EXHIBIT 10.28
STATE OF LOUISIANA
PARISH OF CALCASIEU
AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE (hereinafter "the Lease" or "this Lease") is
made this ___ day of April, 1999, between PORT RESOURCES, INC., a Louisiana
corporation, and CRU, INC., a Louisiana corporation, (hereinafter collectively,
"LANDLORD"), and ST. CHARLES GAMING COMPANY, INC., a Louisiana corporation,
(hereinafter, "TENANT") and ISLE OF CAPRI CASINOS, INC. a Delaware corporation,
and LOUISIANA RIVERBOAT GAMING PARTNERSHIP, a Louisiana general partnership,
(the last two (2) parties of which hereinafter collectively, the "Guarantors").
This Lease amends and restates in their entirety the provisions of that certain
Agreement of Lease affecting the North Tract Property (as hereinafter defined)
between Port Resources, Inc. and CRU, Inc. and St. Charles Gaming Company, Inc.,
dated July 17, 1995 (as amended from time to time by Amendment To Lease and
Second Amendment To Lease, hereinafter the "North Tract Lease") and the
provisions of that certain Agreement of Lease affecting the South Tract Property
(as hereinafter defined) between Port Resources, Inc. and CRU, Inc. and St.
Charles Gaming Company, Inc., dated March 24, 1995 (as amended from time to time
by May 3, 1995 Amendment To Lease, May 16, 1995 Second Amendment To Lease, and
June 6, 1995 Third Amendment To Lease, hereinafter the "South Tract Lease").
WITNESSETH
1. LEASED PROPERTY. LANDLORD leases to TENANT and TENANT leases from
LANDLORD the following described property with all improvements and
appurtenances thereto located in the Parish of Calcasieu and State of Louisiana:
I.
That certain tract or parcel of land described as Block 22, less and
except the North 40.00 feet thereof; Block 30, less and except a 40.00
foot by 396.00 foot strip on the North side thereof, belonging to Olin
Corporation (formerly Mathieson Alkali Works Inc.); Block 21 and Block
29 of the Old Townsite of Westlake, and a 60.00 foot right-of-way,
known as Hazel Avenue, all lying within Section 36, Township 9 South,
Range 9 West, Calcasieu Parish, Louisiana, being more particularly
described as follows to-wit:
Commencing at the Northwest Corner of Block 22 of the Old Townsite of
Westlake in Section 36, Township 9 South, Range 9 West, Calcasieu
Parish, Louisiana;
Thence South 00 14' 51" West, along the West line of Block 22 and West
line of said Section 36, for a distance of 40.00 feet, the point of
beginning of herein described tract;
Thence South 88 35' 31" East, 40.00 feet South of and parallel with
the North line of said Block 22 and Block 30, for a distance of 396.00
feet;
Thence North 00 14' 51" East, parallel with the West line of Block 22,
for a distance of 40.00 feet, to the North line of Block 30 of the Old
Townsite of Westlake;
Thence South 88 35' 31" East, along the North line of said Block 30,
for a distance of 159.12 feet to the West bank of the Calcasieu River:
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Thence Southerly, following the meander of the top west bank or right
descending bank of the Calcasieu River, for a distance of 508.70 feet
more or less to the South line of Block 29 of the Old Townsite of
Westlake;
Thence North 88 35' 31" West, along the South line of Blocks 29 and 21
of the Old Townsite of Westlake for a distance of 517.50 feet to the
Southwest Corner of said Block 21 and West line of the aforesaid
Section 36;
Thence North 00 14' 51" East, along the West line of Blocks 21 and 22
for a distance of 451.40 feet to the point of commencement;
Herein described tract is subject to a 60.00 foot road right-of-way,
known as Hazel Avenue, lying East of Westlake Avenue between Blocks
22, 30 and 21, 29 of the Old Townsite of Westlake.
Herein described tract containing 5.75 acres, more or less,
(hereinafter sometimes the "North Tract Property" or "Tract 1").
AND
II.
That certain tract or parcel of land described as Blocks 41 and 42 of
the Old Townsite of Westlake, that portion of Landry Street lying East
of Westlake Avenue, abandoned by document bearing file number 1495741
in the records of Calcasieu Parish, Louisiana, and that portion of
land lying between the South line of said Blocks 41 and 42 and the
North line of property belonging to Lake Charles Harbor and Terminal
District, all lying within Section 36, Township 9 South, Range 9 West,
Calcasieu Parish, Louisiana, being more particularly described as
follows to-wit:
Beginning at the Southwest Corner of Block 21 of the Old Townsite of
Westlake, said point also being the Northwest Corner of Landry Street,
abandoned as per document bearing file number 1495741 records of
Calcasieu Parish, Louisiana, in Section 36, Township 9 South, Range 9
West, Calcasieu Parish, Louisiana;
Thence South 88 35' 31" East, along the South line of Blocks 21 and 29
of the Old Townsite of Westlake, for a distance of 517.50 feet to the
top West bank of the Calcasieu River;
Thence Southerly, following the meander of the top West bank or right
descending bank of said Calcasieu River, for a distance of 903.90,
more or less, to the North line of property belonging to the Lake
Charles Harbor and Terminal District;
Thence North 89 45' 09" West, along said North property line for a
distance of 563.00 feet to an existing 2 1/2" cap pipe, marking the
Northwest Corner of Lake Charles Harbor and Terminal District
property, said point also being on the West line of the aforesaid
Section 36;
Thence North 00 14' 51" East, along the West line of said Section
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36, for a distance of 859.69 feet to the point of beginning.
Herein described tract is possibly subject to a 28.00 foot right-of-
way on the South side of Blocks 41 and 42.
Herein described tract containing 10.43 acres more or less,
(hereinafter sometimes the "South Tract Property" or "Tract 2".
The North Tract Property, or Tract 1, and the South Tract Property, or Tract 2,
sometimes hereinafter collectively are referred to as the "Leased Property".
The Leased Property generally encompasses a portion of the area known as the
Burton Shellyard on the west bank of the Calcasieu River south of Interstate 10.
TENANT acknowledges and confirms that TENANT has made improvements to and has
been operating a riverboat gaming facility on the Leased Property since July,
1995 upon the execution of the South Tract Lease. TENANT confirms it has
inspected the Leased Property and its apparent boundaries and is satisfied that
its size, boundaries, encroachments, if any, and configuration are adequate for
the uses intended under this Lease and hereby accepts the Leased Property in the
condition presented.
2. TERM. The Initial Term of this Lease shall be five (5) years (hereinafter,
the "Initial Term"), to commence March 25, 1995. TENANT shall have the option
to renew this Lease for seventeen (17) additional five (5) year terms
(hereinafter, the "Renewal Term") under the same terms and conditions of this
Lease and as further provided below. Unless TENANT notifies LANDLORD of its
intention not to exercise its option to renew at least six (6) months prior to
the expiration of the Initial Term and any Renewal Term of this Lease, the Lease
shall automatically be renewed for the next Renewal Term.
3. RENTAL.
(A) Initial Term. TENANT covenants and agrees to pay to LANDLORD annual
rent of Eight Hundred Fifty Thousand and 00/100 Dollars ($850,000.00), payable
monthly in advance without demand, deduction, abatement or set off on the first
day of each and every month for the first four (4) years of said initial term in
two separate, equal payments of Thirty Five Thousand Four Hundred Sixteen and
66/100 Dollars ($35,416.66) each payable to Port Resources, Inc. and to CRU,
Inc. TENANT covenants and agrees to pay to LANDLORD annual rent of One Million
and 00/100 Dollars ($1,000,000.00), payable monthly in advance without demand,
deductions, abatement or set off on the first day of each and every month for
the fifth (5th) year of said initial term in two separate, equal payments of
Forty One Thousand Six Hundred Sixty Six and 66/100 Dollars ($41,666.66) each
payable to Port Resources, Inc. and to CRU, Inc.
Increase In Rent For Planned Hotel Construction. Effective upon
execution of this instrument, the above stated annual rent is increased by
$200,000 which increase is payable monthly in advance without demand, deduction,
abatement or setoff on the first day of each and every month in two(2) separate,
equal payments of Eight Thousand Three Hundred Thirty three and 33/100
($8,333.33) each to Port Resources, Inc. and to CRU, Inc. on the assumption that
a hotel containing fewer than 260 keyed rooms is to be constructed on the Leased
Property. This increase in annual rent shall be $350,000 per annum if the hotel
to be constructed on the Leased Property contains 260 or more keyed rooms. If
the hotel constructed, or being constructed, on the Leased Property contains
fewer than 260 keyed rooms, annual rent also shall automatically increase by
another $150,000 upon breaking ground for construction of any other hotel, or
any addition to the hotel constructed, or being constructed, on the Leased
Property.
Notwithstanding anything in this Lease or elsewhere to the contrary, the
above described $200,000 increase in annual rent, the above described $350,000
increase in annual rent and the $150,000 increase in annual rent, as the case
may be, shall continue to be due and payable under this Lease should TENANT
decide not to build, or finish building, any hotel and/or any addition thereto,
on the Leased Property or to cease operation of any such hotel.
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(B) First Renewal Term. The rent during the first Renewal Term shall
increase over the rent during the Initial Term in annual increments of five (5%)
per cent per annum or the percentage increase in the average consumer price
index- all urban consumers (i.e., the percentage increase in the CPI-U [all
urban consumers]) as published by the Chamber/Southwest Louisiana whose offices
are in Lake Charles, Louisiana, or such organization's successor for the
previous twelve (12) month period, whichever percentage is higher, computed on
the total rent due for the prior twelve (12) month rental period. If at any
time in the future the Chamber/Southwest Louisiana and its successor do not
exist, the parties shall negotiate in good faith to utilize another
organization's published average CPI-U for purposes of this provision.
(C) Second through all subsequent Renewal Terms. During the third
through all subsequent Renewal Terms, inclusive, the annual rent for each year
of such Renewal Term shall be not less than the rent for the last twelve (12)
months of the preceding Renewal Term and shall increase over the rent for the
last twelve (12) months of the preceding Renewal Term by an amount equal to the
greater of (i) ten percent (10%) or (ii) the sum of the percentage increase in
the average consumer price index-all urban consumers (i.e., the sum of the
percentage increase in the CPI-U [All Urban Consumers]) for each year of the
preceding Renewal Term as published by the Chamber/Southwest Louisiana whose
offices are in Lake Charles, Louisiana, or such organization's successor,
computed on the total annual rent due for the last twelve (12) months of the
preceding Renewal Term. If at any time in the future the Chamber/Southwest
Louisiana and its successor do not exist, the parties shall negotiate to utilize
another organization's published average CPI-U for purposes of this provision.
(See Page 4.b for provisions of second Renewal Term.)
Notwithstanding the foregoing, the rent during the third and all subsequent
Renewal terms shall not be less than One Million Eight Hundred Thousand and
00/100 ($1,800,000.00) Dollars per year.
(D) Proration. Rent for any period of occupancy of less than one month
shall be prorated in proportion to the number of days of occupancy in that
month.
(E) Payment. All rent shall be paid to Port Resources, Inc. at Suite 1700,
CM Tower, One Lakeshore Drive, Lake Charles, Louisiana 70602 and to CRU, Inc. at
101 North Huntington Street, Sulphur, Louisiana 70663-2601 or at such other
address or addresses as LANDLORD, or either of them, may from time to time
designate in writing.
4. USE. The Leased Property shall be used and occupied as a gaming facility
and hotel and any other lawful purpose relating thereto and for no other purpose
without the prior written consent of LANDLORD. The gaming facility and hotel
shall be constructed and operated in accordance with the laws and regulations of
the State of Louisiana and any other political subdivision having jurisdiction.
5. ZONING. LANDLORD does not warrant that any covenant, restriction,
easement, zoning and other governmental laws or regulation in effect as of the
date hereof permit the use of the Leased Property for operation of a gaming
facility or hotel and uses incidental thereto.
6. SERVICES. LANDLORD shall furnish no services. TENANT shall be responsible
for and shall pay for all utilities including any sewerage or drainage charges.
7. CONDITION OF LEASED PROPERTY. TENANT acknowledges that, prior to TENANT'S
lease and occupancy of the Leased Property for a river boat gaming facility, the
Leased Property was previously used as a stone and aggregate off-loading
facility and a storage, sale and distribution yard for stone and aggregate.
LANDLORD is relieved of any obligations of repair including but not limited to
those obligations found in (S)2, Chapter 2 of Title IX Of Lease, of the
Louisiana Civil Code. TENANT undertakes all of these obligations of repair and
maintenance and otherwise assumes all obligations and responsibility for the
condition of the Leased Property and indemnifies and holds LANDLORD harmless for
any claim, demand or damage arising occasioned to anyone from said condition.
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8. ALTERATIONS AND IMPROVEMENTS.
(A) TENANT may, from time to time during this Lease or any renewal or
extension thereof, at its own expense make, install or construct such
alterations and improvements, structural or otherwise, and install such
identifications, signs, furniture, fixtures and equipment in or on the Leased
Property as will, in the judgment of TENANT, adapt the same to the purposes of
its business. However, no underground storage tanks shall be installed. Any
dredging, excavations, bulkheads or alterations to the shoreline or construction
of docking facilities or marinas shall require the prior written consent of
LANDLORD. LANDLORD's consent shall not be unreasonably withheld or delayed
after TENANT has fully disclosed such plans to LANDLORD.
(B) All improvements and alterations made by TENANT (other than TENANT's
personal property and trade fixtures) shall become, upon the expiration or
termination of this Lease, the property of LANDLORD and shall remain on the
Leased Property. Not later than the last day of the term or upon termination of
this Lease, and provided TENANT is not in default, TENANT will remove all of its
personal property, equipment, trade fixtures and signs and repair all damage
resulting from such removal.
9. COVENANT AGAINST LIENS. At its cost and expense (whether by payment, by
filing the necessary bond, by order of a court of competent jurisdiction or
otherwise), TENANT shall promptly remove and discharge of record all liens,
encumbrances and charges upon the Leased Property, or TENANT's Leasehold
interest therein, which arise as a result of any act or omission by TENANT,
including all such liens, encumbrances and charges that either arise out of the
possession, use, occupancy, maintenance, repair or rebuilding of the Leased
Property or arise by reason of labor or materials furnished or claimed to have
been furnished to TENANT or otherwise. Prior to commencement of any
construction activities, TENANT shall provide a surety bond or bonds in a
company or companies and in a form satisfactory to LANDLORD in an aggregate
amount of not less than one hundred fifty (150%) percent of the contract amount,
guaranteeing TENANT's performance under the terms of this covenant and to
protect and indemnify LANDLORD against any mechanic's liens, materialman's
liens, architect's lien, builder's lien or any other lien arising out of any
construction or repair activities conducted on the Leased Property; provided,
however, that TENANT may contest the validity of any lien or claim having first
posted the bond required hereinabove to insure that, upon final determination of
such claim, it shall immediately pay any judgment rendered against it with all
proper costs and charges, and have such lien released without cost to LANDLORD.
10. COVENANT AGAINST MORTGAGE. TENANT shall not grant any mortgage or
otherwise encumber the Leased Property without the prior written consent of
LANDLORD. The Landlord's Consent (the "1996 Landlord's Consent") dated as of
August 6, 1996 between LANDLORD, TENANT, the Guarantors and Fleet National Bank,
as Trustee, constitutes such consent.
11. SUBORDINATION TO FUTURE MORTGAGES BY LANDLORD. LANDLORD represents and
warrants to TENANT that, upon execution and delivery of the Lease, the Leased
Property will be free and clear of all mortgages, deeds of trust and other
similar instruments encumbering the Leased Property as caused by or created for
LANDLORD. TENANT will accept the Lease subject to any mortgages, deeds of trust
and other similar instruments hereinafter encumbering the Leased Property
("future mortgages") provided that the holder of any such future mortgage agrees
in such future mortgage or separate instrument not to disturb TENANT's occupancy
of the Leased Property so long as TENANT performs its obligations under the
Lease on the condition that TENANT, when requested by the future mortgagee,
shall execute an attornment agreement to the future mortgagee should the future
mortgagee succeed to the rights of LANDLORD under the Lease.
12. SUBLETTING AND ASSIGNMENT. (A) During the initial term of this Lease,
TENANT may not, without the prior written consent of LANDLORD, assign this Lease
or sublet the whole or any part of the Leased Property. For purposes of this
paragraph a conveyance or sale, regardless of how structured, of fifty-one
percent (51%) or greater of TENANT's interest in the
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gaming operation conducted or to be conducted on the Leased Property shall be
considered as an assignment or subletting requiring the consent of LANDLORD.
LANDLORD specifically reserves its right to withhold consent. If requested by
TENANT's lender (the "Lender"), LANDLORD agrees to consent to the collateral
assignment to the Lender of TENANT's entire interest in the Lease, subject to
the terms of the Lease. The consent of LANDLORD is further conditioned upon
LANDLORD's approval of the terms and provisions of the instrument evidencing
such assignment which shall include, but not be limited to, the acceptance and
assumption by the Lender of each and every covenant and obligation of the TENANT
under this Lease, as well as the acknowledgment and acceptance of liability by
the Lender for the payment of the rent, and any arrearages, and any other
charges payable under this Lease.
(B) During any Renewal term of this Lease TENANT may not, without the
prior written consent of LANDLORD, assign the Lease or sublet the whole or any
part of the Leased Property. Notwithstanding the foregoing, LANDLORD shall not
unreasonably withhold its consent to any assignment of subletting of the Leased
Property during any Renewal term if:
(a) At the time of the proposed assignment or sublease, the assignee
or sublessee is financially capable of operating a casino and/or riverboat
gaming facility of the type located at the Leased Property;
(b) The proposed assignee or sublessee of or for the casino gaming
operation has casino gaming operating experience comparable to, or greater
than, TENANT's experience, or has contracted for the operation of the
riverboat gaming facility on the Leased Property with a casino and/or
riverboat gaming operator with experience comparable to, or greater than,
TENANT's, and/or the proposed assignee or sublessee for the hotel operation
has hotel management and operation experience comparable to, or greater
than, TENANT'S experience or has contracted for the operation of the hotel
on the Leased Property with a hotel operator with experience comparable to,
or greater than, TENANT'S experience;
(c) The proposed use of the Leased Property by such proposed assignee
or sublessee is as a gaming facility and hotel site of a similar type and
quality of TENANT's use under the terms of this Lease;
(d) The proposed assignee or sublessee, and any party with whom the
assignee or sublessee has contracted as provided in Paragraph 12(B)(b), has
all requisite licenses in the State of Louisiana to operate a gaming
facility and hotel, the proposed assignee or sublessee, and any party with
whom the assignee or sublessee has contracted as provided in Paragraph
12(B)(b), is not under current investigation or has not been suspended or
declined a similar license, in another state, and is of suitable moral
character reasonably satisfactory to LANDLORD; and
(e) The proposed assignee or sublessee executes an agreement in form
and substance satisfactory to LANDLORD assuming and agreeing to perform all
obligations of TENANT under this Lease which agreement shall include, but
not be limited to, the acceptance and assumption by the assignee or
sublessee of each and every covenant and obligation of the TENANT under
this Lease, as well as the acknowledgment and acceptance of liability by
the assignee or sublessee for the payment of the rent, and any arrearages,
and any other charges payable under this Lease;
(f) The TENANT, and/or present party TENANT, shall remain responsible
and liable for all of the obligations of TENANT under the Lease.
(C) Each and every assignee, sublessee and Lender, whether as assignee,
sublessee or Lender or as successor in interest of any assignee, sublessee and
Lender of TENANT, shall immediately be and become and remain liable for the
payment of the rent and other charges payable under this Lease, and for the due
performance of all the covenants, agreements, terms and provisions of this
lease, on TENANT's part to be performed, and each and every provision of this
Lease applicable to TENANT prior to such assignment shall also apply to and bind
every such assignee, sublessee and
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Lender with the same force and effect as though such assignee, sublessee and
Lender were the party named originally as TENANT in the Lease.
(D) If requested by TENANT'S lender (hereinafter the "Hotel Lender") which
is financing for TENANT the construction of a hotel on the Leased Property
(hereinafter the "Hotel
Construction"), LANDLORD agrees, subject the Hotel Lender's acceptance, as well
as the acceptance of TENANT and the Guarantors, of the conditions of consent
hereinafter provided, to negotiate in good faith a consent instrument for the
collateral assignment or mortgage by TENANT, for the sole purpose of providing
collateral for the Hotel Construction, in favor of the Hotel Lender of TENANT'S
entire interest in the Lease and in the hotel, which collateral assignment or
mortgage shall be subject to and subordinate to this Lease. LANDLORD'S
execution of any such consent instrument shall be conditioned upon such
instrument including, but not being limited to, the Hotel Lender's agreement, as
well as that of TENANT and the Guarantors, for the benefit of LANDLORD, that any
collateral assignment and/or mortgage shall affect and encumber not less than
the entire interest of TENANT in the Lease, and that any collateral assignment
and/or mortgage shall provide for the express assumption by the Hotel Lender,
at the earlier of the time of the Hotel Lender's taking ownership of the
TENANT'S interest in the Lease or the time of use, occupancy or possession in
any manner by the Hotel Lender of the TENANT'S interest in the Lease and/or the
Leased Property, of each and every covenant and obligation of TENANT under the
Lease, as well as the express acceptance of liability by the Hotel Lender for
the payment of rent under the Lease, and any arrearages, and any other charges
payable under the Lease. Additionally, LANDLORD'S execution of any such consent
instrument shall be conditioned upon LANDLORD'S approval of the collateral
assignment and/or mortgage in favor of the Hotel Lender.
The provisions of paragraph 12 (B) and (C ) shall apply to any assignment
or sublease by any Lender or Hotel Lender of TENANT's interest in the Lease,
however LANDLORD expressly reserves the right to approve any such assignment or
sublease which approval will not be unreasonably withheld.
LANDLORD has consented to the assignment by TENANT of fifty (50%) percent
of TENANT's capital stock to Louisiana Riverboat Gaming Partnership ("LRGP"), a
Louisiana partnership comprised of LRGP Holdings, Inc., a Louisiana corporation,
and CSNO, Inc., a Louisiana corporation, both of which are wholly owned by Isle
Of Capri Casinos, Inc. Additionally, LANDLORD has granted the 1996 Landlords'
Consent.
LRGP has joined TENANT as a party to this Lease, and LRGP has acknowledged
and faithfully guarantees all of the covenants, agreements, terms and provisions
of this Lease, on TENANT's part to be performed.
13. SUBORDINATION FOR LENDER OR HOTEL LENDER. Notwithstanding anything else in
this Lease or elsewhere, explicit or implied, to the contrary, LANDLORD has not,
and will not, subordinate this Lease in favor of or for the benefit of any
collateral assignment, mortgage or other security instrument or device, or in
favor of or for the benefit any present or future holder or owner of any such
collateral assignment, mortgage or other security instrument or device.
14. EMINENT DOMAIN.
(A) If all or part of the Leased Property or any improvements thereon are
taken by right of eminent domain, this Lease shall terminate as to the property
so taken and the rent and all other charges relating to the property so taken
which are TENANT's responsibility shall be proportionately reduced during the
unexpired portion of this Lease, effective as of the date of taking. If as a
result of the taking, the Leased Property is no longer suitable by reason of its
resulting size, shape or configuration for the purposes of this Lease, this
Lease shall terminate as to all of the Leased
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Property.
(B) TENANT shall only be entitled to share in the compensation awarded
expressly for the loss of its business and improvements. LANDLORD shall be
entitled to all other compensation. TENANT shall not assert or be entitled to
any leasehold advantage.
15. DEFAULT.
(A) If TENANT defaults in the performance of any of the covenants or
conditions on its part to be performed, LANDLORD may give TENANT written notice
of such default, and if TENANT does not cure such default within twenty (20)
days after receipt of such notice (or, if such default is of such a nature that
it cannot be cured within the twenty (20) days, if TENANT does not commence such
cure within said twenty (20) day period and thereafter proceed with diligence to
cure the default), or if TENANT enters into any transaction or series of
transactions in which any or substantially all of TENANT's assets are disposed
of, or if TENANT is adjudicated bankrupt, or a receiver of its property is
appointed, TENANT shall be in breach of this Lease and LANDLORD may at its
option elect either of the following remedies:
(i) LANDLORD may terminate this Lease on a date not less than five
(5) days after TENANT's receipt of written notice of such termination, and on
the date specified in said notice, this Lease shall terminate, and TENANT shall
quit and surrender the Leased Property to LANDLORD. In the event of such
termination, LANDLORD shall be entitled to damages equal to any sums owed and
unpaid as of the date of such default and TENANT shall also remain liable for
the annual rental to become due during the balance of the Lease term, the same
to be paid by TENANT to LANDLORD on the regular days stipulated for the payment
of rent; provided, however that LANDLORD shall be obligated to use commercially
reasonable efforts to relet the Leased Property, and if the Leased Property is
relet in whole or in part, TENANT shall be entitled to a credit in the net
amount of any rental payments received by LANDLORD as a result of such reletting
(after deducting reasonable expenses for reletting, including any necessary
costs of repair of the Leased Property). Further, in the event of termination of
this Lease as aforesaid, LANDLORD shall have the right to remove therefrom any
part of TENANT's personal property, equipment and trade fixtures located therein
and place the same in storage at the expense of TENANT; or
(ii) LANDLORD may cure such breach by performing the obligation(s) of
TENANT giving rise to the default and, in such event, the reasonable amount of
all expenses thereby incurred by LANDLORD shall be deemed payable by TENANT with
the next monthly installment(s) of rent.
(B) The full amount of the cost and expense incurred by LANDLORD,
together with the amount of any attorney's fees in instituting, prosecuting or
defending any action or proceeding by reason of any default of TENANT hereunder,
shall be paid by TENANT to LANDLORD with interest at the maximum permissible
legal rate thereon.
16. LANDLORD'S RIGHT OF ENTRY.
(A) LANDLORD has the right to enter the Leased Property at any reasonable
time for the purpose of inspection or to confirm compliance by TENANT with the
Lease or to perform other authorized acts; provided, however, that LANDLORD in
such inspections and confirmations shall not unduly interfere with the business
of TENANT on the Leased Property.
(B) LANDLORD may show the Leased Property to prospective purchasers and
mortgagees, and, during the sixty (60) days prior to expiration of this Lease or
applicable renewal or extension period LANDLORD may show the Leased Property to
prospective tenants.
17. TAXES. LANDLORD shall pay all real estate taxes on the unimproved value of
the Leased Property, however, LANDLORD shall never pay more than the amount of
said taxes in March 1995. TENANT shall pay that portion of the real estate taxes
on the unimproved value of the Leased
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Property not paid by LANDLORD. TENANT shall pay any special assessments,
including paving, drainage or other assessments, assessed or payable during the
term of this Lease, or any renewal periods, levied upon the Leased Property.
TENANT shall pay any and all taxes on the buildings, improvements, alterations
or fixtures thereon, including TENANT's personal property or trade fixtures.
TENANT shall have the right to contest by appropriate legal proceedings,
diligently conducted in good faith, the validity or amount of any tax,
assessment or utility charge provided no civil or criminal penalty be incurred
by LANDLORD and no lien be imposed upon the Leased Property.
18. INSURANCE.
(A) Liability Insurance. TENANT, at its expense, shall obtain and keep in
force during the term of this Lease, for the protection of TENANT, LANDLORD and
LANDLORD's respective shareholder, directors, officers, employees, agents and
servants, as their interest may appear Commercial General Liability Insurance
with limits of not less than $50,000,000.00 combined single limit per occurrence
with an insurance company reasonably acceptable to LANDLORD. LANDLORD shall be
named as an additional named insured under such policy or policies and TENANT
shall supply to LANDLORD evidence of such insurance.
(B) Property Insurance. TENANT, at its expense, shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Leased Property, in the amount of the full replacement
value of all improvements thereof, providing protection against all perils
included within the classifications of fire, flood, extended coverage,
vandalism, and malicious mischief.
19. INDEMNITY. This Lease is made upon the express condition that LANDLORD and
LANDLORD'S respective shareholders, directors, officers, employees, agents and
servants shall be free from any and all liabilities and claims for damages
and/or suits for or by reason of any injury or injuries or death to any person
or persons or damage to property or loss of property of any kind whatsoever,
whether the person or property of TENANT, its agents or employees, or third
persons from any cause or causes whatsoever while in, on, about, around or upon
the Leased Property, or any part thereof, or on any facility used as a result of
or in connection with TENANT's riverboat gaming operation, during the term of
this Lease, or any renewal thereof, or occasioned by any occupancy or use of the
Leased Property , or any activity carried on by TENANT in connection therewith.
TENANT hereby covenants and agrees to indemnify and save harmless LANDLORD and
LANDLORD'S respective shareholders, directors, officers, employees, agents and
servants from all losses, damages, liabilities, charges, expenses, fines,
penalties, attorney's fees and costs on account of or by reason of any such
injuries, liabilities, claims, suits or losses however occurring, or damages
growing out of same. This indemnity shall apply regardless of whether said
loss, damage, liability, claims, demands, fines, penalties, or suits are
occasioned, brought about or caused, in whole or in part, by the negligence of
LANDLORD and/or LANDLORD'S respective shareholders, directors, officers,
employees, agents and servants and regardless of whether such negligence be
active or passive, primary or secondary. This indemnity shall also apply
regardless of whether said loss, damage, liability, claims, demand or suits are
occasioned, brought about or caused, in whole or in part, by the strict
liability of LANDLORD and/or LANDLORD'S respective shareholders, directors,
officers, employees, agents and servants it being the intention of the parties
hereto that LANDLORD and LANDLORD'S respective shareholders, directors,
officers, employees, agents and servants be indemnified by TENANT against the
consequences of its strict liability. This indemnity shall inure, by
stipulation pour autrui, to the benefit of LANDLORD'S respective shareholders,
directors, officers, employees, agents and servants , and any one of them may
exercise this right of indemnity against TENANT independently of LANDLORD or of
others.
20. ENVIRONMENTAL POLLUTION AND HAZARDOUS SUBSTANCES.
(A) LANDLORD's Representations. Each party LANDLORD makes absolutely no
warranty nor representation as to the condition of the Leased Property,
including any environmental condition. TENANT assumes this Lease subject to the
conditions herein and specifically assumes all liability with respect thereto.
Page 9 of 13
(B) TENANT's Warranties and Representations. TENANT warrants that prior to
commencement of business, it shall have obtained all permits, licenses, and
other documentation required in connection with the development, improvement,
use, operation and maintenance of the property (movable or immovable) conducted
under this Lease, and that no such development, improvement, use, operations or
maintenance of the Leased Property shall give rise to any liability to LANDLORD.
TENANT shall not allow the placement, use or storage on the Leased Property
of any toxic, hazardous or harmful materials, substances, contaminants, or waste
products, as defined by any state, federal or local law or regulation. Any
liability which may be imposed upon LANDLORD as owner of the Leased Property ,
which arises out of the presence and/or release of any toxic, hazardous or
harmful material, waste, substance or product placed or knowingly permitted to
be put or placed on the Leased Property after the effective date of this Lease
is hereby specifically assumed by TENANT.
(C) TENANT's Indemnification. TENANT shall indemnify and hold harmless
LANDLORD and LANDLORD'S respective shareholders, directors, officers, employees,
agents, servants, successors, and assigns against any damages, claims, losses,
liabilities and expenses which may be imposed upon, incurred by, or assessed
against LANDLORD and/or LANDLORD'S respective shareholders, directors, officers,
employees, agents and servants by any other party, including a government
entity, relating in any way to any environmental condition or contamination on
the Leased Property arising out of, directly or indirectly, TENANT's presence
in, on, about, around or upon the Leased Property, even if not discovered until
after termination of the Lease. TENANT's indemnification shall include
reimbursement to LANDLORD for all costs or expenses, damages, claims, fines,
fees, including attorney and consultant fees, civil or criminal fines and
penalties, contract charges, government expenses, accounting, engineering or
other fees. Such indemnity shall survive the Lease term.
Should TENANT fail to promptly comply with any order or directive of any
governmental agency or court regarding corrective action or remediation of the
Leased Property, LANDLORD may take such action as has been ordered or directed
and TENANT shall promptly pay to LANDLORD all reasonable expenses and costs
incurred by LANDLORD, including those described above.
This indemnity shall also apply regardless of whether said loss, damage,
liability, claims, demand or suits are occasioned, brought about or caused, in
whole or in part, by the strict liability of LANDLORD and/or LANDLORD'S
respective shareholders, directors, officers, employees, agents and servants it
being the intention of the parties hereto that LANDLORD and LANDLORD'S
respective shareholders, directors, officers, employees, agents and servants be
indemnified by TENANT against the consequences of its strict liability. This
indemnity shall inure, by stipulation pour autrui, to the benefit of LANDLORD'S
respective shareholders, directors, officers, employees, agents and servants ,
and any one of them may exercise this right of indemnity against TENANT
independently of LANDLORD or of others.
21. WAIVER OF SUBROGATION. Whenever (I) any loss, cost, damage or expense
resulting from any peril covered by fire insurance, with standard extended
coverage, is incurred by any party to this Lease in connection with the Leased
Property, or any property located thereon, and (II) such party is then covered
in whole or in part by insurance with respect to such loss, cost, damage, or
expense, then the party so insured hereby releases the other party from any
liability it may have on account of such loss, cost, damage, or expense to the
extent of any amount recovered by reason of such insurance and waives any right
of subrogation which might otherwise exist in or accrue to any person or account
thereof.
22. HOLDING OVER. Should TENANT remain in possession of the Leased Property or
any part thereof, after the expiration of this Lease, without the execution of a
new Lease by LANDLORD and TENANT, TENANT shall become a tenant from month-to-
month of the property, or part thereof, under all the terms, conditions,
provisions and obligations of this Lease and such
Page 10 of 13
month-to-month tenancy may be terminated by either LANDLORD or TENANT as of the
end of any calendar month upon thirty (30) days prior written notice.
23. QUIET ENJOYMENT. Each party LANDLORD covenants that if and for so long
as TENANT pays the rent and performs the covenants and conditions hereof, TENANT
shall peaceably and quietly have, hold and enjoy the Leased Property for the
full term of this Lease and any renewals thereof.
24. LANDLORD'S REPRESENTATION. Each party LANDLORD represents and warrants
that it has full right, power and authority to execute and perform this Lease
and to grant the estate demised herein. The signatory on behalf of each party
LANDLORD represents and warrants that it has the authority to enter into this
Lease without the consent or approval of any other person or entity and makes
the representations included herein knowing that TENANT will rely thereon.
25. SURRENDER OF PREMISES. Upon termination of this Lease, TENANT shall
surrender the Leased Property in good order and condition, ordinary wear and
tear, alterations and improvements and the elements excepted.
26. ATTORNEY'S FEES. In the event LANDLORD institutes legal proceedings
against TENANT for breach of any of the terms, conditions or covenants of this
Lease, the TENANT shall pay all costs, charges and expenses relative thereto,
including reasonable attorney's fees.
27. NOTICES. Any notice by either party to the other shall be in writing and
shall be deemed to be duly given only if delivered personally or mailed by
registered or certified mail, return receipt requested or by overnight mail
(e.g. Federal Express, Airborne Express, etc.), and received or rejected by the
other party.
IF TO TENANT:
St. Charles Gaming Company, Inc.
2415 West Northwest Highway
Suite 103
Dallas, TX 75220-4446
And to
Isle of Capri Casinos, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
ATTN: Allan B. Solomon or Gregory D. Guida
IF TO LANDLORD:
Port Resources, Inc. and CRU, Inc.
Suite 1700 101 North Huntington
CM Tower Sulphur, Louisiana 70663-2601
One Lakeshore Drive
Lake Charles, Louisiana 70602
28. COMPLIANCE WITH LAWS. TENANT shall comply with all laws, ordinances,
rules and regulations in so far as they pertain solely to the particular manner
in which the TENANT shall use the Leased Property and TENANT represents and
warrants that its particular use and occupancy of the Leased Property (other
than as contemplated by this Lease) shall comply fully with all private
covenants, conditions and restrictions applicable to the Leased Property.
29. NO IMPLIED WAIVER. The failure of a party to insist upon the strict
performance of the Lease or to exercise any remedy for an event of default shall
not be construed as waiver. The waiver of any event of default shall not prevent
a subsequent similar event from being a default. No
Page 11 of 13
waiver shall be effective unless expressed in writing signed by the waiving
party. No waiver shall effect any condition other than the one specified in the
waiver, and then only for the time and the manner stated.
30. TIME IS OF THE ESSENCE. In all instances where either party is required to
pay any sum or do any other act at a particular time or within a specified
period, it is understood that time is of the essence.
31. SEVERABILITY. The headings or titles in this Lease are inserted for
convenience only and are not to be given any effect in its construction.
Wherever appropriate in this Lease, personal pronouns shall be deemed to include
the other genders and the singular to include the plural. If any provision of
this Lease is invalid or unenforceable, the remainder of this Lease shall not be
affected. Each separate provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
If for any reason and at any time any law applicable to TENANT's operation
prohibits gaming or the operation of the contemplated riverboat hereunder, this
Lease shall nevertheless remain in full force and effect for its designated term
and all rights and obligations thereunder shall be complied with.
32. GUARANTY. And now unto these premises comes the Guarantors each of which
declares that in consideration of LANDLORD granting this Lease to TENANT, the
each of the Guarantors do hereby guarantee all and singular of the obligations
of TENANT under this Lease. All previous guaranties contained in the original
leases or amendments thereto remain in full force and effect.
33. CONFIDENTIALITY. LANDLORD shall not make any public announcement or
press release concerning this transaction unless it has received TENANT's
written consent. Notwithstanding anything herein to the contrary, LANDLORD is
entitled to take any and all steps necessary and/or prudent, in LANDLORD's sole
judgment and discretion, to protect LANDOWNER's interest in this Lease and/or in
the Leased Property, said steps including but not limited to inquiries,
investigations, reports, disclosures, communications, notices and/or filings as
the situation may require.
34. AMENDMENT AND RESTATEMENT; LANDLORD'S CONSENT. This Lease constitutes an
amendment and restatement of (1) the Agreement of Lease dated July 17, 1995
between LANDLORD and TENANT affecting the North Tract Property, as amended by
Amendment to Lease dated July 17, 1995 and by Second Amendment to Lease dated
July 25, 1995, and (2) the Agreement of Lease, dated March 24, 1995 between
LANDLORD and TENANT affecting the South Tract Property, as amended by Amendment
to Lease dated May 3, 1995, by the Second Amendment to Lease dated May 16, 1995
and by the Third Amendment to Lease dated June 6, 1995. The Lease is not a
novation of the North Tract Lease or of the South Tract Lease. The Lease is and
remains subject to the provisions of the 1996 Landlord's Consent.
35. RECORDABLE MEMORANDUM. LANDLORD and TENANT agree not to record this
Lease, but each party agrees, upon request by the other, to execute a memorandum
of this Lease in a recordable form and in compliance with applicable law.
36. SUCCESSORS AND ASSIGNS. The provisions of this Lease shall apply to, bind
and inure to the benefit of LANDLORD and TENANT, and their respective successors
and legal representatives.
37. LEGAL INTERPRETATION. This Lease and the right and obligations of the
parties hereto shall be interpreted, construed and enforced in accordance with
the laws of the State of Louisiana.
38. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between the
parties, there being no other terms, oral or written, except as herein
expressed. No modification of this Lease shall be binding on the parties unless
it is in writing and signed by all parties hereto.
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of
the day and year first above written.
WITNESSES:
PORT RESOURCES, INC.
______________________________
BY:_________________________________
William B. Lawton, President
______________________________
CRU, Inc.
______________________________
BY:___________________________________
Thad D. Minaldi, Exec. Vice President
______________________________ & Counsel
ST. CHARLES GAMING COMPANY, INC.
______________________________
BY:_________________________________
Allan B. Solomon, Executive Vice
President and General Counsel
______________________________
LOUISIANA RIVERBOAT GAMING
PARTNERSHIP
______________________________
BY:________________________________
Allan B. Solomon, Executive Vice
President and General Counsel
______________________________
ISLE OF CAPRI CASINOS, INC.
______________________________
BY:________________________________
Allan B. Solomon, Executive Vice
President and General Counsel
_____________________________
Page 13 of 13
[Page 4.b]
3. (C ) Second through all subsequent Renewal Terms (Continued). During the
second Renewal Term, the annual rent for each year of such Renewal Term shall be
not less than the rent for the last twelve (12) months of the preceding Renewal
Term and shall increase over the rent for the last twelve (12) months of the
preceding Renewal Term by an amount equal to the greater of (i) ten percent
(10%) or (ii) the percentage increase in the average consumer price index-all
urban consumers (i.e., the sum of the percentage increase in the CPI-U [All
Urban Consumers]) for the last year of the preceding Renewal Term as published
by the Chamber/Southwest Louisiana whose offices are in Lake Charles, Louisiana,
or such organization's successor, computed on the total annual rent due for the
last twelve (12) months of the preceding Renewal Term. If at any time in the
future the Chamber/Southwest Louisiana and its successor do not exist, the
parties shall negotiate to utilize another organization's published average CPI-
U for purposes of this provision.
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