the laws of the STATE OF MISSISSIPPI,
both as to Interpretation and performance.
IN WITNESS WHEREOF, this lease is executed by LESSOR and LESSEE, this
the 15 day of August, 1994.
LESSOR:
------
STATE OF MISSISSIPPI
DICK MOLPUS
SECRETARY OF STATE
BY: /s/ James O. Nelson, II
------------------------------
JAMES O. NELSON, II
ASSISTANT SECRETARY OF STATE
FOR PUBLIC LANDS
LESSEE:
------
MISSISSIPPI-I GAMING, L.P.,
a Mississippi Limited Partnership
By: Bayview Yacht Club, Inc.
a Mississippi Corporation,
its Sole General Partner
BY: /s/ Richard N. Scott,
-----------------------------
RICHARD N. SCOTT,
PRESIDENT
APPROVED BY THE GOVERNOR of the State of Mississippi on the 15 day
of August, 1994.
[SIGNATURE ILLEGIBLE]
---------------------------------
GOVERNOR
20
STATE OF MISSISSIPPI
COUNTY OF Hinds
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for
said county and state, on this 15 day of August, 1994, within my jurisdiction
the within named KIRK FORDICE, personally known to me to be the GOVERNOR of the
STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing
LEASE AGREEMENT as the act and deed of said GOVERNOR for and on behalf of the
STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being
first duly authorized to so do.
[SIGNATURE ILLEGIBLE]
-----------------------
Assistant Secretary of
State
My Commission Expires:
January 1, 1996
- ----------------------
21
[LETTERHEAD OF WATKINS LUDLAM & STENNIS APPEAR HERE]
May 2, 1994
(601) 949-4863
VIA HAND DELIVERY
Mr. Gary McGee
Mississippi Gaming commission
723 North President Street
Suite 100
Jackson, MS
RE: Mississippi I Gaming, L.P. d/b/a Boomtown Biloxi
Dear Gary;
I have enclosed a revised Form 3001 Statement of Games, Tables and Slot
Machines as a supplement to the above captioned limited partnership's
application for a gaming license.
By copy of this letter I am also providing this statement to Margaret Bretz
of the Secretary of State's office, Public Lands Division for the tideland's
lease application.
Please call me if you have any questions regarding the above or need any
further information.
Sincerely,
WATKINS LUDLAM & STENNIS
/s/ Cheryn L. Nett
Cheryn L. Nett
CLN/ssb
Enclosures
cc: Wayne Yarbrough
Margaret Bretz (w/enclosures)
Thomas B. Shepherd III, Esq.
EXHIBIT 2
STATEMENT OF GAMES, TABLES, AND SLOT MACHINES
GAMES NO. TABLES NO. SLOT MACHINES NO.
Craps - 5 ___ ??? 0 ___ $.05 219 ___
Roulette -2 ___ ??? - 8 ___ $.10 0 ___
Twenty-one - 24 1 Multi-Action ___ $.25 490 ___
Keno - 1 ___ ______________ ___ ???? 27
Wheel of Fortune 0 ___ ______________ ___ $ 1.00 206 ___
Casino de Fal 0 ___ ______________ ___ $ 5.00 22 ___
Baccarat 0 ___ ______________ ___ $ 25.00 2 ___
Faro 0 ___ ______________ ___ $100.00 0 ___
??? 0 ___ ______________ ___ $500.00 0 ___
??? - 1 ___ ______________ ___ _____________ ___
Chuck-A-Luck 0 ___ ______________ ___ _____________ ___
??? 0 ___ ______________ ___ _____________ ___
Black Jack 0 ___ ______________ ___ _____________ ___
Seven-and-a-half 0 ___ ______________ ___ _____________ ___
Big Injue 0 ___ ______________ ___ _____________ ___
Klondike 0 ___ ______________ ___ _____________ ___
Beat the Banker 0 ___ ______________ ___ _____________ ___
Other (describ) 2- Caribbean Stud ___ _____________ ___
TOTAL 35 ___ TOTAL 9 ___ TOTAL 966 ___
PAGE 2 OF 2
[LETTERHEAD OF MORAN, SEYMOUR & ASSOC. APPEARS HERE]
LEGAL DESCRIPTION - OVERALL TIDELANDS BOUNDARY
- ----------------------------------------------
COMMENCE at a point on the North margin of Bay View Avenue, said point
being at the intersection of said North margin with the extension of the East
margin of Main Street; thence run North 0 degrees 30'07" East, for a distance of
352.72 feet to a point on the waters edge in the Back Bay of Biloxi, and the
POINT OF BEGINNING; thence continue North 0 degrees 30'07" East, for a distance
of 627.28 feet to a point; thence run South 89 degrees 29'53" East, for a
distance of 421.62 feet to a point; thence run South 0 degrees 30'07" West, for
a distance of 567.28 feet to a point on the waters edge in the Back Bay of
Biloxi, thence run along the waters edge, the following bearings and distances,
to wit; North 89 degrees 00'25" West, 54.89 feet, North 59 degrees 34'39" West,
35.62 feet; North 02 degrees 39'47" East, 9.06 feet; North 65 degrees 11'04"
West, 89.88 feet; North 0 degrees 47'05" West, 18.55 feet; North 07 degrees
16'10" West, 25.28 feet; South 75 degrees 11'01" West, 39.18 feet, South 09
degrees 13'15" East, 7.92 feet; South 81 degrees 54'06" West, 49.27 feet; North
08 degrees 11'59" West, 22.25 feet; South 81 degrees 26',23" West, 94.03 feet;
South 11 degrees 19'27" East, 27,44 feet; South 14 degrees 59'07" East, 79.84
feet and South 65 degrees 01'07" West, for a distance of 106.37 feet to the
POINT OF BEGINNING, containing 222,022 Square Feet, or 5.10 Acres,
approximately.
EXHIBIT 1
CERTIFICATION
- -------------
This is to CERTIFY that I have surveyed the property hereon described and
del????, and that the measurements and other data indicated are correct to the
best of my knowledge and belief.
[SIGNATURE ILLEGIBLE] 6/29/94
- -------------------------------- -------------
?RAH R.L.S 1779 Dated
[PLAN APPEARS HERE]
This property has been graphically plotted to be in Zone(s) "A9" & "A12"
------------
as published by the Federal Insurance Administration, Official Flood Hazard Map,
Community Panel Number 289252 OODBC . revised 3/15/B4.
------------- -------
EXHIBIT 1 Page 2 of 2
MISSISSIPPI-I GAMING, INC.
LEASE INFORMATION
PROPERTY IDENTIFICATION/LOCATION:
- ---------------------------------
222,022 square feet of submerged tidelands located in Section 28, Township 7
South, Range 9 West, in the second judicial district of Harrison County,
Mississippi.
LESSOR'S NAME AND ADDRESS:
- --------------------------
Secretary of State
State of Mississippi
c/o Public Lands Division
401 Mississippi Street
P. 0. Box 136
Jackson, MS 39205
LESSEE'S NAME AND ADDRESS:
- --------------------------
Mississippi-I Gaming, L.P.
P. 0. Box 369
Biloxi, MS 39533-0369
DATE CONTRACT EXECUTED:
- -----------------------
Executed July 15, 1994; commencement date July 1, 1994.
LEASE-TERMS/PRICE/PAYMENT TERMS:
- --------------------------------
Ten years from commencement date (July 1, 1994 - June 30, 2004). Annual rent
$525,000 for July 1, 1994 - June 30, 1999. Annual rent for the second five-year
period of the lease will be determined in accordance with MISS. CODE ANN. Sec.
29-1-107 (2) (Supp. 1994) or as amended and revised.
First year's rent is payable in four installments as follows:
$ 90,000.00 August 1, 1994
$145,000.00 September 1, 1994
$145,000.00 October 1, 1994
$145,000.00 November1, 1994
Subsequent rent is due annually on or before July 1.
RENEWAL TERMS/PRICE:
- --------------------
Option to extend for a renewal term of five years subject to renegotiation of
annual rent based on appraisal obtained by the lessor.
1
MISSISSIPPI-I GAMING, INC.
LEASE INFORMATION
OTHER TERMS/CONDITIONS:
- -----------------------
If Boomtown expands the gaming area within the casino beyond 1,010 games, notice
shall first be given to lessor and a corresponding adjustment to the annual
rental shall be made.
Boomtown cannot sublease, assign or transfer the property without prior written
permission of the Secretary of State. Boomtown agrees to maintain free public
access to the property and to construct and maintain all piers, wharfs and
boardwalks existing at lease execution date (see Exhibit 1).
Boomtown will pay all general taxes, special assessments, survey costs and
recording fees on the property and improvements.
Boomtown will not fill or cover more than 2/3 of the surface area of the
property with structures or other improvements; 1/3 of the surface area must be
open water.
Boomtown must maintain a liability insurance policy providing coverage of at
least $5,000,000. We must annually supply a certificate evidencing insurance.
2
STATE OF MISSISSIPPI
SECRETARY OF STATE
[LETTERHEAD OF STATE OF MISSISSIPPI]
July 15, 1994
General Paul Harvey,
Executive Director
Mississippi Gaming Commission
Post Office Box 23577
Jackson MS 39255-3577
Via Facsimile - 359-5731
- ------------------------
Re: Boomtown Casino (Mississippi-I Gaming, L.P.)
Dear General Harvey:
Mississippi-I Gaming, L.P. has executed a lease for public trust tidelands
for its casino located in Biloxi. We therefore have no objection to the casino
opening at this time. Thank you very much for your cooperation.
Sincerely,
/s/ Margaret Anne Bretz
Margaret Anne Bretz
Senior Attorney
MAB:rd
cc: Mr. Wayne Yarbrough
PUBLIC TRUST TIDELANDS LEASE
----------------------------
STATE OF MISSISSIPPI
COUNTY OF HINDS
THIS AGREEMENT, made and entered into this the _____ day of ____________,
1994, by and between the SECRETARY OF STATE, with the approval of the GOVERNOR,
for and on behalf of the STATE OF MISSISSIPPI, hereinafter referred to as
"LESSOR," and Mississippi-I Gaming, L.P., doing business as Boomtown Biloxi
Casino, a Mississippi Limited Partnership registered to do and doing business in
the State of Mississippi, hereinafter referred to as "LESSEE."
WITNESSETH:
-----------
THAT FOR THE TERM and in consideration of the rentals hereinafter set
forth, and covenants, conditions, and obligations to be observed and performed
by LESSEE, LESSOR does hereby lease and rent unto LESSEE, pursuant to the
authority of MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), the following described
submerged land or tideland, hereinafter referred to as SAID PROPERTY, to-wit:
A parcel located in Section 28, Township 7 South, Range 9 West, in the
Second Judicial District of Harrison County, Mississippi, more particularly
described as follows:
COMMENCE at a point on the North margin of Bay View Avenue, said point
being at the intersection of said North margin with the extension of the
East margin of Main Street; thence run North 0 degrees 30 minutes 7 seconds
East, for a distance of 352.72 feet to a point on the water's edge in the
Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0
degrees 30 minutes 07 seconds East for a distance of 627.28 feet to a
point; thence run South 89 degrees 29 minutes 53 seconds East, for a
distance of 421.62 feet to a point; thence run South 0 degrees 30 minutes
07 seconds West, for a distance of 567.28 feet to a point on the water's '
edge in the Back Bay of Biloxi, thence run along the waters edge, the
following bearings and distances, to wit: North 89 degrees 00 minutes 25
seconds West, 54.89 feet, North 59 degrees 34 minutes 39 seconds West,
35.62 feet; North 02 degrees 39 minutes 47 seconds East, 9.06 feet; North
65 degrees 11 minutes 04 seconds West, 89.88 feet; North 00 degrees 47
minutes 05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10 seconds
west, 25.2B feet; South 75 degrees 11 minutes 01 seconds West, 39.18 feet;
South 09 degrees 13 minutes 15 seconds East 7.92 feet; South 81 degrees 54
minutes 06 seconds West, 49.27 feet; North 08 degrees 11 minutes 59 seconds
West, 22.25 feet; South 81 degrees 26 minutes 23 seconds West, 94.03 feet;
South 11 degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees
59 minutes 07 seconds East, 79.84 feet and
South 65 degrees 01 minutes 07 seconds West, for a distance of 106.37 feet
to the POINT OF BEGINNING, containing 222,022 square feet, or 5.10 acres,
more or less. (See survey prepared by Terry J. Moran, Jr., R.L.S., dated
June 29, 1994, attached hereto as Exhibit 1 and incorporated herein by
reference.)
1. TERM.
The primary term of this lease shall be for ten (10) years, beginning on
the 1st day of July, 1994, and terminating on the 30th day of June, 2004. If
LESSEE has compiled with all terms, covenants, conditions, and obligations of
this lease, as of the expiration of the primary term, LESSEE shall have the
option to extend this lease for a renewal term of five (5) years under the same
terms and provisions of this lease, subject to the renegotiation of annual
rental based on appraisal obtained by the
LESSOR.
2. CONSIDERATION.
The parties hereto agree that SAID PROPERTY contains 222,022 square feet of
submerged lands or tidelands. The parties agree that consideration for this
lease is in part predicated on LESSEE developing and operating a single dockside
gaming facility licensed by the State of Mississippi which will contain up to
1,010 games as shown on Statement of Games dated April 27, 1994 from LESSEE to
Mississippi State Tax Commission, a copy of which is attached hereto as Exhibit
2. Should LESSEE desire to expand the gaming area within its casino beyond these
1,010 games, notice shall first be given to LESSOR and a corresponding
adjustment to the annual rental shall be made. During the period July 1, 1994,
to June 30, 1999, LESSEE covenants and agrees to pay annual rental to LESSOR in
the sum of FIVE HUNDRED TWENTY FIVE THOUSAND ($525,000.00) AND NO/100THS
DOLLARS. Payment of the first year's rent shall be made in four (4)
installments, with one payment of NINETY THOUSAND ($90,000.00) AND NO/100THS
DOLLARS to be made on or before August 1, 1994, and the remaining balance of
FOUR HUNDRED THIRTY FIVE THOUSAND ($435,000.00) AND NO/100THS DOLLARS to be paid
in three (3) equal installments on or before the 1st days of September, October
and November, 1994.
2
3. RENT ADJUSTMENT.
LESSOR shall, at the end of the first five year period of the lease term,
determine the annual rental in accordance with MISS. CODE ANN. Sec. 29-1-107(2)
(Supp. 1994) or as amended by subsequent legislation and the adopted and
published rules of the Secretary of State for the administration, control and
leasing of public trust tidelands, as amended and revised. In the event LESSOR
and LESSEE cannot agree on an adjusted rental amount, the lease may be canceled
at the option of LESSOR,
4. PLACE AND TIME OF PAYMENT.
Subject to Article 2 above regarding the first year's payment, rent shall
be payable annually on or before July 1st to the STATE OF MISSISSIPPI and shall
be submitted to the.SECRETARY OF STATE or his successor in office, through the
Public Lands Division, 401 Mississippi Street, Post Office Box 136, Jackson,
Mississippi 39205.
5. INTEREST PENALTY FOR PAST DUE RENT BALANCES.
LESSEE shall pay a late charge equal to interest at the rate of twelve
percent (12%) per annum from the date due until paid on any lease rentals,
fees, or other charges due and payable hereunder, which are not paid within
thirty (30) days of their due date.
6. RIGHT TO RE-LEASE.
Pursuant to MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), LESSEE is hereby
granted the prior right, exclusive of all other persons, to re-lease at the
expiration of this lease, as may be agreed upon between LESSEE and LESSOR, so
long as LESSEE continues to present satisfactory evidence of LESSEE's right to
occupy the adjacent uplands.
3
7. TAXES, SURVEY COSTS, RECORDING FEES.
LESSEE covenants and agrees to pay any and all general taxes and special
assessments, if ever any there be, applicable to the above described property
and LESSEE'S interest therein and improvements thereon; further, LESSEE
covenants and agrees to pay any and all survey costs and recording fees in
connection with this lease or any other fees so determined by law.
8. TRANSFERABILITY OF LEASE.
Subject to the provisions of Article 10 below, LESSEE shall NOT sublease,
assign, or transfer SAID PROPERTY (except for a lease of the gift shop within
the casino, for which permission is hereby granted by LESSOR) without the prior
written permission of the Secretary of State or his successor, which permission
shall not arbitrarily or unreasonably be withheld.
9. PUBLIC ACCESS ASSURED.
LESSEE covenants and agrees to maintain free public access to SAID PROPERTY
during the term of the lease, subject to rules and regulations reasonably
necessary to ensure the safety and convenience of all users. This provision does
not imply free access to enter the casino vessel. LESSEE further covenants to
construct and maintain all piers, wharfs and boardwalks shown on Exhibit I
attached hereto.
10. LEASEHOLD MORTGAGEE PROTECTIONS
This Article is included to give additional rights to the Leasehold
Mortgagee, as defined herein. Unless specifically so stated, the additional
rights herein shall not amend the remaining provisions of the Lease with regard
to the LESSEE, and may not be exercised, claimed or used in any manner by the
LESSEE.
(a) LESSOR does hereby consent to a Leasehold Construction and Permanent
Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents,
executed by the LESSEE as Trustor in favor of First Trust National Association,
as Beneficiary, dated as of November 10, 1993, and a Leasehold Construction and
4
Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment
of Rents (Subordinated), executed by the LESSEE, as Trustor, in favor of
Boomtown, Inc., as Beneficiary, collectively referred to as the Leasehold
Mortgage. The Leasehold Mortgage will be a lien on the interest of the LESSEE in
certain real estate described in and leased to the LESSEE pursuant to a Ground
Lease, as amended, dated as of October 19, 1993, by and between the LESSEE and
Raphael Skrmetta and public trust tideland leasehold property interest described
herein. This Leasehold Mortgage is not an encumbrance on the fee interest in the
public trust tidelands real property leased from the State of Mississippi, but
is limited strictly to a leasehold interest only. Furthermore, it is understood
and agreed that in the event the Leasehold Mortgage holder should foreclose, it
shall have the right to make a one time assignment of SAID PROPERTY to any
financially responsible person licensed by the Mississippi Gaming Commission.
(b) When a notice of default or termination is to be given to the LESSEE under
the terms of this Lease, such notice shall also be given to the Leasehold
Mortgagee at the following address: First Trust National Association, First
Trust Center, 180 East Fifth Street, St. Paul, Minnesota, 55101; and the Trustee
thereunder at the following address: Stephen H. Leech, Jr., c/o Phelps Dunbar,
Security Center North, 200 S. Lamar Street, Suite 500, Jackson, Mississippi,
39225.
Should there be more than one (1) Leasehold Mortgagee, only one address shall be
designated.
(c) For purposes of this Lease, "Leasehold Mortgage" means the deed of
trust, mortgage or lien consented to in paragraph (a) above, on this Lease
Agreement and/or the LESSEE's leasehold interest under this Lease Agreement,
which shall include facilities constructed or placed on SAID PROPERTY including
any vessels, and "Leasehold Mortgagee" shall mean the beneficiary or
beneficiaries under the Leasehold Mortgage. Any Leasehold Mortgagee may exercise
any of its right hereunder through a designee, nominee, or wholly owned
subsidiary.
(d) Notwithstanding anything to the contrary in this Article or elsewhere
in this LEASE: (1) LESSOR consents to the execution, delivery and recording or
filing of the
5
Leasehold Mortgage and the collateral assignment of such Leasehold Mortgage;
(2) LESSOR acknowledges that any beneficiary of the Leasehold Mortgage (and/or
their representatives or assignees) are Leasehold Mortgagee(s) for all purposes
of this Lease Agreement and no further conditions need to be satisfied for such
holder (and/or their representatives or assignees) to be Leasehold Mortgagee.
(e) If the Leasehold Mortgagee, as such term is hereinabove defined, shall
forward to LESSOR a copy of the Leasehold Mortgage together with a written
notice setting forth its name and address, then any such copy of said mortgage
and any such notice shall be deemed also to have been forwarded to any successor
to LESSOR's interest in SAID PROPERTY and until the time, if any, that said
mortgage shall be satisfied of record or said Leasehold Mortgagee shall give
LESSOR written notice that said mortgage has been satisfied, and further, LESSOR
agrees and acknowledges as follows for the benefit of the Leasehold Mortgagee
(all of which agreements and covenants shall be cumulative, so that if a
Leasehold Mortgagee exercises rights or remedies under any one of the following
paragraphs the same shall not be deemed an election of remedies and the
Leasehold Mortgagee shall continue to have all other rights and remedies
provided for below):
(1) LESSOR shall not accept any voluntary cancellation, surrender,
termination or abandonment of the Lease by LESSEE and no modification or
amendment of this Lease shall be binding upon the Leasehold Mortgagee or
affect the lien of the Leasehold Mortgage if done without the written
consent of the Leasehold Mortgagee.
(2) If LESSOR shall give any notice, demand or election (hereafter
in this paragraph collectively referred to as "notices") to LESSEE
hereunder, LESSOR shall at the same time send a copy of such notice by
United States Mail, postage prepaid, certified mail, to the Leasehold
Mortgagee, and the giving of such notice shall be deemed complete upon the
date the United States mail certifies that notice was delivered to the
Leasehold Mortgagee. No notice given by LESSOR to LESSEE shall be binding
upon or affect the Leasehold Mortgagee unless a copy of said notice shall
be delivered as provided herein
6
to said Leasehold Mortgagee. In the case of any assignment of the mortgage
or mortgages held by it or change in address of any Leasehold Mortgagee,
said assignee of Leasehold Mortgagee, by written notice by United States
Mail, postage prepaid, certified mail, to LESSOR, may change the name of
said Leasehold Mortgagee and/or the address to which such copies of notices
are to be sent by notice to LESSOR.
(3) Notwithstanding anything to the contrary herein, the Leasehold
Mortgagee shall have the right to perform any term, covenant, condition or
agreement of this Lease to be performed by LESSEE (excluding any covenant,
condition or term in which the performance thereof would require a gaming
license) and to remedy any default by LESSEE hereunder, and LESSOR shall
accept such performance by the Leasehold Mortgagee with the same force and
effect as if furnished by LESSEE. However, should Leasehold Mortgagee
exercise its rights under this provision, it will indemnify and hold LESSOR
harmless from and against any and all loss, costs, liability and expense
(including reasonable attorneys' fees) resulting from such action to the
extent and so long as LESSOR's actions are pursuant to and in compliance
with instructions from the Leasehold Mortgagee.
(4) If LESSOR shall give a notice by United States Mail, postage
prepaid, certified mail, of a default by LESSEE under this Lease and if
such default shall not be remedied within any applicable grace period and
LESSOR shall become entitled to re-enter SAID PROPERTY or terminate this
Lease, then, before reentering SAID PROPERTY or terminating this Lease,
LESSOR shall give the Leasehold Mortgagee not less than thirty (30) days
additional written notice of the default and shall allow the Leasehold
Mortgagee such additional thirty (30) days within which to cure the
default, or, in the case of a default (other than a default in the payment
of any rent or other sum of money under this Lease) which cannot in the
exercise of diligence be cured within said thirty (30) day period, shall
allow the Leasehold Mortgagee such additional thirty (30) days to commence
the curing of the default, in which event LESSOR shall not re-enter
7
SAID PROPERTY or terminate this Lease, so long as the Leasehold Mortgagee,
or LESSEE, is diligently and in good faith engaged in curing default, so
long as all payments under the Lease remain current as described in the
Lease during the additional time to cure.
(5) LESSEE may delegate irrevocably to the Leasehold Mortgagee the
authority to exercise any or all of LESSEE's rights hereunder (including
without limitation the authority to exercise any option to extend or renew
the term hereof), but no such delegation shall be binding upon LESSOR
unless and until either LESSEE or the Leasehold Mortgagee shall give to
LESSOR a true copy by United States Mail, postage prepaid, certified mail,
of a written instrument effecting such delegation and indemnifying LESSOR
for any dispute between Lessor and Leasehold Mortgagee relating to such
delegation or any conflicting claims as between LESSEE and Leasehold
Mortgagee so long as LESSOR's actions are in compliance with and pursuant
to instructions from the Leasehold Mortgagee. For the purpose of exercising
such rights, Leasehold Mortgagee shall, for the purposes of this Lease, be
deemed to be the LESSEE. However, LESSEE shall remain entitled to receive
the notices provided for under the Lease.
(f) If LESSOR terminates this Lease, then LESSOR will notify the Leasehold
Mortgagee of such termination (a "Termination Notice"), which notice shall set
forth all sums due to LESSOR under the Lease, and upon the written request of
the Leasehold Mortgagee, LESSOR will enter into a new lease of SAID PROPERTY
with the Leasehold Mortgagee for the remainder of the Lease term, effective as
of the date of such termination, at the rent and additional rent and upon the
terms, provisions, covenants and agreements herein contained (including, without
limitation, all rights, options, or privileges to extend or renew the term
hereof) provided:
(1) the Leasehold Mortgagee shall request LESSOR for such a new lease
within thirty (30) days after the date of the Termination Notice and such
written request by United States Mail, postage prepaid, certified mail, is
8
accompanied by payment to LESSOR of all sums then due to LESSOR under this
Lease as described in the Termination Notice;
(2) the Leasehold Mortgagee shall pay to LESSOR, at the time of the
execution and delivery of said new lease, any and all reasonable expenses,
including legal and attorneys' fees, to which the LESSOR shall have been
subjected by reason of such termination; and
(3) the Leasehold Mortgagee shall, on or before execution and
delivery of said new lease, perform and observe all the other covenants and
conditions on LESSEE's part to be performed and observed to the extent that
LESSEE shall have failed to perform and observe the same, except that (a)
with respect to any default which cannot be cured by the Leasehold
Mortgagee until it obtains possession of SAID PROPERTY, the Leasehold
Mortgagee shall have a reasonable time after the Leasehold Mortgagee
obtains possession, to cure such default, provided the Leasehold Mortgagee
shall first agree in writing to proceed diligently to remedy said default
after it obtains possession of SAID PROPERTY and shall in fact proceed
diligently and in good faith to do so and shall in fact so do, and (b) in
no event shall the Leasehold Mortgagee be required to cure a default
related to bankruptcy, insolvency, a prohibited transfer, failure to
deliver financial information relating to LESSEE, (to the extent, if any,
that any of the foregoing actually constitute(s) a non-monetary default
under this Lease), and any other non-monetary default that by its nature
relates only to LESSEE or its affiliates or can reasonably be performed
only by LESSEE or its affiliates. Upon execution and delivery of such new
lease, any subleases which may have theretofore been assigned and
transferred to LESSOR shall thereupon be assigned and transferred by LESSOR
to the new lessee. During the period from the date of the termination of
this Lease until the date the term of the new lease commences, LESSOR shall
not terminate any sublease or seek to recover possession of any sublet
space without permission of the Leasehold Mortgagee, except that LESSOR may
elect to do so by reason of a default (beyond any applicable notice or
grace periods) by
9
any subtenant under the terms, covenants or conditions on such subtenant's
part to be performed or complied with pursuant to such sublease.
(g) Any now lease entered into pursuant to this Lease shall be in
recordable form. Notice Is hereby given to any intervening claimants that such
new lease shall be superior to all rights, liens and interests intervening
between the date of this lease and the date of such new lease period. Such new
lease shall be free of all rights of the originally named LESSEE hereunder. The
provisions of the immediately preceding sentence shall be self-executing.
LESSOR, however, does not in any way assure, guarantee or warrant that said new
lease shall be superior under applicable law and therein granted a priority
status.
(h) Upon written request of LESSEE or of the Leasehold Mortgagee, LESSOR
will:
(1) deliver to them or any of them a separate written instrument
signed and acknowledged by LESSOR setting forth and confirming the
provisions of this Lease;
(2) acknowledge to them or any of them in writing the receipt by
LESSOR of any notice or instrument received by the LESSOR pursuant to the
provisions of this Lease.
(i) To the best of the ability of the LESSOR, when a new lease is entered
into with the Leasehold Mortgagee or Its designee (such holder or designee being
herein called the "Acquiring Holder" and the leasehold mortgage of such
Acquiring Holder being herein called the "Acquiring Holder's Leasehold
Mortgage"), the liens on and estates and other interests in SAID PROPERTY or
this Lease of all persons holding directly or indirectly under or through LESSEE
(including the Acquiring Holder's Leasehold Mortgage), other than liens, estates
and interests which are subordinate to the Acquiring Holder's Leasehold
Mortgage, shall immediately and without documentation continue in effect, attach
to the new lease and be reinstated as to each other to the same extent, and in
the same manner, order and priority, as if (1) the new lease were this Lease,
(2) this Lease had not been terminated and (3) the Acquiring Holder had acquired
the leasehold estate under this Lease by
10
assignment on the date the term of the.new lease commences. For the purposes of
the preceding sentences, each lien, estate or interest which could have been
extinguished by the foreclosure of the Acquiring Holder's Leasehold Mortgage
shall be deemed to be subordinate to the Acquiring Holder's Leasehold Mortgage.
(j) Notwithstanding anything in this Lease to the contrary, the Leasehold
Mortgagee shall be entitled to participate in any proceedings relating to any
condemnation of all or part of the Lease or the leasehold interest created by
this Lease. In both a partial and total taking, any award paid with respect to
the Lease or the Leasehold Interest created by this Lease shall first be applied
to pay off in full, the Indebtedness secured by the Leasehold Mortgage.
Notwithstanding the foregoing, in the event of a partial condemnation, and with
the consent of the Leasehold Mortgagee, any condemnation proceeds may be applied
instead to restore the portion of SAID PROPERTY not condemned pursuant to
disbursement procedures deemed appropriate by the Leasehold Mortgagee.
(k) Notwithstanding anything in this Lease to the contrary, all proceeds
of fire and other hazard insurance policies shall be delivered to the Leasehold
Mortgagee, if any. Such insurance proceeds shall be applied first to pay off in
full, in order of priority, the indebtedness secured by the Leasehold Mortgage,
or as otherwise provided in the senior Leasehold Mortgage. The Leasehold
Mortgagees are hereby empowered to participate in any settlement, arbitration or
proceeding involving such a casualty.
(l) The Leasehold Mortgagee shall have the right, by giving notice in
writing by United States Mail, postage prepaid, certified mail, to LESSOR, to
irrevocably and exclusively delegate any rights and remedies granted by this
Lease to the Leasehold Mortgage to any collateral assignee of the Leasehold
Mortgagee's Leasehold Mortgage. Such collateral assignee shall be entitled to
all the same rights, benefits, privileges, protections and notices as would
apply to the Leasehold Mortgagee. In the event of any conflicting claims between
the Leasehold Mortgagee and a collateral assignee of such Leasehold Mortgagee's
Leasehold Mortgage, LESSOR shall honor the claims of the collateral assignee (to
the exclusion of the claims of the Leasehold
11
Mortgagee), provided that such collateral assignee agrees to indemnify LESSOR
and hold LESSOR harmless from and against any and all loss, cost, liability and
expense (including reasonable attorneys' fees) arising from any litigation or
other dispute between such collateral assignee and the Leasehold Mortgagee from
which its rights derive.
(m) Within fifteen days after written request therefor from the Leasehold
Mortgagee, LESSOR shall deliver to the Leasehold Mortgagee a certificate
signed by LESSOR in form reasonably designated by the Leasehold Mortgagee,
certifying as to: (1) the rent payable under this Lease; (2) the term of this
Lease and the status of LESSEE's extension rights, if any; (3) the nature of any
known defaults by LESSEE alleged by LESSOR; and (4) any other matters reasonably
requested by the Leasehold Mortgagee.
(n) Should Leasehold Mortgagee for any reason take possession of SAID
PROPERTY, it shall be subject to and comply fully with all of the provisions and
conditions of this Lease which would bind the LESSEE, but only for so long as
the Leasehold Mortgagee has not assigned its interest under the lease or
abandoned SAID PROPERTY.
(o) The LESSOR agrees with Mortgagee of the Leasehold Mortgagee consented
to in subparagraph (a) of this Article that the rights hereunder of Leasehold
Mortgagee shall be exercisable by such Leasehold Mortgagee in the order of the
priority of lien or other security interest of their respective Leasehold
Mortgage, but it shall not be the duty or obligation of the LESSOR to assure
compliance with this provision.
(p) LESSOR consents to any exercise of remedies by any Leasehold Mortgagee
including acceptance of an assignment, deed or other conveyance in lieu of
foreclosure.
(q) Any notice which LESSOR is required to give to any Leasehold Mortgagee
hereunder shall be deemed to have been given when the United States Postal
Service certifies that such notice was delivered to the Leasehold Mortgagee at
the address
12
specified In this lease or at such other address as may be specified from time
to time by the Leasehold Mortgagee.
11. DEFAULT.
The parties herein expressly agree that K DEFAULT shall be made in the
payment of any tax, assessment or rent due pursuant to this LEASE, then and in
any such event of DEFAULT it shall be lawful for LESSOR to enter upon SAID
PROPERTY, or any part thereon, upon LESSOR's thirty (30) day written notice to
LESSEE, either with or without process of law, to re-enter and repossess the
same, and to distrain for any rent or assessment that may be due thereon, at the
election of LESSOR, but nothing herein is to be construed to mean that LESSOR is
not permitted to hold the said LESSEE liable for any unpaid rent or assessment
to that time. As to all other conditions, covenants, and obligations imposed on
LESSEE herein, enforcement shall be by proceeding at law or in equity against
any person violating or attempting to violate said conditions, covenants, and
obligations, to restrain violation and to recover damages, if any, including
reasonable expenses of litigation and reasonable attorney's fees, which LESSEE
expressly agrees to pay. Such enforcement by proceedings at law or in equity may
be instituted at any time after thirty (30) days written notice to LESSEE if the
default or violation has not been corrected within that thirty (30) day period.
Invalidation of any provision of this lease by judgment or court order shall,
unless agreed otherwise by the parties, operate as an approved cancellation of
this lease.
12. FORFEITURE, DEFAULT OR CANCELLATION.
In the event of any FORFEITURE, DEFAULT OR CANCELLATION of this lease or
termination of the term as aforesaid, said LESSEE shall quit, deliver up and
surrender possession of SAID PROPERTY, and thereupon this lease and all
agreements and covenants on LESSOR's behalf to be performed and kept, shall
cease, terminate and be utterly void, the same as if the lease had not been
made. In addition thereof, LESSOR shall be entitled to whatever remedies It may
have at law or
13
equity for the collection of any unpaid rental hereunder, or for any other sums,
for damages or otherwise, that it may have sustained on account of LESSEE'S
nonfulfillment or nonperformance of the terms and conditions of this lease.
Immediately upon the termination of this lease, whether by FORFEITURE,
DEFAULT, or CANCELLATION, LESSOR shall be entitled to take possession of SAID
PROPERTY, custom and usage to the contrary notwithstanding. If LESSEE declines
or fails to remove structures and equipment occupying and erected upon the
leased premises within ninety (90) days after expiration or termination of this
lease, such structures and equipment will be deemed forfeited by LESSEE, and may
be removed and/or sold by LESSOR after ten (10) days written notice by certified
mail addressed to LESSEE.
Any costs incurred by LESSOR in removal of said structures and equipment
shall be paid for from the proceeds of sale of such structures and equipment. If
funds derived from sale of structures and equipment are insufficient to pay
costs of removal, LESSOR shall have, and is hereby granted a lien upon the
interest, if any, of LESSEE enforceable by law provided.
13. RENT NOT REFUNDABLE.
LESSOR and LESSEE agree that any rent paid during the term of this lease is
non-refundable and LESSEE waives any right or claim it may have to refund of
rents paid under the term of this lease.
14. IMPROVEMENTS.
LESSOR acknowledges that the improvements which presently exist and which
are to be constructed on SAID PROPERTY are not the property of LESSOR. LESSEE
shall not construct under the terms of this lease any building or pier of any
type on adjoining State property.
14
15. RESTRICTIONS ON USE.
LESSEE shall comply with any and all applicable federal, state, county or
city laws, statutes, regulations, building codes, building requirements, safety
or conservation regulations, fire codes, ordinances, pollution standards, or
zoning regulations. LESSEE specifically agrees to provide parking for all
permitted uses developed on SAID PROPERTY in conformance with City of Biloxi
requirements. LESSEE further agrees to conform with City of Biloxi Landscaping
Rules and Regulations. LESSEE further agrees not to fill or cover more than
66.7% of the surface area of SAID PROPERTY with structures or other improvements
of any kind in order to maintain at least one third of the surface area of SAID
PROPERTY as open water.
If LESSEE fails to make permitted use of SAID PROPERTY or abandons SAID
PROPERTY, or uses SAID PROPERTY in violation of any applicable law or regulation
as aforesaid, this lease may be terminated or canceled by LESSOR after thirty
(30) days written notice to LESSEE.
16. SUSPENSION OR CANCELLATION OF LICENSE.
Should the Gaming Commission suspend or cancel the gaming license pursuant
to which the "dockside casino" contemplated by this lease is operated, said
suspension or cancellation shall, at the option of the LESSOR, be sufficient
grounds for immediate termination of the lease and removal of the casino vessel
at the sole expense of LESSEE.
17. NO CLAIM OF TITLE OR INTEREST.
LESSEE, in accepting this lease, does hereby agree that no claim of title
or interest to SAID PROPERTY shall be made by reason of the occupancy or use
thereof; that all title and interest to SAID PROPERTY is vested in the LESSOR.
LESSEE further acknowledges and agrees that he is entitled to no rights to
adjoining submerged lands or tidelands as a result of this lease.
15
18. CATASTROPHIC DESTRUCTION.
In the event of catastrophic destruction by natural causes of LESSEE'S
improvements on SAID PROPERTY, LESSEE may terminate this lease at its option,
provided SAID PROPERTY is surrendered in a condition at least equal to that at
the inception of this lease. LESSOR agrees that it shall interpose no objection
should LESSEE decide to rebuild those improvements demolished in such a
catastrophe.
19. DUE DILIGENCE.
LESSEE shall be responsible for any damages that may be caused to LESSOR'S
property by the activities of LESSEE under this lease, and shall exercise due
diligence in the protection of other property of LESSOR in the vicinity thereof
against damage or waste from any and all causes. LESSEE shall not deposit any
refuse on any State property adjoining SAID PROPERTY. Disposition of refuse and
waste shall be consistent with local and State health regulations.
20. INDEMNITY AND HOLD HARMLESS.
LESSEE agrees to hold and save harmless, protect and indemnify LESSOR, the
Secretary of State and his successors, employees, officers and agents, from and
against any and all loss, damages, claims, suits or actions at law or equity,
judgments and costs, including attorney's fees, which may arise or grow out of
any injury or death of persons or loss or damage to property connected with
LESSEE'S exercise of any right granted or conferred hereby, or LESSEE'S use,
maintenance, operation or condition of the property herein leased or the
activities thereon conducted by LESSEE, whether sustained by LESSEE, his
respective agents or employees, or by any other persons, or corporations which
seek to hold LESSOR liable.
In addition to the general indemnity agreement set forth in the immediately
preceding paragraph, LESSEE also specifically agrees to hold and save harmless,
protect and indemnify LESSOR, the Secretary of State and his successors,
employees, officers and agents, from and against any and all loss, damages,
claims, suits or actions at law or equity, judgments and costs, including
attorney's fees, which may
16
arise or grow out of LESSOR'S reliance upon LESSEE'S representation that LESSEE
has the right to occupy the uplands adjacent to SAID PROPERTY and to exercise
littoral rights in connection therewith.
In executing this Lease, LESSOR is relying on a survey and/or legal
description (see Exhibit 1) provided by the LESSEE. LESSEE expressly assumes all
liability for the correctness thereof and expressly agrees to indemnify and save
harmless LESSOR, its employees, officers and agents, for all liability, damages
(including damages to land, aquatic life and other natural resources), expenses,
causes of actions, suits, claims, costs, fees, including attorneys' fees and
costs, penalties (civil and criminal) or judgments arising out of State's
reliance on LESSEE's survey.
21. QUIET AND PEACEFUL POSSESSION.
LESSEE shall have quiet and peaceful possession of SAID PROPERTY so long as
compliance is made by LESSEE with the terms of this agreement. LESSEE agrees to
deliver possession of SAID PROPERTY peaceably and promptly within ten (10) days
after the expiration or termination of this lease.
22. RIGHT OF ENTRY.
LESSOR reserves the right to enter onto SAID PROPERTY to inspect the
premises to determine compliance with the lease terms herein.
23. PERMITTED USE.
All property of LESSEE shall be maintained by LESSEE at LESSEE'S expense
and in a clean, orderly, healthful, and attractive condition, subject to
inspection by LESSOR or his representative at any time. LESSEE shall, at its
sole cost and expense, make any and all additions to, repairs, alterations,
maintenance, replacements, or changes about and to the improvements on SAID
PROPERTY, which may be required by any public authority affecting the property
and its use. It is expressly agreed by and between the parties that LESSEE will
not occupy or use, nor permit to be occupied or used, SAID PROPERTY for any
unlawful purposes.
17
It is specifically agreed that LESSEE will use SAID PROPERTY for the
docking of a single gaming vessel as shown on attached Exhibit 1, to be operated
under a Mississippi gaming license issued to LESSEE, as shown in Exhibit 3
attached hereto. LESSEE shall commence permitted use on or before September 1,
1994.
24. LESSOR NOT RESPONSIBLE.
LESSEE assumes full responsibility for the condition of the promises and
LESSOR shall not be liable or responsible for any damages or injuries caused by
any vices or defects therein to LESSEE or to any occupant or to anyone in or on
SAID PROPERTY who derives his right to be thereon from LESSEE. LESSEE agrees to
maintain the leased premises in good condition, keeping the structures and
equipment located thereon in a good state of repair in the interests of public
health and safety.
25. LIABILITY INSURANCE.
LESSEE shall secure and maintain throughout the term of the lease a
liability insurance policy providing coverage in an amount not less than Five
Million Dollars against accidents, death or bodily injury or loss or damage to
property occurring on or in connection to SAID PROPERTY, or LESSEE's vessel, or
arising out of or associated with any activity of LESSEE on SAID PROPERTY.
LESSEE shall annually supply a certificate evidencing said insurance to LESSOR.
26. RESERVATION OF MINERAL RIGHTS.
LESSEE further covenants and agrees that this lease and interest of LESSEE
SHALL NOT include any mineral, oil or gas, coal, lignite, or other subterranean
rights WHATSOEVER.
27. RIGHT TO CANCEL UPON INSOLVENCY OF LESSEE.
LESSEE covenants and agrees that if an execution or process is levied upon
SAID PROPERTY or if a Petition in Bankruptcy be filed by or against LESSEE in
any court of competent jurisdiction, LESSOR shall have the right at its option,
to cancel
18
this lease. LESSEE covenants and agrees that this lease and the interest of
LESSEE hereunder shall not, without the written consent of the Secretary of
State or his successor first obtained, be subject to garnishment or sale under
execution or otherwise in any suit or proceeding which may be brought by or
against said LESSEE.
28. WAIVER NOT A DISCHARGE.
No failure, or successive failures, on the part of LESSOR to enforce any
provisions, nor any waiver or successive waivers on its part of any provision
herein, shall operate as a discharge thereof or render the same inoperative or
impair the right of LESSOR to enforce the same upon any renewal thereof or in
the event of subsequent breach or breaches.
29. CANCELLATION UPON FAILURE TO COMPLY.
LESSEE'S failure to comply with the provisions of this lease shall result,
at the option of LESSOR, in the termination or cancellation of this lease within
thirty (30) days after written notice of default is given, unless such default
is cured within thirty (30) days of receipt of such notice, except as set forth
in Article 15.
30. NOTICE.
All notifications required under the terms of this lease shall be made by
U.S. mail, return receipt requested, to the parties at the following addresses:
Secretary of State: 401 Mississippi Street
Post Office Box 136
Jackson, Mississippi 39205
Mississippi-I Gaming, L.P.: Wayne Yarbrough, General Manager
Post Office Box 369
Biloxi, Mississippi 39533
Copy to: Thomas B. Shepherd III, Esq.
Watkins Ludlam & Stennis
Post Office Box 427
Jackson, Mississippi 39205-0427
Leasehold Mortgagee: First Trust National Association
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
19
Trustee: Stephen H, Leech, Jr.
c/o Phelps Dunbar
Security Center North
200 S. Lamar Street, Suite 500
Jackson, Mississippi 39225
31. LAWS OF MISSISSIPPI TO GOVERN.
This agreement is to be governed by the laws of the STATE OF MISSISSIPPI,
both as to Interpretation and performance.
IN WITNESS WHEREOF, this lease is executed by LESSOR and LESSEE, this
the _____ day of __________, 1994.
LESSOR:
-------
STATE OF MISSISSIPPI
DICK MOLPUS
SECRETARY OF STATE
BY: __________________________
JAMES O. NELSON, II
ASSISTANT SECRETARY OF STATE
FOR PUBLIC LANDS
LESSEE:
-------
MISSISSIPPI-I GAMING, L.P.,
a Mississippi Limited Partnership
By: Bayview Yacht Club, Inc.
a Mississippi Corporation,
its Sole General Partner
BY: /s/ Richard N. Scott
--------------------------
RICHARD N. SCOTT,
PRESIDENT
APPROVED BY THE GOVERNOR of the State of Mississippi on the ___ day
of _______________, 19__.
______________________________
GOVERNOR
20
STATE OF MISSISSIPPI
COUNTY OF________________
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said
county and state, on this ___ day of ________, 1994, within my jurisdiction the
within named KIRK FORDICE, personally known to me to be the GOVERNOR of the
STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing
LEASE AGREEMENT as the act and deed of said GOVERNOR for and on behalf of the
STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being
first duly authorized to so do.
____________________________
NOTARY PUBLIC
My Commission Expires:
_______________________
21
STATE OF MISSISSIPPI
COUNTY OF_________________
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said
county and state, on this __ day of _________, 1994, within my jurisdiction the
within named JAMES 0. NELSON 11, personally known to me to be the ASSISTANT
SECRETARY OF STATE FOR PUBLIC LANDS of the STATE OF MISSISSIPPI, who
acknowledged that he executed the above and foregoing LEASE AGREEMENT as the act
and deed of said ASSISTANT SECRETARY OF STATE for and an behalf of the STATE OF
MISSISSIPPI, on the date and for the purposes therein stated, being first duly
authorized to so do.
________________________
NOTARY PUBLIC
My Commission Expires:
_______________________
STATE OF Mississippi
------------
COUNTY OF Harrison
-----------
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the
said county and state, on this 15th day of July, 1994, within my jurisdiction,
the within named RICHARD N. SCOTT, who acknowledged that he is PRESIDENT of
BAYVIEW YACHT CLUB, INC., a Mississippi corporation, and that for and on behalf
of said corporation, and as its act and deed as sole general partner of
MISSISSIPPI I GAMING, L.P., a Mississippi Limited Partnership, 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.
/s/ R K. D
------------------------------
NOTARY PUBLIC
My Commission Expires:
______________________
(SEAL)
22
[SITE PLAN FOR PARKING OF BOOMTOWN CASINO]
* In the lot North of Bayview, the lot is stripped for trucks/trailers. Boomtown
has parked indiscriminately approx. 157 cars throughout - including up to the
luster's (Back Boy) edge.
[MAP APPEARS HERE]
[LETTER HEAD APPEARS HERE]
LEGAL DESCRIPTION - OVERALL TIDELANDS BOUNDARY
- -----------------------------------------------
COMMENCE at a point on the North margin of Bay View Avenue, said point
being at the intersection of said North margin with the extension of the East
Margin of Main Street; thence run North degrees 30'07" East, for a distance of
352.72 feet to a point on the waters edge in the Back Bay of Biloxi, and the
POINT OF BEGINNING; thence continue North degrees 30'07" East, for a distance of
627.28 feet to a point; thence run South 89 degrees 29'53" East, for a distance
of 421.62 feet to a point; thence run South 0 degrees 30'07" West, for a
distance of 567.28 feet to a point on the waters edge in the Back Bay of Biloxi,
thence run along the waters edge, the following bearings and distance, to wit;
North 89 degrees 00'25" West, 54.89 feet, North 59 degrees 34'39" West, 35.62
feet; North 02 degrees 39'47" East, 9.06 feet; North 65 degrees 11'04" West,
89.88 feet; North 0 degrees 47'05" West, 18.55 feet; North 07 degrees 16'10"
West; 25.28 feet; South 75 degrees 11'01" West, 39.18 feet, South 09 degrees
13'15" East, 7.92 feet; South 81 degrees 54'06" West, 49.27 feet; North 08
degrees 11'59" West, 22.25 feet; South 81 degrees 26'23" West, 94.03 feet; South
11 degrees 19'27" East, 27,44 feet; South 14 degrees 59'07" East, 79.84 feet and
South 65 degrees 01'07" West, for a distance of 106.37 feet to the POINT OF
BEGINNING; containing 222,022 Square Feet, or 5.10 Acres, approximately.
EXHIBIT 1
CERTIFICATION
- -------------
This is to CERTIFY that I have surveyed the property hereon described and
del????, and that the measurements and other data indicated are correct to the
best of my knowledge and belief.
/s/ Terry J. Moran 6/29/94
- ----------------------------------- -----------
TERRY J. MORAN R.I.S. 1779 Dated
[PLAN APPEARS HERE]
This property has been graphically plotted to be in Zone(s) "A9" & "A12"
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as published by the Federal Insurance Administration, Official Flood Hazard Map,
Community Panel Number 289252 OODBC . revised 3/15/84.
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EXHIBIT 1 Page 2 of 2
[LETTER HEAD OF WATKINS LUDLAM & STENNIS]
May 2, 1994
(601) 949-4863
VIA HAND DELIVERY
Mr. Gary McGee
Mississippi Gaming commission
723 North President Street
Suite 100
Jackson, MS
RE: Mississippi I Gaming, L.P. d/b/a Boomtown Biloxi
Dear Gary;
I have enclosed a revised Form 3001 Statement of Games, Tables and Slot
Machines as a supplement to the above captioned limited partnership's
application for a gaming license.
By copy of this letter I am also providing this statement to Margaret Bretz
of the Secretary of State's office, Public Lands Division for the tideland's
lease application.
Please call me if you have any questions regarding the above or need any
further information.
Sincerely,
WATKINS LUDLAM & STENNIS
/s/ Cheryn L. Nett
Cheryn L. Nett
CLN/ssb
Enclosures
cc. Wayne Yarbrough
Margaret Bretz (w/enclosures)
Thomas B. Shepherd 111, Esq.
EXHIBIT 2 PAGE 1 OF 2
STATEMENT OF GAMES, TABLES, AND SLOT MACHINES
GAMES NO. TABLES NO. SLOT MACHINES NO.
Craps - 5 ___ ??? 0 ___ $.05 219 ___
Roulette -2 ___ ??? - 8 ___ $.10 0 ___
Twenty-one - 24 1 Multi-Action ___ $.25 490 ___
Keno - 1 ___ ______________ ___ ???? 27
Wheel of Fortune 0 ___ ______________ ___ $ 1.00 206 ___
Casino de Fal 0 ___ ______________ ___ $ 5.00 22 ___
Baccarat 0 ___ ______________ ___ $ 25.00 2 ___
Faro 0 ___ ______________ ___ $100.00 0 ___
??? 0 ___ ______________ ___ $500.00 0 ___
??? - 1 ___ ______________ ___ _____________ ___
Chuck-A-Luck 0 ___ ______________ ___ _____________ ___
??? 0 ___ ______________ ___ _____________ ___
Black Jack 0 ___ ______________ ___ _____________ ___
Seven-and-a-half 0 ___ ______________ ___ _____________ ___
Big Injue 0 ___ ______________ ___ _____________ ___
Klondike 0 ___ ______________ ___ _____________ ___
Beat the Banker 0 ___ ______________ ___ _____________ ___
Other (describe) 2- Caribbean Stud ___ _____________ ___
TOTAL 35 ___ TOTAL 9 ___ TOTAL 966 ___
EXHIBIT 2 PAGE 2 OF 2