EXHIBIT 10.11
LEASE
BY AND BETWEEN
CITY OF HAMMOND, DEPARTMENT OF REDEVELOPMENT
EMPRESS CASINO HAMMOND CORPORATION
DATED AS OF JUNE 19, 1996
RECITALS.......................................................................1
ARTICLE I DEFINITIONS..........................................................2
ARTICLE II LEASED PROPERTY.....................................................8
Section 2.01. Leased Property..............................................8
Section 2.02. Leasehold Title..............................................8
Section 2.03. Covenant of Quiet Enjoyment..................................9
Section 2.04. AS IS Condition..............................................9
ARTICLE III THE COMMISSION'S RESERVED RIGHTS...................................9
Section 3.01. Access Rights................................................9
Section 3.02. Water Department Easement...................................10
Section 3.03. Access to Perimeter Road....................................10
Section 3.04. Port Authority Easement and Rights..........................10
ARTICLE IV TERM...............................................................11
Section 4.01. Term........................................................11
Section 4.02. Extension of Term...........................................11
Section 4.03. Holding Over................................................11
ARTICLE V RENT................................................................11
Section 5.01. Base Rent...................................................11
Section 5.02. Additional Consideration....................................11
ARTICLE VI USE OF REDEVELOPMENT PARCEL........................................12
Section 6.01. Permitted Uses..............................................12
Section 6.02. Compliance with Laws, Insurance Policies....................12
Section 6.03. Compliance with Ground Lease, etc...........................13
Section 6.04. Negative Covenants..........................................13
Section 6.05. Hazardous Substances........................................13
ARTICLE VII IMPROVEMENTS......................................................14
Section 7.01. Commencement and Completion of Construction.................14
Section 7.02. Governmental Approvals......................................14
Section 7.03. Title to Improvements.......................................15
Section 7.04. Status Meetings.............................................15
ARTICLE VIII ASSIGNMENT AND ENCUMBRANCES......................................15
Section 8.01. Assignment and Subleases....................................15
Section 8.02. Encumbrances................................................16
Section 8.03. General.....................................................16
-i-
ARTICLE IX TAXES AND UTILITY EXPENSES................................................16
Section 9.01. Payment of Taxes and Utility Expenses..............................16
Section 9.02. Proration of Real Estate Taxes.....................................17
Section 9.03. Right to Contest...................................................17
Section 9.04. Distribution of Overpayment........................................18
Section 9.05. Separate Assessments...............................................18
ARTICLE X MAINTENANCE, REPAIRS AND ALTERATIONS.......................................18
Section 10.01. Maintenance and Repair by the Tenant...............................18
Section 10.02. Alterations........................................................18
ARTICLE XI MECHANICS' LIENS: INDEMNIFICATION.........................................19
Section 11.01. Mechanics' Liens...................................................19
Section 11.02. Indemnification by the Tenant......................................19
ARTICLE XII INSURANCE................................................................20
Section 12.01. Liability Insurance................................................20
Section 12.02. Proof of Insurance.................................................20
Section 12.03. Adjustment in Insurance............................................21
Section 12.04. Waiver of Subrogation..............................................21
Section 12.05. Insurance Proceeds.................................................21
Section 12.06. General Provisions.................................................22
ARTICLE XIII DESTRUCTION.............................................................22
Section 13.01. The Tenant's Obligation to Repair..................................22
Section 13.02. No Abatement.......................................................22
ARTICLE XIV CONDEMNATION.............................................................22
Section 14.01. Total Condemnation.................................................22
Section 14.02. Proceeds of Total Condemnation.....................................22
Section 14.03. Partial Condemnation...............................................23
Section 14.04. Restoration........................................................23
Section 14.05. Temporary Condemnation.............................................24
Section 14.06. Rights to Appear...................................................24
ARTICLE XV MORTGAGES.................................................................24
Section 15.01. Fee Title Not Subordinated.........................................24
Section 15.02. Leasehold Mortgages................................................25
ARTICLE XVI TENANT'S RIGHT TO CURE THE COMMISSION'S DEFAULT UNDER THE HPA
FOOTPRINT SUBLEASE, THE HPA PARKING LEASE AND THE WATER DEPARTMENT LEASE..........25
ARTICLE XVII DEFAULTS................................................................26
Section 17.01. Events of Default by the Developer.................................26
-ii-
Section 17.02. Extensions.................................................26
Section 17.03. Remedies...................................................27
Section 17.04. Default by the Commission..................................27
ARTICLE XVIII BANKRUPTCY AND INSOLVENCY.......................................28
Section 18.01. Certain Events of Default Specified........................28
Section 18.02. Preservation of Leasehold Estate...........................28
ARTICLE XIX SPECIFIC PERFORMANCE..............................................29
ARTICLE XX SURRENDER..........................................................29
Section 20.01. Surrender of Leased Premises...............................29
Section 20.02. Removal of Certain Property................................29
Section 20.03. Personal Property Not Removed..............................30
Section 20.04. Grant of Reciprocal Easements..............................30
Section 20.05. Survival of Terms..........................................30
ARTICLE XXI NO WAIVER.........................................................30
ARTICLE XXII THE COMMISSION'S LIABILITY.......................................31
Section 22.01. Assignment by the Commission...............................31
Section 22.02. Limitation on Right of Recovery............................31
ARTICLE XXIII FORCE MAJEURE...................................................32
ARTICLE XXIV NOTICES..........................................................32
ARTICLE XXV CERTIFICATES......................................................34
ARTICLE XXVI GENERAL..........................................................34
Section 26.01. Governing Law..............................................34
Section 26.02. Partial Invalidity.........................................35
Section 26.03. Memorandum of Lease........................................35
Section 26.04. Remote Vesting.............................................35
Section 26.05. Interpretation.............................................35
Section 26.06. Modification...............................................35
Section 26.07. Parties....................................................35
Section 26.08. Construction of Agreement..................................35
Section 26.09. Attorneys' Fees............................................36
Section 26.10. Authority..................................................36
Section 26.11. Standards for Consent......................................36
-iii-
ARTICLE XXVII DISPUTE RESOLUTION AND TERMINATION..............................36
Section 27.01. Alternative Dispute Resolution.............................36
Section 27.02. Arbitration................................................37
Section 27.03. Action During Pendency of Dispute..........................38
-iv-
LEASE
-----
THIS LEASE is entered into this 19th day of June, 1996, by and between City
of Hammond, Department of Redevelopment (the "Commission"), and Empress Casino
Hammond Corporation, an Indiana corporation (the "Tenant").
RECITALS
--------
WHEREAS, the Commission, acting pursuant to its authority under Indiana
Code 36-7-1-14 et seq., has created the Hammond Marina Development Area for the
purpose of carrying out in such area a redevelopment project and, on May 21,
1996, adopted a resolution confirming the Amended Hammond Marina Area
Development Plan relating to the redevelopment project (the "Development Plan");
WHEREAS, by its Resolution No.______, adopted on _____________, 1996, the
Commission authorized the issuance of a request for proposals for the leasing of
the real estate and interests in real estate (the "Redevelopment Parcel");
WHEREAS, pursuant to Indiana Code 36-7-14-22, the Commission published a
notice to bidders with respect to such proposed lease;
WHEREAS, on June 18, 1996, the Tenant submitted a proposal for
redevelopment to the Commission stating the terms and conditions on which it
would redevelop the Redevelopment Parcel (as such term is hereinafter defined);
WHEREAS, at its public meeting on June 18, 1996, the Commission determined
that the proposal submitted by the Tenant was the highest and best proposal for
the Redevelopment Parcel;
WHEREAS, the city of Hammond, Indiana, the Commission and the Tenant are
entering into a Development Agreement for the purpose of, among other things,
carrying out redevelopment of the Redevelopment Parcel pursuant to the Tenant's
proposal and the Development Plan; and
WHEREAS, the Commission and the Tenant desire to set forth their agreement
with respect to the leasing of the Redevelopment Parcel, the construction of new
improvements thereon and certain other matters affecting the Redevelopment
Parcel and such improvements.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, the Commission and the Tenant agree as follows:
ARTICLE I
---------
DEFINITIONS
-----------
The following terms, when used in this Lease with initial capital letters,
have the following respective meanings:
"Act" means the Riverboat Gambling Act as established by Indiana Code (S)
4-33-1-1, et seq. and all amendments thereto and all rules and orders promulgate
thereunder.
"Affiliate" means (a) any or all of the member, partners and shareholders
of the Tenant, and (b) any limited liability company, partnership, corporation
or other entity in which the Tenant, a wholly-owned or partially-owned but
controlled subsidiary of the Tenant, any of the members, partners or
shareholders of the Tenant, members of the families of the Tenant or any of the
members, partners or shareholders of the Tenant, or a trustee for the benefit of
such family members, or some, any or all of them, directly or indirectly, own an
interest, either singly or in the aggregate, sufficient to effectively control
such entity.
"Applicable Laws" means all laws, rules, regulations, ordinances, codes,
administrative actions and/or orders of any court or governmental agency or
unit, whether federal, state or local, properly exercising or having
jurisdiction with respect to or over the subject matter in question.
"Base Rent" has the meaning set forth in Section 5.01.
"Boat" means the vessel named and known as Empress III, a riverboat casino
owned or leased and to be operated by the Tenant on Lake Michigan from Hammond,
Indiana, that may be further modified, improved, equipped and/or replaced by the
Tenant from time to time as provided in the Development Agreement.
"City" means the municipal corporation of Hammond, Indiana.
"Commencement Date" has the meaning set forth in Section 4.01.
"Commission" means the City of Hammond Redevelopment Commission; provided,
that it is expressly understood and agreed by the Tenant that any obligations of
the Commission under this Lease may be fulfilled by any subdivision, unit,
agency, commission, department, authority, instrumentality, officer or
representative, or any combination thereof, of the City.
-2-
"Condemnation Proceeds" means the total aggregate award, or settlement in
lieu thereof, including any award (or settlement) for the Commission's fee
simple title, in the event of a total taking or Constructive Total Taking of the
Redevelopment Parcel and the Improvements.
"Constructive Total Taking" means a taking of such scope that the remaining
portion of the Redevelopment Parcel and the Improvements is insufficient to
permit the restoration of the Improvements so as to be suitable for the use
primary permitted by Section 6.01.
"Development Agreement" means the Hammond Riverboat Gaming Project
Development Agreement entered into or to be entered into by and among the City,
the Commission, and the Tenant, as the same has been or may hereafter be amended
or modified.
"DMS" means DMS of Hammond, Inc., and any subsequent holder of DMS of
Indiana, Inc.'s right, title or interest under the Ground Lease and the Port
Authority Lease.
"Docking Facilities" has the meaning set forth in the Development
Agreement.
"Environmental Complaint" has the meaning set forth in Section 6.05.
"Environmental Laws" means federal, state and local laws, statutes,
ordinances, rules or regulations, effective on or after the date of execution of
this Lease, relating to pollution or protection of the environment, including
laws or regulations relating to emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment (including, without
limitation, ambient air, surface water, ground water or land) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances or imposing standards of
conduct or liability concerning underground storage tanks. Such laws shall
include, but not be limited to, the Resource Conservation and Recover Act of
1976 (RCRA), 42 U.S.C. (S)(S) 690 et seq. the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S)
9601-9657, as amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA); the Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901
et seq.; the Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq.;
the Clean Air Act, 42 U.S.C. (S)(S) 741 et seq.; the Clean Air Act, 33 U.S.C.
(S) 7401; the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2629; the Safe
Drinking Water Act, 42 U. S.C. (S)(S) 300f-300j; the Atomic Energy Act, 42
U.S.C. (S)(S) 2011, et seq.; the Emergency Planning and Community Right-to-Know
Act, 42 U.S.C. (S)(S) 11001 et seq.; Indiana Code, Title 13 - Environment; or
any amendments thereto; or any similar
-3-
federal, state or local environmental laws, statutes, ordinances, or any
regulations, orders or decrees now or hereafter promulgated thereunder.
"Event of Default" has the meaning set forth in Section 17.01.
"Extension Term" has the meaning set forth in Section 4.02.
"Gaming Commission" means the Indiana Gaming Commission as established
pursuant to the Act.
"Ground Lease" means the Ground Lease Agreement among the Port Authority,
as lessor, Hammond, as co-lessor, and DMS, as lessee, dated as of June 30, 1989,
as the same has been or may hereafter be amended or modified.
"Guest Facilities" has the meaning set forth in the Development Agreement.
"Hammond" means the City of Hammond, Indiana, a municipal corporation.
"Hammond Marina" means the marina and related improvements located on that
portion of Lake Michigan and the adjacent lake front that are subject to the
Port Authority's jurisdiction and generally described and/or depicted on Exhibit
A to, the Development Agreement.
"Hazardous Discharge" has the meaning set forth in Section 6.05.
"Hazardous Substances" means any substance:
(a) The presence of which requires investigation, response, remediation or
other, corrective action under the Resource Conservation and Recovery Act of
1976 (RCRA), 42 U.S.C. (S)(S) 690 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S)
9601-9657, as amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA); the Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901
et seq.; the Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq.;
the Clean Air Act, 42 U.S.C. (S)(S) 741 et seq.; the Clean Water Act, 33 U.S.C.
(S)7401; the Toxic Substances Control Act, 15 U.S.C. (S)(S)2601-2629; the Safe
Drinking Water Act, 42 U.S.C. (S)(S) 300f-300j; the Emergency Planning and
Community Right-to-Know Act, 42 U.S.C. (S)(S) 11001 et seq.; or any amendments
thereto; or any similar federal, state or local environmental laws, statutes or
ordinances, or any regulations, orders or decrees now or hereafter promulgated
thereunder; or
-4-
(b) Which is defined as "hazardous waste," "hazardous substance," "solid
waste," "infectious waste," "toxic substance," "radioactive waste," or is
otherwise regulated by the Resource Conservation and Recover Act of 1976 (RCRA),
42 U.S.C. (S)(S) 690 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. (S)(S) 9601-9657, as
amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA); the
Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 6901 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq.; the Clean
Air Act, 42 U.S.C. (S)(S) 741 et seq.; the Clean Air Act, 33 U.S.C. (S) 7401;
the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2629; the Safe Drinking
Water Act, 42 U.S. C. (S)(S) 300f-300j; the Atomic Energy Act, 42 U.S.C. (S)(S)
2011, et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
(S)(S) 11001 et seq.; Indiana Code, Title 13 - Environment; or any amendments
thereto; or any similar federal, state or local environmental laws, statutes,
ordinances, or any regulations, orders or decrees now or hereafter promulgated
thereunder.
"HPA Footprint Sublease" means the Sublease between the Port Authority, as
landlord, and the Commission, as tenant, dated as of October 13, 1995, as the
same has been or may hereafter be amended.
"HPA Parking Lease" means the Intergovernmental Lease Agreement and Grant
of Easement between the Port Authority, as landlord, and the Commission, as
tenant, dated as of June 11, 1996, as the same has been or may hereafter be
amended.
"Improvements" means all buildings and related improvements (including,
without limitation, the Docking Facilities, the Guest Facilities, the Parking
Facilities, any Infrastructure Facilities, landscaping, driveways, walkways,
surface parking lots, and docking, mooring and marina facilities) that are
hereafter located or constructed by the Tenant (a) on the Redevelopment Parcel
or (b) in the Hammond Marina in the vicinity of the Redevelopment Parcel to the
extent the Commission has any interest therein.
"Infrastructure Facilities" means all pipelines, conduits, ducts, cables,
wires, manholes, vaults, tanks, tunnels or other manmade facilities or
structures, and any encasements containing such facilities, which have been or
will hereafter be installed for the purpose of furnishing, storing, removing or
transmitting electricity, gases, steam, liquid petroleum products, telephone or
other communications, cable television, computer signals or data, sewage
drainage, traffic or other control systems, or water or other utilities or
services to the Improvements.
"Initial Term" has the meaning set forth in Section 4.01.
-5-
"License" means an owner's license as defined in Indiana Code (S) 4-33-2-15
that allows the Tenant to own and operate a riverboat casino on Lake Michigan
from the City of Hammond, Indiana.
"License Date" means the date on which the License is issued to the Tenant
by the Gaming Commission.
"Parcel 1A" means the real estate or interest in real estate described,
and/or depicted in Exhibit B attached hereto and incorporated herein by this
reference.
"Parcel 2" means the real estate or interest in real estate described
and/or depicted in Exhibit C attached hereto and incorporated herein by this
reference.
"Parking Access Parcel" means the real estate or interest in real estate
described and/or depicted in Exhibit D attached hereto and incorporated herein
by this reference.
"Parking Parcels" means the real estate that is described and/or depicted
in Exhibit E attached hereto and incorporated herein by this reference.
"Parking Facilities" has the meaning set forth in the Development
Agreement.
"Parking Garage" has the meaning set forth in the Development Agreement.
"Perimeter Road Parcel" means the real estate described and/or depicted in
Exhibit F attached hereto and incorporated herein by this reference.
"Port Authority" means the Hammond Port Authority.
"Port Authority Lease" means the Lease Agreement among the Port Authority,
as lessee, Hammond and DMS, as lessor, dated as of June 30, 1989, as the same
has been or may hereafter be amended or modified.
"Project Agreement" has the meaning set forth in the Recitals.
"Real Estate Taxes" means and includes all ad valorem real property taxes
and assessments levied upon or with respect to (or, if any such levy is upon or
with respect to a parcel of real estate and improvements thereon of which the
Redevelopment Parcel is a part, then the portion thereof properly allocable and
relating to) the Redevelopment Parcel and the Improvements, or any interest
therein or any part thereof, and all taxes, levies and charges which may be
levied or imposed by any
-6-
governmental authority in replacement of, in lieu of, or in addition to ad
valorem real property taxes, in whole or in part, including but not limited to a
state or local option tax designed for property tax relief purposes, or a
license or franchise fee measured by rents received from the Redevelopment
Parcel and the Improvements, or otherwise measured or based upon Tenant's or the
Commission's interests in the Redevelopment Parcel and the Improvements.
"Redevelopment Parcel" has the meaning set forth in Section 2.01.
"Rent" has the meaning set forth in Section 5.01.
"Reserved Rights" means the rights, privileges and easements respecting the
Redevelopment Parcel expressly reserved to the Commission pursuant to Article
III.
"Taxes" means all Real Estate Taxes, personal property taxes, special and
general assessments, water and sewer service charges, licenses and permit fees,
and other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary, which may be assessed, levied, or
become due and payable with respect to, or become a lien on, the Redevelopment
Parcel or the Improvements, or any interest therein or any part thereof.
"Term" means the Initial Term together with all Extension Terms.
"Trust Indenture" means the Trust Indenture among DMS, the Port Authority
and the Trustee, as Trustee, dated as of June 30, 1989, as the same has been or
may hereafter be amended or modified.
"Trustee" has the meaning set forth in the Development Agreement.
"Utility Expenses" means and includes all charges relating to the providing
of water, steam, heat, cooling, gas, electricity, light, sewer, telephone,
television, telecommunications, trash collection and other similar services
furnished to all or any part of the Redevelopment Parcel and the Improvements
during the Term.
"Water Department" means the Department of Waterworks of the City of
Hammond, Indiana.
"Water Department Lease" means the Lease between the Water Department, as
landlord, and the Commission, as tenant, dated as of June 11, 1996, as the same
has been or may hereafter be amended.
-7-
"Water Department Resolution" means the Resolution of the Board of
Directors of the Department of Waterworks of the City of Hammond Authorizing The
Transfer of Certain Property To The City of Hammond Acting By And Through the
Hammond Redevelopment Commission, And Establishing The Terms And Conditions Of
Such Transfer dated October 11, 1995, as modified, amended and supplemented by
the Resolution of the Board of Directors of The Department of Waterworks Of The
City of Hammond Regarding The Grant of Lease To The City of Hammond, Department
of Redevelopment, The Authorization Of The Execution Of A License Agreement and
Intergovernmental Agreement And Other Matters dated June 18, 1996.
ARTICLE II
LEASED PROPERTY
Section 2.01. Leased Property. The Commission hereby leases to the Tenant
and the Tenant hereby leases from the Commission, upon and subject to the terms,
conditions, covenants and provisions hereof, all of the Commission's now
existing or hereafter acquired rights, title and interests in and to Parcel 1A,
Parcel 2, the Parking Parcels, the Parking Access Parcel and the Perimeter Road
Parcel and all improvements now or hereafter located thereon (including, without
limitation, the Improvements), and all rights, interests, and easements in any
way now or hereafter appurtenant thereto, excluding and reserving, however, to
the Commission and its successors and assigns the Reserved Rights (the leased
property and such appurtenant rights, interests and easements are hereafter
referred to collectively as the "Redevelopment Parcel").
Section 2.02. Leasehold Title. The leasehold estate created by this Lease
and the Tenant's rights hereunder are subject to the following:
(a) The lien of all Real Estate Taxes, all general and special
assessments and all other governmental dues, charges and impositions not
delinquent;
(b) The lien, terms, conditions, and provisions of the Trust Indenture
as to Parcel 1A;
(c) The terms, conditions, and provisions of the Ground Lease as to
Parcel 1A;
(d) The terms, conditions and provisions of the Port Authority Lease
as to Parcel 1A;
-8-
(e) The terms, conditions and provisions of the HPA Footprint Sublease
as to Parcel 1A;
(f) The terms, conditions and provisions of the HPA Parking Lease as
to the Parking Parcels and the Parking Access Parcel;
(g) The terms, conditions and provisions of the Water Department Lease
as to the Perimeter Road Parcel;
(h) The terms, conditions and provisions of the Water Department
Resolution as to Parcel 2;
(i) All easements, restrictions, agreements, covenants and other
matters of record;
(j) All rights, title and interests of the public, the State of
Indiana and any political subdivision of the State of Indiana (including,
without limitation, counties and municipalities) but excluding the
Commission;
(k) All applicable zoning, building and land use and other
governmental restrictions, laws, ordinances, rules and regulations; and
(l) the Reserved Rights.
Section 2.03. Covenant of Quiet Enjoyment. The Commission covenants
and agrees that the Tenant, upon paying the Rent to be paid by it as herein
provided and upon keeping, observing and performing all other covenants and
agreements to be kept, observed or performed by it hereunder, shall at all times
during the Term have the peaceable and quiet enjoyment and possession of the
Redevelopment Parcel, without hindrance from the Commission or anyone claiming
by, through or under the Commission, subject to matters to which this Lease is
subject as provided in the foregoing Section 2.02 and to the Commission's
Reserved Rights as provided in the following Article III. The Commission agrees
to perform all obligations of the Commission under the HPA Footprint Sublease,
the HPA Parking Lease and the Water Department Lease except for those the
Developer is expressly required to perform or discharge by the terms of this
Lease. In the event an adverse claim is made against the Redevelopment Parcel by
someone not claiming by, through or under the Commission or included within the
matters to which this Lease is subject as provided in the foregoing Section
2.02, the Commission shall not be in default hereunder if it cooperates with the
developer in the defense of such adverse claim and takes all reasonable
affirmative action to preserve the Tenant's rights hereunder if the Tenant
agrees to reimburse the Commission for costs and expenses incurred by it in
connection therewith.
-9-
Section 2.04. AS IS Condition. The Tenant's acceptance of the
Redevelopment Parcel is "AS IS, WHERE IS" and without warranty of any kind as to
condition, fitness for the Tenant's purposes or otherwise.
ARTICLE III
THE COMMISSION'S RESERVED RIGHTS
Section 3.01. Access Rights. The Tenant shall permit the Commission,
its authorized representatives and its successors and assigns, upon reasonable
prior notice, to enter upon those portions of the Redevelopment Parcel and the
Improvements which are not required under Applicable Laws or sound business
practices to be restricted access for purposes of maintaining confidentially or
used for the handling or storage of money or similar tokens for the purpose of
(a) inspecting the same, or (b) performing any work in, on or to the
Redevelopment Parcel and Improvements that may be necessary by reason of the
Tenant's failure to perform any such work. Nothing herein shall imply any duty
on the part of the Commission to do any such work, and performance thereof by
the Commission shall not constitute a waiver of the Tenant's default in failing
to perform the same. The Commission shall not be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to the Tenant or any
subtenant by reason of performing any such work and the obligations of the
Tenant under this Lease shall not be affected thereby.
Section 3.02. Water Department Easement. The Commission hereby
reserves an easement in and to the Redevelopment Parcel for the benefit of the
Water Department for purposes of access to, maintenance of, and repairs of the
City of Hammond Water Utility, if necessary. The Tenant acknowledges and agrees
that, provided that the Water Department provides reasonable notice to the
Tenant prior to any entry on the Redevelopment Parcel and does not unreasonably
interfere with the business operations of the Tenant, the Water Department will
not be liable for damages of any kind, direct, consequential, or otherwise, to
the Tenant for any interruption of gaming activities occasioned by and/or
through the maintenance and use of the aforementioned easement by the Water
Department, its employees, agents and/or independent contractors. The Commission
hereby reserves, for the benefit of the Water Department, the right to expand
the Water Department's Waterworks facilities into the Perimeter Road Parcel, as
more particularly set forth in Section 10 of the Water Department Lease. The
Tenant agrees to abide by the provisions of Section 10 of the Water Department
Lease in the event that the Water Department so expands its waterworks
facilities.
Section 3.03. Access to Perimeter Road. The Commission hereby
reserves the nonexclusive right for itself, the Water Department and their
respective
-10-
officers, employees, invitees and guests to use the Drive from its southern
terminus north to the second gate.
Section 3.04. Port Authority Easement and Rights.
(a) The Commission hereby reserves for itself, the Port Authority and
their respective officers, employees, invitees and guests and members of
the public the nonexclusive right to use all driveways, roadways and
walkways now or hereafter located on or within the Parking Access Parcel
for purposes of vehicular and pedestrian access.
(b) Tenant agrees that the Port Authority has reserved for itself, its
officers, employees, invitees, and guests, the City and members of the
public certain rights in the Parking Parcels, as more fully set out in the
HPA Parking Lease.
ARTICLE IV
TERM
Section 4.01. Term. The initial term of this Lease (the "Initial
Term") shall commence on June 19, 1996 (the "Commencement Date") and shall
end at 11:59 p.m. Hammond time on the fifth (5th) anniversary of the
License Date, unless sooner terminated as provided in this Lease.
Section 4.02. Extension of Term. The term of this Lease shall be
automatically extended for periods equal to each renewal period of the
License granted to the Tenant by the Gaming Commission (each such extension
period being referred to herein as an "Extension Period"); provided, that
the total Term shall not exceed seventy-five (75) years.
Section 4.03. Holding Over. In the event the Tenant shall remain in
possession of the Redevelopment Parcel with the prior written consent of
the Commission after the expiration or earlier expiration of the Initial
Term or any Extension Term, the Tenant shall be deemed to be occupying the
Redevelopment Parcel as a tenant from month-to-month subject to all of the
covenants, terms and conditions of this Lease in so far as the same shall
be applicable to a month-to-month tenancy. Such tenancy shall be terminable
by either party upon thirty (30) days prior written notice to the other.
-11-
ARTICLE V
RENT
Section 5.01. Base Rent. The Tenant shall pay to the Commission as
base rent (the "Base Rent") for the Redevelopment Parcel the sum of One Dollar
($1.00) per year. The Commission acknowledges receipt of Seventy-Five Dollars
($75.00), which amount represents the Base Rent for the Term.
Section 5.02. Additional Consideration. As additional consideration
for the leasing of the Redevelopment Parcel, the Tenant shall:
(a) construct the Parking Garage on the Redevelopment Parcel in
accordance with and pursuant to the terms and conditions of the Development
Agreement and transfer and convey all rights, title and interests in and to
the Parking Garage to the Commission as provided in subsection (b) of
Section 7.03 of this Lease by written documents reasonably acceptable to
the Commission and the Tenant; and
(b) execute and perform the obligations under the Development
Agreement, including, but not limited to, the payments required under
Article V of the Development Agreement, all in a form reasonably acceptable
to the Commission, the Tenant and the City.
ARTICLE VI
USE OF REDEVELOPMENT PARCEL
Section 6.01. Permitted Uses. To the extent permitted by Applicable
Laws, the Tenant shall use and occupy the Redevelopment Parcel for the purposes
of (a) constructing the Docking Facilities, the Guest Facilities, the Parking
Facilities and related Infrastructure Facilities in accordance with and as
required by the Development Agreement, (b) the use and operation of such
Improvements for the purposes for which such Improvements were designed, and (c)
all other uses permitted by the S-3 zoning classification as the same is in
effect on the Commencement Date; provided that, the Parking Parcels may not be
used in a manner inconsistent with the HPA Parking Lease. No other uses of the
Redevelopment Parcel or Improvements shall be permitted without the prior
written consent of the Commission. The Tenant shall cause the gaming and other
related facilities operated from the Redevelopment Parcel to be operated as
first-class facilities.
-12-
Section 6.02. Compliance with Laws, Insurance Policies. During the
Term, the Tenant, at its expense, shall, with respect to the development, use
and operation of the Redevelopment Parcel and the Improvements, observe and
comply with all Applicable Laws, and with all orders, rules and regulations of
the National Board of Fire Underwriters, the Indiana Board of Fire Underwriters,
or any other body or bodies exercising similar functions, affecting the
Redevelopment Parcel, or any part thereof; and the Tenant shall pay all costs,
expenses, liabilities, losses, damages, fines, penalties, claims and demands
that may be necessary to achieve such compliance or imposed because of any
failure of compliance by the Tenant. The Tenant, at its expense, shall have the
right to contest by appropriate legal proceedings, the validity or application
of any Applicable Law, order, rules or regulation of the nature referred to in
this Section 6.02. If compliance with any such Applicable Law, order, rules or
regulation legally may be delayed pending the prosecution of any such
proceeding, the Tenant may delay such compliance until a final determination of
such proceeding.
Section 6.03. Compliance with Ground Lease, etc. The Tenant shall
perform and hereby assumes all of the lessee's obligations under the Ground
Lease, all of the sublessee's obligations under the Port Authority Lease, all of
the Commission's obligations under the HPA Footprint Sublease, the HPA Parking
Lease and the Water Department Lease in each case to the extent that such
agreements expressly require the Tenant hereunder to perform and/or assume the
performance of such obligations.
Section 6.04. Negative Covenants. The Tenant shall not (a) commit or
permit any waste to the Redevelopment Parcel or the Improvements, (b) cause or
permit any nuisance (public or private) to occur or exist in or on the
Redevelopment Parcel or Improvements, (c) permit the use of the Redevelopment
Parcel or Improvements for any lewd or lascivious purpose, (d) commit any act or
take any action that would constitute a breach of or default under the Ground
Lease, the Port Authority Lease, the HPA Footprint Sublease, the HPA Parking
Lease, the Water Department Lease or the Trust Indenture or (e) place any
vending machine or similar equipment in or on the Parking Facilities.
Section 6.05. Hazardous Substances.
(a) The Commission represents and warrants to the Developer that as of
the date hereof, the Commission has not received written notice from any
governmental authority concerning the presence of (i) Hazardous Substances on,
under or about the Redevelopment Parcel or (ii) any contamination of the soil,
surface water or ground water on, under or about the Redevelopment Parcel by
Hazardous Substances.
(b) The Tenant shall not place or install any underground storage
tanks on or in the Redevelopment Parcel or the Improvements. The Tenant shall
not
-13-
permit any Hazardous Substances to be placed, held, located, disposed of or
released in or on the Redevelopment Parcel or the Improvements, other than (i)
Hazardous Substances of a nature and in amounts normally present in or on, or
used in connection with the operation of, commercial and retail facilities of
the type constructed on the Redevelopment Parcel, and (ii) to the extent
permitted by and in compliance with Applicable Laws. To the extent any Hazardous
Substances permitted to be placed, held, or located on or in the Redevelopment
Parcel or the Improvements are regulated by any Environmental Laws, the Tenant
shall place, hold, locate or dispose of such Hazardous Substances in strict
compliance with any and all such Environmental Laws.
(c) If the Tenant has knowledge of or receives any notice of (i) the
release, spill, discharge or emission of any Hazardous Substance from, on, in or
about the Redevelopment Parcel or the Improvements or otherwise into the
environment (including, without limitation, ambient air, surface water,
groundwater or land)(a "Hazardous Discharge") or (ii) any inquiry, complaint,
order, citation or notice with regard to the presence of any Hazardous
Substances on or under the Redevelopment Parcel or a Hazardous Discharge from
the Redevelopment Parcel (an "Environmental Complaint") from any person or
entity, including, without limitation, the United States Environmental
Protection Agency and the Indiana Department of Environmental Management or any
successor agency, the Tenant shall give immediate notice thereof to the
Commission disclosing full details of the Hazardous Discharge or Environmental
Complaint, as applicable.
(d) In the event that any Hazardous Substances are leaked, spilled,
disposed of or released from, on or in the Redevelopment Parcel or the
Improvements during the Term as a result of the acts or omissions of the
Developer or any employee, guest, invitee, supplier, vendor, contractor or agent
of the Developer, the Developer shall (i) notify the Commission,(ii) report,
remediate and dispose of such Hazardous Substances to the extent required by and
in compliance with all Applicable Laws, and (iii) take whatever actions are
reasonably necessary to protect the general public and environment from
immediate injury or damage resulting from such Hazardous Substances. At the
conclusion of the remediation and disposal required under this Section 6.04, the
Developer shall cause an environmental engineer acceptable to the Commission to
issue a statement to the Commission that all actions required by this Agreement
or Applicable Laws to be taken with respect to such Hazardous Substances have
been taken and completed and, to the knowledge of the environmental engineer
after reasonable investigation and inquiry, there is no violation of Applicable
Laws with respect to such Hazardous Substances.
-14-
ARTICLE VII
IMPROVEMENTS
Section 7.01. Commencement and Completion of Construction. The Tenant
shall construct the Docking Facilities, Guest Facilities, Parking Facilities and
any Infrastructure Facilities upon the Redevelopment Parcel in accordance with
and upon and subject to all the terms and conditions of the Development
Agreement. The Tenant shall construct the Drive in accordance with and upon and
subject to all the terms and conditions of the Water Department Lease. The
Tenant is prohibited from making or constructing (and shall not make or
construct) any improvements, structures or facilities on the Redevelopment
Parcel other than the Docking Facilities, Guest Facilities, Parking Facilities,
the Drive and any Infrastructure Facilities as currently agreed to and for which
governmental permits and approvals have already been obtained or applied for
without the City's and the Commission's prior written consent.
Section 7.02. Governmental Approvals. The Tenant shall, at its
expense, timely procure all approvals, permits or consents required to be
obtained for the construction of the Improvements from all governmental
authorities having jurisdiction in the matter. The Tenant shall have the right
to make any necessary applications for zoning approvals or variances in
connection with the construction, operation and use of the Improvements and the
Commission hereby consents to the filing of such approvals by the Developer.
Section 7.03. Title to Improvements.
(a) All Improvements on the Redevelopment Parcel other than the
Parking Garage (which shall become the property of the Commission as
hereafter provided) and the Drive (which shall become the property of the
Commission as hereafter provided) shall be the property of the Tenant
during the Term, but shall become the property of the Commission upon the
expiration of the Term or earlier termination of this Lease; and
(b) The Parking Garage shall become the property of the Commission
immediately upon Substantial Completion (as such term is defined in the
Development Agreement) of the construction of the Parking Facilities and
the Commission's acceptance thereof. The Drive shall become the property of
the Commission as it is constructed.
Section 7.04. Status Meetings. The Tenant agrees to meet with the
Redevelopment Commission no less than quarterly in the first year of the
Term and annually thereafter until the end of the Term to report and update
the Commission on the status of the construction of Improvements on the
Redevelopment Parcel as well as
-15-
any and all other matters which may be of mutual concern to the Commission and
the Tenant.
ARTICLE VIII
ASSIGNMENT AND ENCUMBRANCES
Section 8.01. Assignment and Subleases. Except as hereafter
expressly provided in this Section 8.01, the Tenant shall not assign, sell or
transfer this Lease or any interest in the Redevelopment Parcel or title to the
Improvements or any interest therein or sublease all or any part of the
Redevelopment Parcel and/or Improvements (a "Transfer") without the prior
written consent of the Gaming Commission; provided, that in no event shall the
Tenant assign, sell or transfer this Lease or any interest in the Redevelopment
Parcel or title to the Improvements or any interest therein or sublease all or
any part of the Redevelopment Parcel and/or Improvements to any person or entity
that does not hold a License in accordance with the Act; and provided further,
that the Tenant shall not assign, sell or transfer this Lease or any interest in
the Redevelopment Parcel or any title to the Improvements or any interest
therein or sublease all or any part of the Redevelopment Parcel and/or
Improvements to any person or entity that has not executed a written assignment
and assumption agreement whereby the Tenant's obligations under this Lease, the
Development Agreement and the Port Authority Agreement are assigned to and
assumed by such person or entity upon terms reasonably acceptable to the
Commission, the City and the Port Authority. Any assignment or transfer by
operation of law (voluntary or involuntary), merger, conversion or
reorganization, any assignment or transfer to a receiver or trustee in any
federal or state bankruptcy, insolvency or other proceeding or any change in
control of the Tenant or of any entity controlling the Tenant shall constitute a
Transfer for purposes of this Lease. For purposes of this Section 8.01,
"control" means the power to direct the management and policies of the Tenant,
directly or indirectly, whether through the ownership or control of fifty
percent (50%) or more of the shares or other equity or beneficial interest or
power to vote the same, or by the partnership or trust agreement or other
instrument or contract or otherwise; and the term "controlling" has the meaning
correlative to the foregoing. The Tenant shall provide the Commission with at
least one hundred twenty (120) days written notice prior to making any request
to the Gaming Commission to make a Transfer. Notwithstanding the foregoing, the
Tenant shall be entitled to sublease restaurant and retail space in the
Improvements in the ordinary course of business without the prior written
consent of the Commission or the Gaming Commission.
Section 8.02. Encumbrances. The Tenant shall have no right to
mortgage, pledge, hypothecate or otherwise encumber this Lease or its rights or
-16-
interest under this Lease or in the Redevelopment Parcel or title to or
interests in the Improvements or any part thereof.
Section 8.03. General. Any purported Transfer in violation of this
Article VIII shall be void and of no force and effect. In the event of a
permitted Transfer in accordance with the provisions of this Article VIII and
the corresponding assumption by such assignee of all duties and obligations to
be performed or observed by the Tenant hereunder, the assignor shall no longer
be responsible for the future performance or observance of such duties or
obligations.
ARTICLE IX
TAXES AND UTILITY EXPENSES
Section 9.01. Payment of Taxes and Utility Expenses. The Tenant
shall pay and discharge punctually, as and when the same shall become due and
payable (except as otherwise provided in Section 9.02):
(a) all Taxes which are assessed with respect to the Redevelopment
Parcel and the Improvements, or any interest therein or any part thereof,
or any appurtenances or equipment thereon owned by or leased to the Tenant
for any calendar year (or part thereof) within the Term, together with all
interest and penalties thereon;
(b) all Taxes which are payable on or with respect to the Tenant's
personal property and the Tenant's business or operations; and
(c) all Utility Expenses commencing with the first day of the Term.
The Tenant shall be deemed to have complied with the covenants of this
Section 9.01 if payment of Taxes and Utility Expenses shall have been made
either within any period allowed by applicable law before the same shall become
a lien upon the Redevelopment Parcel or Improvements; or, if the Tax or Utility
Expense constitutes a lien before it is due and payable, then, before any
penalty or interest is assessed with respect thereto. The Tenant shall furnish
the Commission with satisfactory evidence of payment of Real Estate Taxes and
any other payment hereunder within thirty (30) days after payment is due or made
whichever event first occurs.
Notwithstanding anything in this Section 9.01 to the contrary, in the
event the Redevelopment Parcel and Improvements (or any part thereof) are
assessed for Real Estate Tax purposes as part of a larger parcel that is owned
by the Commission,
-17-
the tenant shall pay to the Commission on or before ten (10) days prior to the
date the Real Estate Taxes with respect to such larger parcel are due and
payable by the Commission (i) the Tenant's proportionate share (determined on
the basis of acreage) of the Real Estate Taxes assessed for land with respect to
such larger parcel for land and (ii) the Real Estate Taxes assessed with respect
to the Improvements; and the Commission shall, following receipt of such payment
from the Tenant, pay the Real Estate Taxes for such larger parcel.
Section 9.02. Proration of Real Estate Taxes. Real Estate Taxes
assessed for the calendar years in which the Term commences and ends shall be
paid by the Tenant. The Tenant shall pay on the date of termination of this
Lease all Real Estate Taxes due and payable during the calendar year in which
the Term ends and its prorata share of all Real Estate Taxes assessed for the
calendar year in which the Term ends based upon the number of days of the Term
in such calendar year. If the amount of such Real Estate Taxes is not then
determined, the most recently available tax rates and assessed valuations shall
be used in determining the amount to be paid under this Section 9.02.
Section 9.03. Right to Contest. The Tenant shall have the right to
contest all Taxes and Utility Expenses referred to in Section 9.01 by
appropriate legal proceedings, or in such other manner as it may deem
appropriate. Such legal proceedings shall include any and all appropriate
appeals or other proceedings and appeals from orders, judgments or decrees so
long as the same are sufficient to prevent a foreclosure sale. The Tenant shall
conduct all such proceedings at its expense. The Commission shall execute all
documents reasonably required for such proceedings. The Tenant shall reimburse
the Commission for any costs or expenses incurred by the Commission in
connection therewith. Notwithstanding the foregoing, the Tenant shall pay any
such Taxes or Utility Expenses prior to the time the Redevelopment Parcel or
Improvements (or any part thereof) shall become subject to sale upon foreclosure
of the lien therefor.
Section 9.04. Distribution of Overpayment. If there shall be any
refunds or rebates on account of Taxes or Utility Expenses paid by the Tenant
under the provisions of this Lease, such refund or rebate shall belong to the
Tenant, whether or not received by the Commission during or after the Term;
provided, however, that in the event of a refund or rebate resulting from the
contest of Real Estate Taxes, the Commission shall be entitled to its
proportionate share of such refund or rebate if the Real Estate Taxes were
assessed on a larger parcel owned by the Commission of which the Redevelopment
Parcel and/or Improvements are a part. Any refunds so received by the Commission
shall, be deemed to be received by the Commission in trust for the Tenant and
shall be paid to the Tenant as its interest appears within ten (10) days of
receipt. The Commission will, upon request of the Tenant, sign any receipts
which may be necessary to secure the payment of any such refund or rebate.
-18-
Section 9.05. Separate Assessments. If the Redevelopment Parcel is
part of a larger parcel that is owned by the Commission, upon request of the
Tenant at any time, the Commission will make application individually, or will
join in the Tenant's application, and will execute such instruments as may be
necessary or appropriate to obtain separate tax assessments for portions of the
Redevelopment Parcel and/or Improvements. The Tenant shall pay to the Commission
any costs or expenses incurred or to be incurred by the Commission in connection
therewith.
ARTICLE X
---------
MAINTENANCE, REPAIRS AND ALTERATIONS
------------------------------------
Section 10.01. Maintenance and Repair by the Tenant. The Tenant shall
at all times during the Term, at its expense, keep and maintain or cause to be
kept and maintained the Redevelopment Parcel and Improvements in a first-class,
clean and safe condition and repair and in compliance with all Applicable laws
including, without limitation, the making of all necessary structural repairs
and replacements. The Commission shall not be required to furnish any services
or facilities or to make any improvements, repairs or alterations in or to the
Redevelopment Parcel or the Improvements during the Term.
Section 10.02. Alterations. After the initial construction of the
Improvements other than the Parking Garage and the Drive, the Developer shall
not make, construct or install any alterations, changes, replacements,
improvements or additions to all or any portion of such Improvements that affect
the structural integrity or exterior appearance of such Improvements without the
prior written consent of the City and the Commission. Notwithstanding the
preceding sentence, after the initial construction of the Parking Garage and the
Drive, the Developer shall not make, construct or install any alterations,
changes, replacements, improvements or additions to all or any portion of the
Parking Garage or the Drive without the prior written consent of the City and
the Commission.
ARTICLE XI
----------
MECHANICS' LIENS: INDEMNIFICATION
---------------------------------
Section 11.01. Mechanics' Liens. The Tenant shall promptly after the
filing thereof discharge of record, bond over or insure over, at the Tenant's
expense, any mechanics', materialmen's or other lien, or notice of intention to
file any such lien, filed against the Redevelopment Parcel or Improvements or
any part thereof or interest therein; provided that the Tenant shall have the
right to contest the validity of any such
-19-
lien in any manner permitted by law so long as the Tenant (a) shall provide to
the Commission title insurance, an indemnity, bond or other assurance or
security reasonably satisfactory to the Commission; and (b) shall thereafter
diligently proceed to cause such lien or notice of intention to file a lien to
be removed and discharged. If the Tenant shall fail to so discharge, or to seek
to discharge, any such lien or notice of intention to file a lien, then the
Commission may, but shall not be obligated to, discharge the same, either by
paying the amount claimed to be due, or by procuring the discharge of such lien
by depositing in court a bond for the amount claimed or in such other manner as
is or may be permitted by law, and the Tenant shall reimburse and indemnify the
Commission in respect thereto.
Section 11.02. Indemnification by the Tenant. The Developer agrees, at
the sole cost and expense of the Developer, to protect, defend, indemnify and
save harmless the Commission from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, and other costs and
expenses (including, without limitation, reasonable attorneys' fees, reasonable
compensation for preparing and attending depositions or serving as a witness
where not named as a defendant, court costs and litigation expenses), imposed
upon or incurred by or asserted against the Commission by reason of, arising out
of or pertaining to: (a) the Tenant's possession, use or control of the
Redevelopment Parcel or the Improvements or any part thereof during the Term,
(b) the condition of the Redevelopment Parcel or the Improvements or any part
thereof during the Term, (c) any Event of Default, or (d) any willful or
negligent act or omission of the Tenant, or any of its agents, contractors,
licensees, subtenants or its or their employees, customers or invitees. In any
circumstance where the Tenant is obligated under this Lease to indemnify the
Commission, the Tenant shall have the right to undertake, conduct, and control,
through counsel of its choosing, reasonably acceptable to the Commission, and at
the sole expense of the Tenant, the conduct and settlement of such matter, and
the Commission shall cooperate therewith; provided, however, that (w) the Tenant
shall not thereby permit to exist any lien, encumbrance, or other adverse change
upon the assets of the Commission, (x) the Tenant shall not thereby consent to
the imposition of any injunction against the Commission without the consent of
such person or persons, (y) the Tenant shall permit the Commission to
participate in such dispute or the settlement thereof through counsel chosen by
the Commission, but the fees and expenses of such counsel shall be borne solely
by the Commission, and (z) the Tenant shall agree promptly to reimburse the
Commission for the full amount of the obligations due hereunder. If the
Commission reasonably believes that counsel selected by the Tenant has a
conflict of interest by reason of asserting or threatening to assert a
limitation on or defense to the indemnification obligation of the Tenant or
otherwise or a conflict of interest arises between the Tenant and the
Commission, then the Commission may select new, independent counsel, reasonably
acceptable to the Tenant, who shall represent the Commission at the sole cost
and expense of the Tenant. The Tenant shall specify any claimed limitations on
or defenses to its indemnification obligation upon the Commission' request
therefor. So
-20-
long as the Tenant is contesting any such matter in good faith and the
operations or assets of the Commission are not in any way impaired, the
Commission may not pay or settle any such action or suit without the consent of
the Tenant unless it chooses to waive its rights to reimbursement and
indemnification hereunder. Notwithstanding the foregoing, the Commission shall
have the right to pay or settle any such action or suit, provided that in such
event the Commission shall waive any right to indemnity therefore. However, if
the Tenant is obligated, but ceases to contest such matter in good faith, then
the Commission may pay or settle such action or suit, and obtain reimbursement
from the Tenant.
The Tenant's indemnification obligations hereunder shall be in addition to
any and all other obligations the Tenant may have to the Commission under any
other agreement, at law or in equity and shall survive the expiration of the
Term or earlier termination of the Lease and any transfer by the Commission of
its interests in Redevelopment Parcel or the Improvements.
ARTICLE XII
INSURANCE
Section 12.01. Liability Insurance. The Tenant shall maintain and keep in
force at all times during the Term, at its sole cost and expense, the insurance
required to be maintained by the Tenant pursuant to the Development Agreement.
The Tenant shall name the Water Department and Port Authority as additional
insureds under the insurance policy to be maintained by the Tenant under
subsection 8.19 (a) (viii) and (xi) of the Development Agreement.
Section 12.02. Proof of Insurance. The Tenant shall deliver copies of the
insurance policies showing the insurance required by this Article XII to the
Commission on or before the date of execution of this Lease, and thereafter a
copy of each replacement policy shall be provided not less than sixty (60) days
prior to the expiration of the policy being replaced. Each such policy referred
to in this Article XII shall contain a provision providing that the policy shall
not be cancelled, not renewed or materially amended without sixty (60) days
prior written notice to the Commission.
Section 12.03. Adjustment in Insurance. If after the Initial Term and no
more frequently than every five years thereafter, by reason of changed
conditions or by reason of experience the Commission reasonably determines that
the insurance amounts referred to in the foregoing Section 12.01 are inadequate,
the Tenant shall, at the request of the Commission, increase the amounts of such
insurance carried to the extent appropriate for like facilities under like
circumstances. In the event that it shall become customary for lessees of
similar premises to maintain types or coverages of
-21-
insurance other than those required to be maintained by the Tenant under this
Article XII, the Tenant shall maintain such other types of coverages of
insurance upon written request of the Commission so long as such types or
coverages of insurance can be obtained by the Tenant at reasonable cost.
Section 12.04. Waiver of Subrogation. The Tenant and the Commission waive
all rights against each other and against those for whom the other is legally
liable for all losses covered by insurance provided under this Article XII to
the extent the limits of such insurance are adequate to cover such losses, it
being the intent of this provision to allocate all risk of such loss to such
insurance; provided, however, that this waiver shall not be effective if it
would preclude or prejudice the right of the Commission or the Tenant to recover
under such insurance policy. If the policies of insurance provided for under
this Article XII require an endorsement to provide for continued coverage where
there is a waiver of subrogation, the Tenant shall cause such policies to be so
endorsed.
Section 12.05. Insurance Proceeds. The proceeds of all policies of
insurance on the Improvements maintained pursuant to Section 12.02 shall be used
as a trust fund toward the repair, replacement or rebuilding of the
Improvements. Accordingly, all insurance proceeds for damage to the
Improvements paid to the Tenant and/or the Commission under such policies shall
be held by or delivered to the Developer in trust for the payment of the costs
of repairing, replacing and rebuilding the Improvements. If such insurance
proceeds shall exceed the cost of repairing, replacing or rebuilding the
Improvements, the balance remaining after payment of such costs shall be the
property of and shall be retained by the Tenant.
The Commission shall cooperate fully with the Tenant in collecting such
insurance proceeds and shall execute and deliver, as requested by the Tenant,
any and all proofs, receipts, releases and other instruments as may be
appropriate for such purpose.
Section 12.06. General Provisions. In the event the Tenant shall fail or
refuse to obtain any insurance required by this Article XII, the Commission, in
addition to any other rights the Commission may have under this Lease or at law
or in equity, shall have the option to obtain such insurance. The cost of such
insurance shall constitute additional rent payable by the Tenant to the
Commission immediately upon demand.
-22-
ARTICLE XIII
DESTRUCTION
Section 13.01. The Tenant's Obligation to Repair. If at any time during
the Term the Improvements shall be destroyed or damaged by fire or other cause,
the Tenant shall cause the same to be repaired, replaced or rebuilt within a
period of time which, under all prevailing circumstances, shall be reasonable.
In the repair, replacement or rebuilding of any the Improvements hereunder, the
Tenant shall repair, replace or rebuild the Improvements so damaged or destroyed
to their condition immediately before such damage or destruction, subject to all
then Applicable Laws. If the net insurance proceeds payable in respect of any
such damage or destruction shall be insufficient to pay the entire cost of such
repair, replacement or rebuilding, the Tenant shall provide for the deficiency.
In such event, the time within which the Tenant shall be required to commence
and complete its obligations hereunder shall include a reasonable time to obtain
and close the necessary commitments for equity financing to cover the
deficiency.
Section 13.02. No Abatement. In no event shall Rent or other charges due
hereunder abate in the event of such damage or destruction.
ARTICLE XIV
CONDEMNATION
Section 14.01. Total Condemnation. If at any time during the Term there
shall be a total taking or a Constructive Total Taking of the Redevelopment
Parcel and the Improvements in condemnation proceedings or by any right of
eminent domain or by a conveyance in lieu thereof, this Lease shall terminate on
the date of such taking.
Section 14.02. Proceeds of Total Condemnation. In the event of any such
total taking or Constructive Total Taking and the termination of this Lease, the
Condemnation Proceeds shall be apportioned and paid, to the extent available, in
the following order of priority:
(a) First, to the payment of costs and expenses, including (without
limitation) court costs and reasonable attorneys' fees, incurred by the
Commission and the Tenant in connection with such taking;
(b) Second, to the Commission in an amount equal to the fair market
value of the Parking Garage;
-23-
(c) Third, to the Tenant in an amount equal to the fair market value
of all other Improvements on the Redevelopment Parcel,
(d) Fourth, to the Developer in an amount equal to the remaining
balance multiplied by a fraction, the numerator of which is a number
determined by subtracting the number of full or partial calendar years that
have passed between the Commencement Date and the date that possession of
the Improvements are delivered to the condemning authority from twenty-five
(25) and the denominator of which is twenty-five (25); and
(e) Any remaining balance shall be paid to the Commission.
Nothing herein contained shall impair the right of the Tenant to the full award,
compensation or damages payable as an award for loss of business or for moving
expenses, as long as such award shall not reduce the amount of the award
otherwise recoverable by the Commission from the condemning authority.
Section 14.03. Partial Condemnation. In the event of a taking that is
less than a Constructive Total Taking, this Lease shall not terminate. The
Condemnation Proceeds in such event shall be apportioned and paid, to the extent
available, in the following order of priority:
(a) First, to the payment of costs and expenses, including (without
limitation) reasonable attorneys' fees, incurred by the Commission and the
Tenant in connection with such taking;
(b) The balance of the Condemnation Proceeds shall be paid in trust
to Tenant to be disbursed and used for payment of the costs of repairing,
replacing or rebuilding the Improvements in the manner then reasonably
feasible as required by Section 14.04; and
(c) The Condemnation Proceeds, if any, remaining after repair,
replacement or rebuilding shall be paid to the Commission.
Section 14.04. Restoration. In the event of a taking that is less than a
Constructive Total Taking, the Tenant shall proceed with due diligence to
repair, replace or rebuild the remaining the Improvements to their former
condition as nearly as may be reasonably possible and in compliance with the
requirements of the Development Agreement for the performance of the Work (as
such term is defined in the Development Agreement). If the Condemnation
Proceeds are insufficient to pay the entire cost of such repair, replacement or
rebuilding, the Tenant shall pay any such deficiency.
-24-
Section 14.05. Temporary Condemnation. If, at any time during the Term,
the whole or any part of the Redevelopment Parcel or the Improvements or the
Tenant's interest therein under this Lease shall be taken in condemnation
proceedings or by any right of eminent domain for temporary use or occupancy,
the foregoing provisions of this Article shall not apply, and, except to the
extent that the Tenant may be prevented from so doing pursuant to the terms of
the order of the condemning authority, the Tenant shall perform and observe all
of the other terms, covenants, conditions and obligations hereof to be performed
and observed by it, as though such taking had not occurred. In the event of any
such taking of the character referred to in this Section 14.05, the Tenant shall
be entitled to receive the entire amount of the Condemnation Proceeds paid for
such taking, whether paid by way of damages, rent, costs of moving or
restoration or otherwise, unless such period of temporary use or occupancy shall
extend beyond the Term, in which case the Condemnation Proceeds shall be
apportioned between the Commission and the Tenant as of the date of termination
of this Lease. Upon the expiration of any such period of temporary use or
occupancy during the Term, the Tenant shall, at its expense, restore the
Improvements as nearly as may be reasonably possible to the condition in which
the same were immediately prior to such taking. If such period of temporary use
or occupancy shall extend beyond the expiration of the Term, any portion of the
Condemnation Proceeds received by the Tenant as compensation for the cost of
restoration of the Improvements shall be paid by the Tenant to the Commission on
the date of termination of this Lease, and the Tenant shall be thereby relieved
of the obligation to perform such restoration.
Section 14.06. Rights to Appear. The Commission and the Tenant shall have
the right to participate in any condemnation proceeding for the purpose of
protecting their rights hereunder, and in this connection, specifically and
without limitation, to introduce evidence to establish the value of or damage to
the Redevelopment Parcel and the Improvements or any part thereof.
ARTICLE XV
MORTGAGES
Section 15.01. Fee Title Not Subordinated. Nothing herein shall be deemed
to constitute a subordination of the Commission's rights, title or interests in
the Redevelopment Parcel or the Improvements to any mortgage or to require the
Commission to execute any mortgage or agreement or instrument or take any action
to effect any such subordination.
-25-
Section 15.02. Leasehold Mortgages. The Tenant shall not mortgage
pledge, hypothecate or otherwise encumber its interests under this Lease or in
the Redevelopment Parcel and/or its interests in or title to the Improvements or
any part thereof.
ARTICLE XVI
TENANT'S RIGHT TO CURE THE COMMISSION'S
DEFAULT UNDER THE HPA FOOTPRINT SUBLEASE,
THE HPA PARKING LEASE AND THE WATER DEPARTMENT LEASE
The Commission shall give the Tenant notice of each notice of default
given to the Commission under the HPA Footprint Sublease, the HPA Parking Lease
or the Water Department Lease. The Tenant shall have the right to remedy or
cause to be remedied the default which is the basis of any such notice; and the
Commission shall instruct the Port Authority and the Water Department to accept
performance by the Tenant as performance by the Commission. Nothing herein
contained shall require the Tenant to cure or undertake to cure any default of
the Commission under the HPA Footprint Sublease, the HPA Parking Lease or the
Water Department Lease. The Commission shall use its best efforts to require the
Port Authority and the Water Department to provide direct notices of the
Commission's defaults to the Tenant. The Commission hereby represents that there
are no uncured defaults or matters which, with the passage of time or the giving
of notice, would ripen into defaults with respect the HPA Parking Lease or the
Water Department Lease and that it has not received any written notice of
default with respect to the HPA Footprint Sublease. The Commission shall use its
best efforts to obtain agreements of non-disturbance from the Port Authority and
the Water Department under which such entities agree not to disturb the Tenant
so long as it is not in default hereunder in the event that any of the foregoing
agreements are terminated by legal proceedings or otherwise.
-26-
ARTICLE XVII
DEFAULTS
Section 17.01. Events of Default by the Developer. Each of the
following events, if not remedied as hereinafter provided, shall be deemed an
"Event of Default":
(a) The occurrence of any event set forth in Article XVIII, as
therein provided; or
(b) The Tenant's failure to pay any Rent of the due date thereof, and
such failure continues for sixty-(60) days after receipt of written notice
thereof from the Commission; or
(c) The Tenant's failure to perform any other covenant or agreement
herein on the Tenant's part to be kept or performed which is not an Event
of Default under paragraphs (a), (b), (d), (e), (f) or (g) of this Section
17.01 and the continuance of such failure for a period of thirty (30) days
after notice in writing to the Tenant from the Commission specifying the
nature of such failure; or
(d) An Event of Default by the Tenant occurs under the Development
Agreement; or
(e) An Event of Default by the Tenant occurs under the Port Authority
Agreement; or
(f) The Tenant dies not receive a License on or before December 31,
1996; or
(g) The occurrence of an Event of Default pursuant to subparagraph
(f) of Section 16.01 of the Development Agreement.
Section 17.02. Extensions. If the Commission gives notice at any time
of a default of a nature that cannot be cured within the thirty (30) day period
provided in Section 17.01(c), then such default shall not be deemed an Event of
Default so long as the Tenant, following notice from the Commission, proceeds to
cure the default as soon as reasonably possible and continues to take all
reasonable steps necessary to complete the same within a period of time which,
under all prevailing circumstances, shall be reasonable. In addition, no Event
of Default shall be deemed to have occurred if and so long as the Tenant shall
be delayed in or prevented from curing the same within the applicable cure
period by Unavoidable Delay.
-27-
Section 17.03. Remedies. Upon the occurrence of any Event of Default
pursuant to subparagraphs (a), (b), (c), (d) or (e) of Section 17.01, or at any
time thereafter so long as the same is not cured, the Commission may (a) cure
any such Event of Default and collect the cost thereof from the Tenant upon
demand, (b) seek, obtain and enforce a judgment for specific performance or
other declaratory relief against Tenant for the performance of any agreement or
covenant contained in this Lease in the Tenant's part to be kept or performed,
and/or (c) seek, obtain and enforce a judgment for monetary damages resulting
from any such Event of Default.
Upon the occurrence of any Event of Default under subparagraphs (f) or
(g) of this Section 17.01, or at any time thereafter, the Commission may, at its
option and in addition to and without prejudice to any other rights and remedies
the Commission shall have under this Lease or at law or in equity, give to the
Tenant a written notice of its election to end the Term of this Lease and
terminate this Lease upon a date specified in such notice, which date shall be
not less than forty-five (45) days after the date of delivery to the Tenant of
such notice by the Commission.
Section 17.04. Default by the Commission. The Commission's failure or
refusal to perform any provision of this Lease which it is obligated to perform
or the breach of any covenant herein shall be a default by the Commission. In
the event of a default by Landlord, Tenant may:
(a) In an Emergency Situation, as hereinafter defined, if the default
is not cured after reasonable notice to (or attempts to notify) the
Commission, Tenant may cure the default, provided that such cure is not
more extensive than is reasonably necessary under the circumstances; and
(b) In a non-Emergency Situation, if the default is not cured within
thirty (30) days of written notice from Tenant to the Commission (or if
such default is of such a nature as to not be extended so long as the
Commission commences its efforts to cure within said thirty (30) day period
and thereafter diligently pursues the same to completion), Tenant may cure
the default;
If Tenant incurs any sum because of the Commission's default, the
reasonable sums paid by Tenant shall be due from the Commission to Tenant upon
demand and Tenant may recover such sums as provided at law; provided, that
Tenant shall not offset or credit any such sums against Tenant's payment or the
obligations hereunder. "Emergency Situation" as used in this Section means a
situation which threatens the physical well-being of persons in or on the
Redevelopment Parcel or which threatens immediate and material damage to
Tenant's property located on or in the Redevelopment Parcel.
-28-
ARTICLE XVIII
BANKRUPTCY AND INSOLVENCY
Section 18.01. Certain Events of Default Specified. If during the
Term:
(a) The Tenant shall be adjudicated a bankrupt or adjudged to be
insolvent;
(b) A receiver or trustee shall be appointed for the Tenant's
property and affairs, unless such appointment shall be vacated within
ninety (90) days of its entry;
(c) The Tenant shall make an assignment for the benefit of creditors;
(d) A petition shall be filed proposing the adjudication of the
Tenant as a bankrupt or insolvent or the reorganization of the Tenant or an
arrangement by the Tenant with its creditors whether pursuant to the United
States Bankruptcy Code or any similar federal or state proceedings, unless
such petition is filed by a party other than the Tenant and is withdrawn or
is dismissed within ninety (90) days after the date of filing; or
(e) Any execution or attachment shall be issued against the Tenant or
any of the Tenant's property, whereby the Redevelopment Parcel or the
Improvements shall be taken or occupied or attempted to be taken or
occupied by someone other than the Tenant, unless such attachment is a
prejudgment attachment that is set aside within ninety (90) days after the
issuance of the same;
then, subject to Section 18.02, an Event of Default hereunder shall be deemed to
have occurred so that the provisions of Article XVII hereof shall become
effective; and the Commission shall have the rights and remedies provided for
therein in addition to all other legal remedies available to the Commission.
Section 18.02. Preservation of Leasehold Estate. Notwithstanding
anything to the contrary contained in Article XVII, upon the occurrence of an
Event of Default pursuant to this Article XVIII, then if the Rent due and
payable hereunder shall continue to be paid and the other covenants and
agreements of this Lease on the Tenant's part to be kept and performed shall
continue to be kept and performed, no Event of Default shall be deemed to have
occurred and the provisions of Article XVII shall not become effective.
-29-
ARTICLE XIX
SPECIFIC PERFORMANCE
In addition to any other rights that the Tenant or the Commission may
have under this Lease, if the other fails or refuses to execute, acknowledge and
deliver any instrument or instruments or to take any other action (other than an
action solely involving the payment of any sum of money) required to effectuate
the provisions of this Lease within the time period required by this Lease or,
if no time period therefor is specified in this Lease, within any reasonable
time period specified in any request from the other party, then from and after
the date fifteen (15) days after the date of delivery of a written demand to
the other party requesting such execution, acknowledgment and delivery or other
action, the requesting party shall be entitled to specific performance,
declaratory relief, or such other remedies at law or equity which may be
appropriate to effectuate the provisions of this Lease; provided, that the
Commission shall not be entitled to terminate this Lease except in accordance
with the terms and provisions of Article XVII.
ARTICLE XX
SURRENDER
Section 20.01. Surrender of Leased Premises. The Tenant shall
surrender the Redevelopment Parcel and the Improvements to the Commission at the
expiration of the Term or earlier termination of the Lease or of the Tenant's
right to possession hereunder, without delay, in good order, condition and
repair except for reasonable wear and tear after the last necessary repair,
replacement, or rebuilding made by Tenant, with all leasehold improvements
necessary for the continued operation of the Improvements for the purposes for
which such Improvements were designed, free and clear of all liens and
encumbrances except the liens for taxes and assessments not then due and
payable, and without any payment or allowance whatever by the Commission for the
Improvements made by the Tenant. The Improvements, if not already the property
of the Commission, shall become the property of the Commission upon such
expiration or termination. For purposes of this Section 20.01 leasehold
improvements shall include (without limitation) floor coverings (excluding area
rugs), wall coverings, ceilings, lighting systems and fixtures, plumbing
fixtures and other mechanical systems, equipment and facilities and built-in
installations. Leasehold improvements do not include trade fixtures; trade
equipment, kitchen equipment, furniture, inventory and similar movable personal
property.
-30-
Section 20.02. Removal of Certain Property. All furniture, trade
fixtures, and other personal property may be removed by or on behalf of the
Tenant at or prior to the expiration of the Term or other termination of this
Lease or of the Tenant's rights of possession hereunder, but only if, and to the
extent, that the removal thereof will not cause physical injury or damage to the
Redevelopment Parcel or the Improvements or necessitate changes or repairs to
the same. The Tenant shall pay or cause to be paid to the Commission the cost of
repairing or restoring any injury or damage to the Redevelopment Parcel or the
Improvements arising from such removal so as to return the Redevelopment Parcel
and the Improvements to its condition immediately prior to such removal.
Section 20.03. Personal Property Not Removed. Any personal property
of the Tenant which shall remain in or upon the Redevelopment Parcel or the
Improvements as of the date the Tenant has surrendered possession of the
Redevelopment Parcel and the Improvements shall be deemed to have been abandoned
by the Tenant, and at the option of the Commission, such property: (a) shall be
retained by the Commission as its property; (b) shall be disposed of by the
Commission in such manner as it shall determine, without accountability to any
person; or (c) shall be promptly removed by the Tenant, at the Tenant's expense,
upon written request from the Commission. The Commission shall not be
responsible for any loss or damage occurring to any property owned by the Tenant
or any licensee or sublessee of the Tenant.
Section 20.04. Grant of Reciprocal Easements. In the event that, at
the time of the expiration of the Lease or earlier termination of the Lease, the
Tenant or an Affiliate of the Tenant owns real estate adjacent to the
Redevelopment Parcel on which are constructed driveways or walkways providing
access to any Improvements or any other facilities essential to the reasonable,
economic use of the Improvements, the Tenant shall grant or cause its Affiliate
to grant the Commission such easements appurtenant to the Redevelopment Parcel
as the Commission shall reasonably request providing for the continued use of
such driveways, walkways and/or facilities in connection with the Improvements
in the manner the same were used prior to the expiration or earlier termination
of the Term. Such easements may require the Commission to contribute to the cost
of maintenance and repair of such driveways, walkways and/or facilities upon
terms reasonable and appropriate under the prevailing circumstances.
Section 20.05. Survival of Terms. The terms of this Article XX shall
survive any termination of this Lease.
-31-
ARTICLE XXI
NO WAIVER
Failure of the Commission or the Tenant to complain of any act or
omission on the part of the other party, however long the same may continue,
shall not be deemed to be a waiver by said party of any of its rights hereunder.
No waiver by Commission or the Tenant at any time, express or implied, of any
breach of any provision of this Lease shall be deemed a waiver of a breach of
any other provision of this Lease or a consent to any subsequent breach of the
same or any other provision. No acceptance by the Commission of any partial
payment shall constitute an accord or satisfaction, and such partial payment
shall only be deemed a part payment on account.
ARTICLE XXII
THE COMMISSION'S LIABILITY
Section 22.01. Assignment by the Commission. The Commission may
transfer or assign this Lease or any interests herein or title to or interests
in the Redevelopment Parcel or the Improvements to any governmental entity with
the power to perform the duties and obligations and the authority to grant the
rights set forth in this Lease without the requirement of any consent by the
Tenant. No other transfer, assignment or sublease shall be allowed without the
consent of Tenant. In the event of any such transfer or assignment by the
Commission and the assumption by such transferee or assignee of all duties and
obligations to be performed or observed by the Commission hereunder with respect
thereto, only the transferee or assignee shall be responsible for the
performance or observance of such covenants or agreements. It Is the intent of
this Section 22.01 that the provisions of this Lease shall be binding on the
Commission, its successors and assigns, only during and in respect of their
respective periods of ownership.
Section 22.02. Limitation on Right of Recovery. Notwithstanding
anything to the contrary contained in this Lease, there shall be absolutely no
personal liability on the Commission, or any successor, assign, member, officer,
employee, agent or attorney of the Commission, with respect to the terms,
covenants and provisions of this Lease, and the Tenant shall look solely to the
interest of the Commission, its successors and assigns, in the Redevelopment
Parcel for the satisfaction of each and every remedy of the Tenant in the event
of any breach by the Commission (or by such successor or assign) of any of the
terms, covenants and provisions of this Lease to be observed or performed by the
Commission hereunder, such exculpation of personal liability to be absolute and
without any exception whatsoever. Notwithstanding anything
-32-
to the contrary contained in this Agreement, there shall be absolutely no
personal liability attributed to any member, director, shareholder, officer,
employee, agent, or attorney of the Tenant with respect to the terms, covenants,
and provisions of this Lease, such exculpation of personal liability being
absolute and without any exception whatsoever.
ARTICLE XXIII
FORCE MAJEURE
Notwithstanding anything contained in this Lease to the contrary, if
the Tenant or the Commission is delayed, hindered, or prevented in the
performance of any act or the achievement of any deadline required under this
Agreement (other than the payment of money) by reason of fire, casualty,
strikes, lockout, labor troubles, inability to procure materials or supplies,
failure of power, Gaming Commission or other governmental authority, weather,
riots, insurrection, war, or other reasons of like nature, or failure of timely
performance by or acts of the other party ("Force Majeure Events"), and such
delays, hindrances, or prevention of performance are not within the reasonable
control of the party obligated to perform, the party affected by such delay
shall promptly give notice thereof to the other parties and thereupon
performance of such act shall be excused for the period of delay and/or such
deadline extended for a period equal to the period of delay. Such excusal and/or
extension of time shall be, however, predicated upon the party subject to the
Force Majeure Event (i) notifying the other party in writing of the delay and
reasons causing the delay within thirty (30) days upon learning of the same; and
(ii) taking all reasonable steps to avoid the delay and all reasonable steps to
remove and address the condition(s) causing the delay.
ARTICLE XXIV
NOTICES
No notice, approval, consent or other communication authorized or
required by this Lease shall be effective unless the same shall be in writing.
Any such communication shall be deemed given when either (a) hand delivered,
with signed receipt obtained therefor, (b) sent postage prepaid by United States
registered or certified mail, return receipt requested, directed or addressed in
each case to the other party at its address set forth below, or such other
address as either party may designate by notice given from time to time in
accordance with this Article XXIV, or (c) sent by nationally recognized
overnight courier service with all charges prepaid or billed to sender, directed
or addressed in each case to the other party at its address set
-33-
forth below, or such other address as either party may designate by notice given
from time to time in accordance with this Article XXIV.
The addresses and telefax numbers for notices are:
To the Commission: Hammond Redevelopment Commission
649 Conkey Street
Hammond, Indiana 46320
Attention: Rocharda Moore-Morris
With copies to: Mayor Duane W. Dedelow, Jr.
City of Hammond
5925 Calumet Avenue
Hammond, Indiana 46320
McHie, Meyers, McHie & Ensien
53 Muenich Court
Hammond, Indiana 46320
Attention: Carol M. Green
Baker & Daniels
300 North Meridian Street
Suite 2700
Indianapolis, Indiana 46204
Attention: David L. Johnson
To the Tenant: Empress Casino Hammond Corporation
825 Empress Drive
Hammond, Indiana 46320
Attention: General Manager
With a copy to: Empress Casino Joliet Corporation
2300 Empress Avenue
Joliet, Illinois 60436
Attention: Michael W. Hansen
Ice Miller Donadio & Ryan
One American Square
Box 82001
Indianapolis, Indiana 46282-0002
Attention: Phillip L. Bayt
-34-
All such communications shall be deemed received on day after the date sent
via any of the enumerated means, except for those sent by personal delivery,
which notices shall be deemed received only when actually received by the other
party.
ARTICLE XXV
CERTIFICATES
Either party shall, without charge, at any time and from time to time
hereafter, within thirty (30) days after written request of the other, certify
by written instrument duly executed and acknowledged to any person, firm or
corporation specified in such request:
(a) As to whether this Lease has been supplemented or amended, and if so,
the substance and manner of such supplement or amendment;
(b) As to whether this Lease has been assigned, transferred or sublet, and
if so, the substance and manner of such assignment, transfer or sublet;
(c) As to the validity and force and effect of this Lease, in accordance
with its tenor as then constituted;
(d) As to the existence of any default hereunder on the part of the other
party to this Lease;
(e) As to the existence of any offsets, counterclaims or defenses thereto
on the part of such other party;
(f) As to the commencement and expiration dates of the Term; and
(g) As to any other matters as may reasonably be so requested.
Any certificate referred to in this Article XXV may be relied upon by the
party requesting it and any other person, firm or corporation to whom the same
may be exhibited or delivered, and the contents of such certificate shall be
binding on the party executing same.
-35-
ARTICLE XXVI
GENERAL
Section 26.01. Governing Law. This Lease and the performance hereof shall
be governed, interpreted, construed and enforced by and in accordance with the
laws of the State of Indiana.
Section 26.02. Partial Invalidity. If any term, covenant, condition or
provision of this Lease, or the application thereof to any person or
circumstance, shall at any time or to any extent be held invalid, illegal or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected thereby, and this Lease
shall be construed as if the invalid, illegal or unenforceable provision was not
included herein.
Section 26.03. Memorandum of Lease. The parties shall, at the request of
either of them, promptly execute and deliver duplicate originals of an
instrument, in recordable form, which will constitute a memorandum of this
Lease, setting forth a description of the Redevelopment Parcel, the Term of this
Lease and any other portions thereof.
Section 26.04. Remote Vesting. This Lease and all rights and interests
created hereby are intended to comply in all respects with applicable common or
statutory law, including the common law Rule Against Perpetuities or analogous
statutory restrictions. Therefore, any provision of this Lease that shall be
construed by a final, non-appealable judicial determination to create or permit
to arise any interest in the Redevelopment Parcel that may vest in the future in
any person shall be deemed to prohibit the creation of such interest from and
after the date that is twenty-one (21) years after the death of the survivor of
the now living lawful descendants of any of the persons who are attorneys
practicing with the firm of Baker & Daniels in Indianapolis, Indiana, as of the
date of this Lease.
Section 26.05. Interpretation. Wherever herein the singular number is
used, the same shall include the plural, and the masculine gender shall include
the feminine and neuter genders, and vice versa, as the context shall require.
The section headings used herein are for reference and convenience only and
shall not enter into the interpretation hereof. This Lease may be executed in
several counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
Section 26.06. Modification. This Lease may not be modified except by a
written instrument signed by the Tenant and the Commission and neither party
shall have additional benefits for itself or impose additional burdens on the
other party
-36-
without the mutual agreement of the parties hereto, memorialized by a writing
signed by both Tenant and the Commission.
Section 26.07. Parties. Except as herein otherwise expressly provided, the
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of the Commission and the Tenant and their respective
successors and assigns.
Section 26.08. Construction of Agreement. The Commission and the Tenant
have participated fully in the negotiation and preparation of this Lease.
Accordingly, this Lease shall not be construed more strictly against any one of
the parties hereto.
Section 26.09. Attorneys' Fees. The Tenant shall pay the costs and
attorneys' fees incurred by the Commission in obtaining possession of the
Redevelopment Parcel after default of the Tenant or upon the expiration or
earlier termination of the Term. The nonprevailing party shall pay the
reasonable costs and attorneys' fees incurred by the prevailing party in
successfully enforcing against the nonprevailing party any covenant or agreement
of this Lease.
Section 26.10. Authority. The Commission and the Tenant each represent and
warrant to the other, respectively, that (a) such party has the power and
authority to execute and deliver this Lease and to observe and perform the
respective covenants to be observed by them hereunder, (b) that the undersigned
person executing this Lease on such party's behalf has been fully empowered and
duly authorized by all necessary action of such party to execute and deliver
this Lease for and on behalf of such party, and (c) this Lease is the legal,
valid and binding obligation of such party.
Section 26.11. Standards for Consent. Where any provision of this Lease
requires the consent or approval of either party, each party agrees that it will
not unreasonably withhold, condition, or delay such consent or approval, except
as otherwise expressly provided in this Lease, and the reasonableness of each
party's determination shall be evaluated in accordance with any particular
standards governing such particular consent or approval as expressly set forth
in this Lease, or if no standards are expressly set forth, then in accordance
with all relevant facts and circumstances. Where any provision of this Lease
requires one party to do anything to the satisfaction of the other party, the
other party agrees that it will not unreasonably refuse to state its
satisfaction with such action. Any dispute over the reasonableness of either
party withholding or conditioning its consent or satisfaction shall be resolved
pursuant to Article XXVII of this Lease.
-37-
ARTICLE XXVII
DISPUTE RESOLUTION AND TERMINATION
Section 27.01. Alternative Dispute Resolution. If a dispute arises between
the Tenant and the Commission relating to this Lease, the Tenant and the
Commission, to the fullest extent permitted by applicable law, agree to use the
following procedure to resolve the dispute:
(a) A meeting shall be held promptly between the parties, attended by
individuals with decision-making authority regarding the dispute, to attempt in
good faith to negotiate a resolution of the dispute;
(b) If, within fourteen (14) days after that meeting, the parties have not
succeeded in negotiating a resolution to the dispute, they hereby agree to
submit the dispute to mediation in accordance with the Commercial Mediation
Rules of the American Arbitration Association and to bear equally the costs of
the mediation,
(1) The parties will jointly appoint a mutually acceptable mediator,
seeking assistance in this regard from the American Arbitration Association
if they are unable to agree upon this appointment within twenty-one (21)
days from the conclusion of the negotiation period; and
(2) The parties agree to participate in good faith in the mediation
and negotiation related thereto for a period of thirty (30) days. If the
parties are not successful in resolving the dispute through the mediation,
the parties agree that, to the fullest extent permitted by law, the dispute
shall be settled by binding arbitration in accordance with the procedures
set forth below.
Section 27.02. Arbitration. If any dispute cannot be settled in accordance
with the procedures set forth in Section 27.02 above, to the fullest extent
permitted by Applicable Laws, then:
(a) Any party may request arbitration of the dispute by giving the other
parties written notice that specifies the matter sought to be arbitrated and
designating a person to act as arbitrator, provided such person must be
independent and qualified as an arbitrator by the American Arbitration
Association.
(b) Within ten (10) business days after receipt of the notice described in
subparagraph (a) above, the Tenant or the Commission, as the case may be, shall
send written notice to the party requesting arbitration acknowledging the
request for arbitration and designating a second person to act as arbitrator;
-38-
(c) Within ten (10) business days after receipt of the notice described in
subparagraph (b) above of the second arbitrator, the two arbitrators, by mutual
Lease, shall designate a third arbitrator. If the time provided in subparagraph
(b) above expires before the written notice described in subparagraph (b) is
sent to the party requesting arbitration, the first arbitrator shall designate
the two additional arbitrators;
(d) Promptly after the third arbitrator's designation, but in no event
later than thirty (30) days thereafter, at a date to be set by the arbitrators,
an arbitration hearing shall be held in Indianapolis, Indiana. The Commercial
Arbitration Rules of the American Arbitration Association shall apply at the
arbitration hearing, and the three arbitrators shall allow the Commission and
the Tenant to each present, in the presence of the other party, its case,
including opening statement, evidence, witnesses, if any, and summation. The
arbitrators shall render their decision within thirty (30) days of the hearing;
and
(e) During the arbitration proceedings, all parties shall be entitled to
all discovery which is available under the Federal Rules of Civil Procedure for
the Northern District of Indiana. All parties shall have an opportunity to
present witnesses and evidence before the arbitrators. The arbitrators shall use
their best efforts to make a decision within thirty (30) days of the date of the
hearing. The decision and award, if any, of the majority of the arbitrators
shall be deemed the decision of all three arbitrators. The parties shall use
their best efforts to expedite the arbitration proceedings.
(f) The arbitrators may award costs to the prevailing party if the
arbitrator determines that the non-prevailing party failed to negotiate in good
faith the matter that is the subject of the arbitration.
(g) The arbitrators shall limit their decision to (i) the matter identified
as being in dispute and (ii) any counterclaims properly brought during the
course of the arbitration proceedings.
(h) If the award rendered by the arbitrators is an award of Two Hundred
Fifty Thousand Dollars ($250,000.00) or less or requires performance equivalent
in value to a sum which is Two Hundred Fifty Thousand Dollars ($250,000) or less
(inclusive of any costs awarded by the arbitrator) (collectively, the
"Arbitration Threshold"), said award shall be final, binding and unappealable as
to the parties with respect to matters decided by the arbitrators within the
arbitrators' jurisdiction. If the arbitrators' award is greater than the
Arbitration Threshold, said award shall be appealable by either party for a
mistake of law or fact but only to a court of competent jurisdiction.
-39-
Section 27.03. Actions During Pendency of Dispute. If a dispute arises
between the Tenant and the Commission relating to this Lease and such dispute is
being negotiated in good faith or submitted to the alternative dispute
resolution provisions of Section 27.01 or the arbitration provisions of Section
27.02, then the Commission shall not take any action to revoke requisite
licenses, permits or approvals nor, unless the activity on the part of Tenant
shall cause the Commission immediate and irreparable harm that cannot be
remedied by the payment of monetary damages, seek to enjoin the activity of the
Tenant. Further, during the pendency of any dispute which is being negotiated in
good faith or which has been submitted to the alternative dispute resolution
provisions of Section 27.01 or the arbitration provisions under Section 27.02,
each party shall continue to perform its other obligations under the Lease not
related to the dispute.
-40-
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
THE CITY OF HAMMOND,
DEPARTMENT OF REDEVELOPMENT
By: /s/ JAMES DAVIS SR.
------------------------------------
Printed Name: James Davis Sr.
--------------------------
Title: President of the City of
Hammond Redevelopment Commission
Attest:
By: /s/ RUBEN ROQUE
-----------------------------
Printed Name: Ruben Roque
-------------------
Title: Secretary of City of Hammond Redevelopment Commission
EXPRESS CASINO HAMMOND
CORPORATION, an Indiana
Corporation
By: /s/ THOMAS J. LAMBRECHT
------------------------------------
Printed Name: Thomas J. Lambrecht
--------------------------
Title: Chairman of the Board
Attest:
By: /s/ WILLIAM J. SABO
-----------------------------
Printed Name: William J. Sabo
-------------------
Title: President
-41-
EXHIBIT LIST
------------
EXHIBIT "A"
-----------
"Hammond Marina"
(Article I)
EXHIBIT "B"
-----------
"Parcel IA"
(Article I)
EXHIBIT "C"
-----------
"Parcel 2"
(Article I)
EXHIBIT "D"
-----------
"Parking Access Parcel"
(Article I)
EXHIBIT "E"
-----------
Parking Parcels
(Article I)
EXHIBIT "F"
-----------
"Perimeter Road Parcel"
(Article I)
-42-
EXHIBIT B
93486DA7.DOC Page 1 of 1
Hammond Marina 9EAST-C
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 1A
version 1
15 MAY 96
As part of the Northwest Quarter of Section 6, Township 37 North, Range 9 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,209.68 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West; thence South
41 degrees 13 minutes 34 seconds East 61.96 feet; thence South 41 degrees 13
minutes 34 seconds East 90.30 feet to the point of curvature of a curve to the
left, said point of curvature being South 48 degrees 46 minutes 26 seconds West
2,814.93 feet from the radius point of said curve; thence southeasterly 229.77
feet along said curve to a point being South 44 degrees 05 minutes 50 seconds
West 2,814.93 feet from the radius point of said curve; thence North 35 degrees
17 minutes 10 second East 17.84 feet to the POINT OF BEGINNING of this
description; thence North 35 degrees 17 minutes 10 seconds East 813.45 feet;
thence North 79 degrees 22 minutes 58 seconds East 71.38 feet; thence South 54
degrees 36 minutes 55 seconds East 100.48 feet; thence South 35 degrees 23
minutes 05 seconds West 90.00 feet; thence North 54 degrees 36 minutes 55
seconds West 110.00 feet; thence South 35 degrees 17 minutes 10 seconds West
780.38 feet; thence North 46 degrees 40 minutes 28 seconds West 40.40 feet to
the POINT OF BEGINNING containing 0.995 acres, more or less.
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC.
4165 Millersville Road
INDIANAPOLIS INDIANA
(317) 547-5580 (C) Copyright 1996 46205-2998
DATE: May 15, 1996
DRAWN BY: CMM
JOB NO. 94-290
SHEET NO. 2 of 2
EXHIBIT C
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 2
version 1
29 AUG 94
A part of the Northwest Quarter of Section 6, Township 37 North, Range 9 West,
located in North Township, Lake County, Indiana, being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,209.68 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West; thence South
41 degrees 13 minutes 34 seconds East 61.96 feet; thence South 41 degrees 13
minutes 34 seconds East 90.30 feet to the point of curvature of a curve to the
left, said point of curvature being South 48 degrees 46 minutes 26 seconds West
2,814.93 feet from the radius point of said curve; thence southeasterly 229.76
feet along said curve to a point being South 44 degrees 05 minutes 50 seconds
West 2,814.93 feet from the radius point of said curve; thence North 35 degrees
17 minutes 10 seconds East 831.29 feet; thence North 79 degrees 22 minutes 58
seconds East 71.38 feet; thence South 54 degrees 36 minutes 55 seconds East
100.48 feet to the POINT OF BEGINNING of this description; thence continuing
South 54 degrees 36 minutes 55 seconds East 146.67 feet; thence South 35 degrees
16 minutes 41 seconds West 523.46 feet; thence North 54 degrees 35 minutes 11
seconds West 236.35 feet; thence South 35 degrees 15 minutes 53 seconds West
349.92 feet; thence North 46 degrees 40 minutes 28 seconds West 20.88 feet;
thence North 35 degrees 17 minutes 10 seconds East 780.38 feet; thence South 54
degrees 36 minutes 55 seconds East 110.00 feet; thence North 35 degrees 23
minutes 05 seconds East 90.00 feet to the POINT OF BEGINNING, containing 3.024
acres, more or less.
Exhibit A (page 1 of 3)
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
EXHIBIT
AMERICAN CONSULTING ENGINEERS, INC.
Exhibit A (page 2 of 3)
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
EXHIBIT
AMERICAN CONSULTING ENGINEERS, INC.
Exhibit A (page 3 of 3)
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
EXHIBIT
AMERICAN CONSULTING ENGINEERS, INC.
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC.
4165 Millersville Road
INDIANAPOLIS INDIANA
(317) 547-5580 (C) Copyright 1996 46205-2998
DATE: May 15, 1996
DRAWN BY: CMM
JOB NO. 94-290
SHEET NO. 2 of 2
EXHIBIT D
LAND DESCRIPTION
Redevelopment Commission Sublease
Ingress & Egress Access to Parking
version 1
28 AUG 96
A part of the Northeast Quarter of Section 1, Township 37 North, Range 10 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right, said
point of curvature being North 36 degrees 00 minutes 00 seconds West 326.48 feet
from the radius point of said curve; thence northeasterly and easterly 176.71
feet along said curve to a point being North 04 degrees 59 minutes 19 seconds
West 326.48 feet from the radius point of said curve and to the POINT OF
BEGINNING of this description; thence North 48 degrees 49 minutes 21 seconds
East 35.00 feet; thence South 41 degrees 10 minutes 39 seconds East 625.56 feet;
thence South 41 degrees 14 minutes 09 seconds East 34.87 feet to a point on a
non-tangent curve concave to the northeast (said curve hereinafter referred to
as "Curve #1"), said point of curvature being South 48 degrees 38 minutes 51
seconds West 5,682.15 feet from the radius point of said curve; thence
southeasterly 150.03 feet along Curve #1 to a point being South 47 degrees 08
minutes 05 seconds West 5,682.15 feet from the radius point of Curve #1; thence
North 48 degrees 45 minutes 56 seconds East 96.78 feet; thence South 41 degrees
14 minutes 04 seconds East 100.00 feet; thence South 48 degrees 45 minutes 56
seconds West 128.09 feet to a point on a non-tangent curve concave to the
northeast (said curve is concentric with Curve #1), said point being South 46
degrees 08 minutes 30 seconds West 5,717.15 feet from the radius point of said
curve; thence northwesterly 250.02 feet along said curve to a point being South
48 degrees 38 minutes 51 seconds West 5,717.15 feet from the radius point of
said curve; thence North 41 degrees 14 minutes 09 seconds West 34.96 feet;
thence North 41 degrees 10 minutes 39 seconds West 625.58 feet to the POINT OF
BEGINNING containing 0.950 acres, more or less.
[MAP APPEARS HERE]
LAND DESCRIPTION
Redevelopment Commission Sublease
Ingress & Egress Access to Parking
version 1
28 MAY 96
A part of the Northeast Quarter of Section 1, Township 37 North, Range 10 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right, said
point of curvature being North 36 degrees 00 minutes 00 seconds West 326.48 feet
from the radius point of said curve; thence northeasterly and easterly 176.71
feet along said curve to a point being North 04 degrees 59 minutes 19 seconds
West 326.48 feet from the radius point of said curve and to the POINT OF
BEGINNING of this description; thence North 48 degrees 49 minutes 21 seconds
East 35.00 feet; thence South 41 degrees 10 minutes 39 seconds East 625.56 feet;
thence South 41 degrees 14 minutes 09 seconds East 34.87 feet to a point on a
non-tangent curve concave to the northeast (said curve hereinafter referred to
as "Curve #1"), said point of curvature being South 48 degrees 38 minutes 51
seconds West 5,682.15 feet from the radius point of said curve; thence
southeasterly 150.03 feet along Curve #1 to a point being South 47 degrees 08
minutes 05 seconds West 5,682.15 feet from the radius point of Curve #1; thence
North 48 degrees 45 minutes 56 seconds East 96.78 feet; thence South 41 degrees
14 minutes 04 seconds East 100.00 feet; thence South 48 degrees 45 minutes 56
seconds West 128.09 feet to a point on a non-tangent curve concave to the
northeast (said curve is concentric with Curve #1), said point being South 46
degrees 08 minutes 30 seconds West 5,717.15 feet from the radius point of said
curve; thence northwesterly 250.02 feet along said curve to a point being South
48 degrees 38 minutes 51 seconds West 5,717.15 feet from the radius point of
said curve; thence North 41 degrees 14 minutes 09 seconds West 34.96 feet;
thence North 41 degrees 10 minutes 39 seconds West 625.58 feet to the POINT OF
BEGINNING containing 0.950 acres, more or less.
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC.
4165 Millersville Road
INDIANAPOLIS INDIANA
(317) 547-5580 (C) Copyright 1995 46205-2998
- --------------------------------------------------------------------------------
DATE: May 28, 1995
DRAWN BY: CMM
JOB NO. 94-290
SHEET NO. 1 of 3
DWC FILE: 93\484\83486083 EDIT DATE: 05/28/96 DOSC FILE: 83486083.DOC
PLOT SCALE: 1" = 100' EDITED BY: CWW
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC. DATE: MAY 28, 1996 SHEET NO.
4165 Millersville Road DRAWN BY: CMM 2
INDIANAPOLIS INDIANA JOB NO. 94-290 of
(317) 547-5580 (C) Copyright 1996 46205-2998 3
- --------------------------------------------------------------------------------
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC.
4165 Millersville Road
INDIANAPOLIS INDIANA
(317) 547-5580 (C) Copyright 1996 46205-2998
DATE: May 28, 1996
DRAWN BY: CMM
JOB NO. 94-290
SHEET NO. 3 of 3
EXHIBIT E
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 4
version 2
28 MAY 96
A part of the Northeast Quarter of Section 1, Township 37 North, Range 10 West
and a part of Section 36, Township 38 North, Range 10 West located in North
Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 5.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.75 feet to the point of curvature of a curve to he right, said
point of curvature being North 36 degrees 00 minutes 00 seconds West 326.48 feet
from the radius point of said curve; thence northeasterly and easterly 118.22
feet along said curve to the southwestern boundary of the 21.255 acre tract of
land described in the QUITCLAIM DEED recorded as instrument #910181 on April 17,
1991 in the office of the Recorder of Lake County, Indiana, said point being
North 15 degrees 15 minutes 10 seconds West 326.48 feet from the radius point of
said curve, the next seven (7) courses are along the boundary of said 21.255
acre tract of land; 1) thence North 41 degrees 15 minutes 08 seconds West
1,700.29 feet to the POINT OF BEGINNING of this description; 2) thence North 41
degrees 15 minutes 08 seconds West 1,539.62 feet to the point of curvature of a
curve to the right, said point of curvature being South 48 degrees 44 minutes 52
seconds West 24,828.52 feet from the radius point of said curve; 3) thence
northwesterly 281.79 feet along said curve to its point of tangency, said point
of tangency being South of 49 degrees 23 minutes 53 seconds West 24,828.52 feet
from the radius point of said curve; 4) thence North 40 degrees 36 minutes 07
seconds West 1,474.75 feet to the Indiana/Illinois State Line; 5) thence North
00 degrees 52 minutes 04 seconds West 138.52 feet along the Indiana/Illinois
State Line; 6) thence South 48 degrees 50 minutes 29 seconds East 279.19 feet;
7) thence South 41 degrees 14 minutes 04 seconds East 2,051.13 feet to the
northwestern corner of the tract of land described in the QUITCLAIM DEED
recorded in Deed Record 1219, page 31 on November 5, 1962 in said Recorder's
office, said corner bing on "Eggers' Fence Line"; thence South 87 degrees 40
minutes 04 seconds East 11.27 feet along the northern boundary of said tract of
land which is also along "Eggers' Fence Line"; thence South 41 degrees 12
minutes 09 seconds East 139.21 feet; thence
South 40 degrees 14 minutes 07 seconds East 154.35 feet to a point on a non-
tangent curve concave to the southwest, said point being North 51 degrees 42
minutes 18 seconds East 1,514.88 feet from the radius point of said curve;
thence southeasterly 141.95 feet along said curve to a point being North 57
degrees 04 minutes 25 seconds East 1,514.88 feet from the radius point of said
curve; thence South 30 degrees 59 minutes 10 seconds East 154.35 feet; thence
South 30 degrees 01 minute 09 seconds East 186.88 feet; thence South 30 degrees
59 minutes 24 seconds East 155.62 feet to a point on a non-tangent curve concave
to the northeast, said point being South 57 degrees 04 minutes 25 seconds West
1,539.88 feet from the radius point of said curve; thence southeasterly 143.63
feet to a point being South 51 degrees 43 minutes 47 seconds West 1,539.88 feet
from the radius point of said curve; thence South 48 degrees 44 minutes 52
seconds West 29.89 feet to the POINT OF BEGINNING containing 9.760 acres, more
or less.
ALSO, a part of the Northeast Quarter of Section 1, Township 37 North, Range 10
West and a part of Section 36, Township 38 North, Range 10 West located in North
Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right (said
curve hereinafter referred to as "Curve #1"), said point of curvature being
North 36 degrees 00 minutes 00 seconds West 326.48 feet from the radius point of
Curve #1; thence northeasterly and easterly 176.71 feet along Curve #1 to a
point being North 04 degrees 59 minutes 19 seconds West 326.48 feet from the
radius point of Curve #1 and to the POINT OF BEGINNING of this description;
thence North 41 degrees 10 minutes 39 seconds West 1,372.17 feet to the point of
curvature of a curve to the right, said point of curvature being South 48
degrees 49 minutes 21 seconds West 474.78 feet from the radius point of said
curve; thence northwesterly 58.94 feet along said curve to its point of
tangency, said point of tangency being South 55 degrees 56 minutes 06 seconds
West 474.78 feet from the radius point of said curve; thence North 34 degrees 03
minutes 54 seconds West 45.58 feet to point of curvature of curve to the left,
said point of curvature being North 55 degrees 56 minutes 06 seconds East 729.28
feet from the radius point of said curve; thence northwesterly 90.62 feet along
said curve to its point of tangency, said point of tangency being North 48
degrees 48 minutes 55 seconds East 729.28 feet from the radius point of said
curve; thence North 41 degrees 11 minutes 05 seconds West 8.90 feet; thence
North 40 degrees 12 minutes 29 seconds West 154.34 feet to a point on a non-
tangent curve concave to the northeast, said point being South 51 degrees 45
minutes 03 seconds West 1,500.05 feet from the radius point of said curve;
thence northwesterly 138.44 feet along said curve to a point being South 57
degrees 02 minutes 18 seconds West 1,500.05 from the radius point of said curve;
thence North 31 degrees 00 minutes 10 seconds West 154.34 feet; thence North 30
degrees 01 minute 34 seconds West 170.82 feet to the point of curvature of curve
to the right, said point of curvature being South 59 degrees 58 minutes 26
seconds West 1,420.19 feet from the radius point of said curve; thence
northwesterly and northerly 273.83 feet along said curve to its point of
tangency, said point of tangency being South 71 degrees 01 minute 16 seconds
West 1,420.19 feet from the radius point of said curve; thence North 18 degrees
58 minutes 44 seconds West 56.31 feet to a point on the northwesterly extension
of the southwestern boundary of the 16.039 acre tract of land describe in the
WARRANTY DEED recorded in Deed Record 1218, page 592 on November 9, 1962 in the
office of the Recorder of Lake County, Indiana; thence South 41 degrees 14
minutes 04 seconds East 2,501.08 feet along the northwesterly extension of the
southwestern boundary of said 16.039 acre tract of land and along the
southwestern boundary of said 16,039 acre tract of land to a point being North
48 degrees 49 minutes 21 seconds East of the point of beginning; thence South
48 degrees 49 minutes 21 seconds West 193.47 feet to the POINT OF BEGINNING
containing 9.452 acres, more or less.
EXCEPTING AND EXCLUDING THE FOLLOWING FROM THE ABOVE-DESCRIBED PARCELS:
A parcel of real estate that is two hundred (200) feet wide (measured from east
to west) and fifty (50) feet in depth (measured from north to south) and located
in the northeasternmost corner of the above-described parcels.
EXHIBIT F
LAND DESCRIPTION
Redevelopment Commission Sublease
Water Department Perimeter Road
version 2
24 MAY 96
A 32.00 foot-wide strip of land being a part of the Northwest Quarter of Section
6, Township 37 North, Range 9 West located in North Township, Lake County,
Indiana the centerline of which is described as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,091.63 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West to a point on
a non-tangent curve concave to the northeast, said point being South 38 degrees
59 minutes 01 second West 1,637.02 feet from the radius point of said curve;
thence southeasterly 62.23 feet along said curve to its point of tangency, said
point of tangency being South 36 degrees 48 minutes 21 seconds West 1,637.02
feet from the radius point of said curve; thence South 53 degrees 11 minutes 39
seconds East 650.47 feet to the point of curvature of a curve to the left, said
point of curvature being South 36 degrees 48 minutes 21 seconds West 2,864.79
feet from the radius point of said curve; thence southeasterly 84.09 feet along
said curve to its point of tangency, said point of tangency being South 35
degrees 07 minutes 27 seconds West 2,864.79 feet from the radius point of said
curve; thence South 54 degrees 52 minutes 33 seconds East 325.80 feet to the
point of curvature of a curve to the left, said point of curvature being South
35 degrees 07 minutes 27 seconds West 55.00 feet from the radius point of said
curve; thence southeasterly, easterly, northeasterly, northerly, and
northwesterly 142.07 feet along said curve to its point of tangency, said point
of tangency being North 67 degrees 07 minutes 27 seconds East 55.00 feet from
the radius point of said curve; thence North 22 degrees 52 minutes 33 seconds
West 53.74 feet to the point of curvature of a curve to the right, said point of
curvature being South 67 degrees 07 minutes 27 seconds West 55.00 feet from the
radius point of said curve; thence northwesterly, northerly, and northeasterly
56.62 feet along said curve to its point of tangency, said point of tangency
being North 53 degrees 53 minutes 40 seconds West 55.00 feet from the radius
point of said curve; thence North 36 degrees 06 minutes 20 seconds East 15.67
feet to the POINT OF BEGINNING of this centerline description; thence North 36
degrees 06 minutes 20 seconds East 254.64 feet to the point of curvature of a
curve left, said point of curvature being South 53 degrees 53 minutes 40 seconds
East 40.00 feet from the radius point of said curve; thence northeasterly,
northerly, and northwesterly 63.49 feet along said curve to its point of
tangency, said point of tangency being North 35 degrees 09 minutes 56 seconds
East 40.00 feet from the radius point of said curve; thence North 54 degrees 50
minutes 04 seconds West 117.95 feet to the point of curvature of a curve to the
right, said point of curvature being South 35 degrees 09 minutes 56 seconds West
40.00 feet from the radius point of said curve; thence northwesterly, northerly,
and northeasterly 60.84 feet along said curve to its point of tangency, said
point of tangency being North 57 degrees 40 minutes 52 seconds West 40.00 feet
from the radius point of said curve; thence North 32 degrees 19 minutes 08
seconds East 330.68 feet to the point of curvature of a curve to the left, said
point of curvature being South 57 degrees 40 minutes 52 seconds East 40.00 feet
from the radius point of said curve; thence northeasterly, northerly, and
northwesterly 60.76 feet along said curve to its point of tangency, said point
of tangency being North 35 degrees 17 minutes 10 seconds East 40.00 feet from
the radius point of said curve; thence North 54 degrees 42 minutes 50 seconds
West 227.88 feet to the TERMINUS of this centerline description. Containing
0.820 acres, more or less.
CURVE #1 CURVE #2 CURVE #3
-------- -------- --------
/\ = 02/o/10'41" /\ = 01/o/40'54" /\ = 148/o/00'00"
R = 1637.02' R = 2864.79' R = 55.00'
T = 31.12' T = 42.05' T = 191.81'
L = 62.23' L = 84.09' L = 142.07'
C = S52/o/06'19"E-62.22' C = S54/o/02'06"E-84.08' C = N51/o/07'27"E-105.74'
CURVE #4 CURVE #5 CURVE #6
-------- -------- --------
/\ = 58/o/58'53" /\ = 90/o/56'23" /\ = 87/o/09'12"
R = 55.00' R = 40.00' R = 40.00'
T = 31.11' T = 40.66' T = 38.06'
L = 56.62' L = 63.49' L = 60.84'
C = N06/o/36'53"E-54.15' C = N09/o/21'52"W-57.03' C = N11/o/15'28"W-55.15'
CURVE #7
--------
/\ = 87/o/01'58"
R = 40.00'
T = 37.98'
L = 60.76'
C = N11/o/11'51"W-55.09'
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC.
4165 Millersville Road
INDIANAPOLIS INDIANA
(317) 547-5580 (C) Copyright 1996 46205-2998
DATE: May 28, 1996
DRAWN BY: CMM
JOB NO. 94-290
SHEET NO. 1 of 3
[MAP APPEARS HERE]
- --------------------------------------------------------------------------------
AMERICAN CONSULTING ENGINEERS, INC. DATE: MAY 28, 1996 SHEET NO.
4165 Millersville Road DRAWN BY: CMM 2
INDIANAPOLIS INDIANA JOB NO. 94-290 of
(317) 547-5580 (C) Copyright 1996 46205-2998 3
- --------------------------------------------------------------------------------