98-1202 GVC Ground Lease GROUND LEASE AND OPTION AGREEMENT
GROUND LEASE AND OPTION AGREEMENT ("Lease") made and entered
into this 2nd day of December , 1998, but effective for all
purposes as of the 1st day of January, 1995, between the City of
Elgin, Illinois, an Illinois municipal corporation (hereinafter
referred to as the "Landlord" ) , and Elgin Riverboat Resort, an
Illinois joint venture consisting of Nevada Landing Partnership and
RBG, L. P. , as its joint venture partners (hereinafter referred to
as the "Tenant") .
RECITALS
A. Landlord and Tenant have heretofore entered into a
certain Development Agreement dated as of June 24, 1992 ( the
"Original Development Agreement") contemplating the establishment
of a riverboat gaming facility along the Fox River on certain
property owned in fee simple by the Landlord, which is legally
described therein. The Original Development Agreement has
heretofore been amended by (i) a certain Amendment to Development
Agreement dated as of June 23, 1993, (ii) a certain Second
Amendment to Development Agreement and Ground Lease Agreement dated
as of January 20, 1994, and (iii) a certain Third Amendment to
Development Agreement and Ground Lease dated as of June 9, 1994 .
The Original Development Agreement as so amended is referred to
herein as the "Development Agreement. "
B. Pursuant to the provisions of the Development Agreement,
contemporaneously herewith Landlord and Tenant have entered into
that certain Amended and Restated Ground Lease Agreement effective
as of January 20, 1994 (the "Pavilion Lease") demising unto Tenant
certain real estate as described therein (the "Site") , which
governs certain aspects of Tenant' s rights and obligations vis a
vis Landlord with respect to Tenant' s construction and operation
upon the Site of entertainment and support facilities for Tenant' s
adjacent Riverboat Gambling Operation (hereinafter described) .
C. Pursuant to a temporary construction access agreement in
favor of Tenant, Tenant has constructed a riverboat (the
"Riverboat") on certain properties adjacent to the Site which are
described in the Development Agreement as the "East Parcel" and the
"West Parcel" and are legally described on Exhibits A and B,
respectively, both attached hereto and made a part hereof. Upon
completion of the Riverboat construction, Tenant relocated the
Riverboat to a dockside location adjacent to the Site and has
commenced its Riverboat Gambling operation.
D. Pursuant to the Development Agreement, Tenant has leased
and improved the East Parcel and Tenant operates the East Parcel as
a public parking lot. Landlord desires to hereby formally document
said lease agreement and to grant Tenant certain rights to acquire
the East Parcel, all as more fully hereinafter set forth.
E. Pursuant to the Development Agreement, Tenant has
restored and improved the West Parcel . Landlord desires to hereby
formally document its agreements with Tenant as to such restoration
and improvement and to grant Tenant certain rights to acquire the
West Parcel, all as more fully hereinafter set forth.
DEFINITIONS
For the purposes of this Lease, the following terms shall have
the following definitions :
1 . "Demised Premises" shall mean the East Parcel and all
easements, rights, rights-of-way, and licenses appurtenant thereto;
but shall not include Tenant' s Trade Fixtures and shall not include
Tenant' s Riverboat (which excluded property shall remain Tenant' s
own property) .
2 . "Development Agreement" shall mean that certain agreement
bearing said title entered into between Landlord and Tenant on
June 24th, 1992 (as expressly authorized by resolution passed on
June 24th, 1992) , as amended by (i) a certain Amendment to
Development Agreement dated as of June 23, 1993 , (ii) a certain
Second Amendment to Development Agreement and Ground Lease
Agreement dated as of January 20, 1994 and (iii) a certain Third
Amendment to Development Agreement and Ground Lease dated as of
June 9, 1994 .
3 . "East Parcel" shall mean that certain parcel of real
property identified as such in the Development Agreement and
legally described in Exhibit A attached hereto, but shall not
include the Improvements thereon or Tenant' s trade fixtures
therein.
4 . "Improvements" shall mean all buildings, structures, and
other improvements in conjunction with the parking lot constructed
upon the Demised Premises by Tenant and any restoration, addition
to, or replacement thereof, but excluding therefrom Tenant' s Trade
Fixtures .
5 . "Riverboat Gambling Operation" shall mean the conduct of
a business engaged in the operation of one boat which is located in
or upon. the Fox River and upon which gambling operations take
place, all as contemplated and permitted pursuant to the Illinois
Riverboat Gambling Act, together with the operation upon the Site
of entertainment facilities collateral thereto, such as retail
shops, movie theaters, restaurants, bars or lounges for the service
of alcoholic beverages and the like.
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6 . "Site" shall have the meaning set forth in the foregoing
Recitals .
7 . "Tenant' s Trade Fixtures" shall mean all personal
property owned, used or installed by Tenant upon the Demised
Premises and/or used in connection with the Improvements thereon,
including, without limitation:
(a) Cash registers;
(b) Office furniture, including cabinets, chairs,
. desks, files and safes;
(c) Office machines and equipment;
(d) Maintenance equipment and tools;
(e) Walls and partitions extending from floor to
ceiling but not an integral part of slab at top and
bottom;
(f) Air compressors, alarm systems, blowers, pumps,
refrigeration units, wall clocks and water coolers;
(g) Signs and lighting;
and any and all renewals, replacements of, additions to, and
substitutions for the above-enumerated items.
8 . "West Parcel" shall mean that certain parcel of real
property identified as such in the Development Agreement and
described in Exhibit B attached hereto and made a part hereof .
AGREEMENT
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. Demised Premises and Term. Landlord, in consideration of
the rents hereinafter reserved and the terms, covenants,
conditions, and agreements set forth in this Lease to be kept and
performed by Tenant, does hereby, demise and let unto Tenant, and
Tenant does hereby lease, hire and take from Landlord, the Demised
Premises;
TO HAVE AND TO HOLD the Demised Premises unto Tenant, its
permitted successors and assigns, upon and subject to all of the
terms, covenants, conditions, conditional limitations, and
agreement herein contained for a term of years commencing as of
January 1, 1995 (the "Commencement Date") and ending on December
31, 1999 (the "Basic Term") , or until said term is sooner
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terminated or extended pursuant to any of the conditional
limitations or other provisions of this Lease .
2 . Rental. Tenant shall pay no rent hereunder until the
Commencement Date, at which time Landlord hereby agrees to accept
as rent and Tenant shall pay hereunder rent of One Dollar ($1 . 00)
per annum ("Basic Rent") . Landlord hereby acknowledges receipt of
the Basic Rent in advance for the entire Basic Term.
3 . Use of Demised Premises.
A. Tenant shall use and occupy the Demised Premises
and the Improvements thereon to operate a public
parking facility available for use, on a
nondiscriminatory basis, by all members of the
public (the "Parking Lot" ) . Tenant will not use or
keep or allow the Demises Premises or any portion
thereof or any buildings or other improvements
thereon or any appurtenances thereto, to be used or
occupied for any unlawful purpose and will not
suffer any act to be done or any condition to exist
which constitutes a nuisance, public or private.
Tenant shall cause any such use or occupancy for
any unlawful purpose and any such nuisance to
terminate as soon as practicable but in any event
shall commence to cure the same within twenty (20)
days of notice thereof from Landlord and shall
thereafter diligently prosecute the same to
completion. Notwithstanding anything contained
herein to the contrary, Landlord acknowledges and
agrees that the permitted use of the Demised
Premises and Improvements thereon as and for the
Parking Lot shall not inherently constitute a
nuisance, public or private.
B. Operations/Hours. Operating policies with respect
to the Parking Lot shall be determined solely by
Tenant, including, without limitation, hours of
operation, provided, however, (i) in no event shall
any person be charged for the normal use of the lot
for vehicle parking; and (ii) the Parking Lot shall
maintain minimum hours of operation between 7 : 00
a.m. and 6: 00 p.m. of each day (subject to closure
for repair and maintenance purposes) , but may, at
Tenant's discretion, be open at other hours as
well .
4 . Construction of and Title to Improvements and Trade
Fixtures.
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A. Tenant has heretofore completed construction of the
Parking Lot upon the Demised Premises including
asphalt re-surfacing and striping, landscaping and
the installation of lighting and railings .
Landlord hereby acknowledges that all such
Improvements have been constructed by Tenant in a
good and workmanlike manner and in full and
complete compliance with all applicable laws and
ordinances . Landlord also hereby acknowledges that
Tenant has fully performed and satisfied its
obligations with respect to (i) the South Grove
Street Project pursuant to and as delineated in
Article I of the Third Amendment to Development
Agreement and Ground Lease dated as of June 9, 1994
(the "Third Amendment") , (ii) the restoration of
Lake Street pursuant to Section 2 . 03 of the Third
Amendment, and (iii) the restoration and
improvement of the West Parcel pursuant to and as
delineated in Section 3 . 02 of ::he Third Amendment.
B. Title to Tenant' s Trade Fixtures are and shall be
the sole and exclusive property of Tenant during
the term of this Lease and shall remain the sole
and exclusive property of Tenant after the
expiration or termination of this Lease, subject to
the forfeiture remedies as more fully set forth
hereinafter. Landlord acknowledges and understands
that it shall have no right, title or interest in
or to Tenant' s Trade Fixtures either during the
term of this Lease or thereafter (except as
hereinafter provided) .
C. Landlord acknowledges and agrees that Tenant shall
have the right to encumber, sell, or hypothecate
Tenant' s Trade Fixtures, remove them from the
Demised Premises, or to otherwise deal with all or
any portion of such Tenant' s Trade Fixtures, at
Tenant' s sole discretion. Upon ten (10) days'
prior written request to Landlord, Landlord shall
prepare and deliver to Tenant a certificate in
recordable form stating that Landlord has no
interest or right in or to Tenant' s Trade Fixtures,
as well as any other or further document which
Tenant may reasonably request from Landlord.
D. During the term of the Lease and while Tenant
lawfully occupies the Demised Premises, all
Improvements presently on the Demised Premises and
all Improvements hereafter constructed on the
Demised Premises are and shall be the property of
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Tenant or any party taking title thereto through
Tenant by means of mesne conveyance or foreclosure,
during, and only during, the continuance of the
term of this Lease and no longer. At all times
during the term of this Lease, the Improvements
which are owned by Tenant shall not be conveyed,
transferred, or assigned unless such conveyance,
transfer, or assignment shall be to a person,
corporation or other entity to whom this Lease is
being transferred or assigned simultaneously
therewith in compliance with the provisions of
Section 14 hereof (Assignment; Subletting) , and at
all such times the holder of the leasehold interest
of Tenant under this Lease shall be the owner of
said Improvements . Any attempted conveyance,
transfer, or assignment of the Improvements,
whether voluntarily or by operation of law or
otherwise, to any person, corporation, or other
entity shall be void and of no effect whatever
unless such conveyance, transfer, or assignment
shall be to a person, corporation, or other entity
to whom this Lease is being transferred or assigned
simultaneously therewith in compliance with the
provisions of Section 14 . Similarly, so long as
the Improvements or any part thereof shall remain
on the Demised Premises, any attempted transfer or
assignment of the leasehold interest of Tenant
under this Lease shall be void and of no effect
whatever unless such transfer or assignment shall
be to a person, corporation, or other entity to
whom the Improvements are being conveyed,
transferred, or assigned simultaneously therewith.
Upon any termination of this Lease, whether by
reason of the normal expiration of the term, or by
reason of the provisions of Section 12 (Casualty) ,
or Section 16 (Default by Tenant) hereof, or by
reason of any other cause whatsoever, if the
Improvements or any part thereof shall then be on
the Demised Premises, all of the Tenant' s right,
title and interest therein or of any entity or
person acquiring title thereto through Tenant shall
cease and terminate, and title to the Improvements
shall vest in Landlord, and the Improvements or the
part thereof then within the Demised Premises shall
be surrendered by Tenant to Landlord as provided in
Section 30 hereof (Surrender) . No further deed or
other instrument shall be necessary to confirm the
vesting in Landlord of title to the Improvements.
However, upon any termination of this Lease,
Tenant, upon request of Landlord, shall execute,
acknowledge, and deliver to Landlord a deed
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confirming that all of Tenant' s right, title, and
interest in or to the Improvements has expired, and
that title to the Improvements has vested in
Landlord. Tenant shall pay the cost of recording
said deed but not any transfer taxes in connection
therewith.
5 . INTENTIONALLY DELETED.
6 . Taxes.
A. Tenant will, at Tenant' s own cost and expense,
bear, pay and discharge prior to delinquency, all
real estate taxes and special assessments or other
taxes which shall be levied, charged and assessed
upon the Demised Premises and the Improvements
thereon during the term hereof .
B. Tenant reserves the right to contest the validity
of any assessed valuation of the Land or
Improvements or tax with respect thereto and to pay
any taxes under protest. Landlord shall execute
and deliver to Tenant whatever documents may be
necessary or proper to permit tenant to so contest
any such imposition or which may be necessary to
secure payment of any refund which may result from
any such proceedings .
C. Tenant shall pay all interest and penalties imposed
upon the late payment of any obligation under this
Section.
7 . Repairs. Subject to the provisions of Section 12 and 15
below, Tenant shall at all times during the term of this Lease, at
Tenant' s own cost and expense, keep the Demised Premises and the
Improvement thereon, and all sidewalks, curbs, vaults and vault
spaces adjoining the Demised Premises, and all appurtenances to the
Demised Premises, in good order, condition, and repair, ordinary
wear and tear expected, and in such condition as may be required by
law and by the terms of the insurance policies furnished pursuant
to this Lease, whether or not such repair shall be interior or
exterior, and whether or not such repair shall be of a structural
nature, and whether or not the same can be said to be within the
present contemplation of the parties hereto.
8 . Compliance with Law.
A. Tenant shall at all times during the term of the
Lease, at Tenant' s own cost and expense, perform
and comply with all laws, rules, orders,
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ordinances, regulations, and requirements now or
hereafter enhanced or promulgated, of every
governmental authority and municipality having
jurisdiction over the Demised Premises, and of any
agency thereof, relating to the Demised Premises,
or the Improvements now or hereafter located
thereon, or the facilities or equipment therein, or
the streets, sidewalks, vault, vault spaces, curbs,
and gutters adjoining the Demised Premises, or the
appurtenances to the Demised Premises, or the
franchises and privileges connected therewith.
B. If during the term of this Lease, Landlord enacts
any new zoning ordinance or regulation or amends or
modifies any existing zoning ordinance or
regulation such that additional requirements would
be imposed upon the conduct of the parking lot and
other related uses of the Demised Premises as are
contemplated by Tenant in conjunction with the
Riverboat • Gambling Operation, which, absent
compliance therewith, would prohibit such
operations, it is agreed that the burden of such
additional zoning requirements shall not apply to
the Demised Premises .
C. If during the term of this *Lease, Landlord enacts
any new ordinances, codes, or regulations or amends
or modifies any existing ordinances, codes or
regulations in any manner such that additional fees
or taxing requirements would be imposed on the
Demised Premises or on the business operations
being conducted on the Demised Premises or on the
Riverboat Gambling Operation itself, the burden of
such additional fees or taxing requirements shall
not apply to the Demised Premises nor to the
business operations conducted on the Demised
Premises nor to the Riverboat Gambling Operation
unless such burden is the result of legal
requirements of general applicability throughout
the City of Elgin. Laws purporting to be of such
general applicability but which upon practical
application would only impact the Demised Premises
or the business operations conducted on the Demised
Premises or the Riverboat Gambling Operation shall
not apply to the Demised Premises nor to the
business operations conducted on the Demised
Premises nor to the Riverboat Gambling Operation.
D. The parties understand and agree that nothing
herein shall be construed to prohibit the City of
Elgin from increasing sales taxes and other taxes,
charges and fees which are of general applicability
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throughout the city with the exception that fees
and taxes prohibited by 230 ILCS 10/21, as amended,
shall not be applicable to the Demises Premises and
the business operations conducted thereon.
9 . Alterations. Tenant shall .have the right, at Tenant' s
expense and at Tenant' s sole discretion, from time to time during
the term of this Lease to make any alteration, addition, or
modification to the Demised Premises or the Improvements thereon,
provided that, after said alterations, additions, or modifications,
the Demised Premises shall be utilized for a use of the Demised
Premises permitted herein; and provided further, that if any such
alteration or modification shall involve the removal or material
demolition of the Improvements, then Tenant shall obtain Landlord' s
prior written consent thereto, which consent shall not be
unreasonably withheld. It is expressly understood that Landlord' s
consent may be conditioned upon the furnishing by Tenant of waivers
of mechanic' s and materialmen' s liens from all persons furnishing
materials or labor.
10 . Mechanic's Liens. During the term of this Lease, Tenant
shall not permit any mechanics' , materialmans' or other such lien
to be placed against the Demised Premises by reason of any work,
labor, service, or material performed or furnished for or to Tenant
or anyone occupying the Demised Premises through or under Tenant;
provided, however, that if any such lien is placed against the
Demised Premises, Tenant may contest such lien by appropriate
proceedings if Tenant shall have delivered to Landlord a surety
bond, reasonably acceptable to Landlord, in form, content and
amount protecting Landlord against the enforcement of such lien or,
alternatively, shall have provided Landlord with title insurance
protection against the enforcement of such lien. Tenant shall at
all times indemnify Landlord against and hold it harmless with
respect to any loss, cost, fee, charge, expense, lien, or liability
of any nature occurring or accruing by virtue of any such work,
labor, service, or material performed or furnished for or to the
Tenant .
11 . Insurance.
A. Tenant will at all times during the term of this
Lease maintain insurance on the Demises Premises of
the following character:
(i) insurance against loss or damage by fire and
other risks and perils from time to time
included under standard extended coverage
endorsements in an amount equal to not less
than eighty percent (80%) of the replacement
value of the Improvements (exclusive of the
costs of excavation, foundations, and footings
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below the lowest floor of any buildings
constructed as part of the Parking Lot
operation) . (The insurance described in this
subsection 11A(i) shall hereinafter be called
the "Casualty Insurance . " )
(ii) General comprehensive public liability
insurance (including coverage for elevators,
if any, on the Demised Premises) against
claims for bodily injury, death, or property
damage occurring on, in, or about the Demised
Premises and the adjoining streets, sidewalks,
and passageways, such insurance to afford
protection of not less than $5 million with
respect to bodily injury or death to all
persons in any one accident, and not less than
$1 million with respect to property damage in
any one occurrence. (The insurance described
in this subsection 11A(ii) shall hereinafter
be called the "Liability Insurance. " )
(iii) Adequate boiler and pressure vessel
insurance on all equipment, parts
thereof, and appurtenances attached or
connected to the Demised Premises which
by reason of their use or existence are
capable of bursting, erupting,
collapsing, or exploding. (The insurance
described in this subsection 11A(iii)
shall hereinafter be called the "Boiler
Insurance. ")
B. Any such insurance shall be written by companies of
recognized financial standing which are well rated
by a national rating agency and are legally
qualified to issue such insurance in the State of
Illinois, and such insurance shall name as the
insured parties thereunder, Landlord, or its
assigns, and Tenant, as their interests may appear.
Such insurance may be obtained by Tenant by
endorsement on its blanket insurance policies,
provided that (i) such blanket policies satisfy the
requirements specified herein and (ii) Landlord
shall be furnished with the certificate of the
insurer to the effect that (a) the amount of
insurance allocable to the Demised Premises is not
less than the amount required by this Section and
(b) the protection afforded Tenant and Landlord is
not less than the protection which would have been
afforded under a separate policy or policies
relating only to the Demised Premises. Landlord
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shall not be required to prosecute any claim
against any insurer or to contest any settlement
proposed by any insurer, provided that Tenant may,
at its cost and expense, prosecute any such claim
- or contest any such settlement, and in such event
Tenant may bring any such prosecution or contest in
the name of Landlord, Tenant, or both, and Landlord
shall cooperate with Tenant and will joint therein
at Tenant' s written request upon receipt by
Landlord of an indemnity from Tenant against all
costs, liabilities, and expenses in connection with
such cooperation, prosecution or contest .
(i) Tenant shall deliver to Landlord promptly
after the execution and delivery of this Lease
the original or duplicate policies or
certificates of insurance, including
certificates evidencing the naming of the
Landlord as an additional insured where
necessary, satisfactory to Landlord evidencing
all the insurance which is then required to be
maintain by Tenant hereunder, and Tenant
shall, within 30 days prior to the expiration
of any such insurance, deliver other original
or duplicate policies or other certificates of
the insurers evidencing the renewal of such
insurance. Should Tenant fail to effect,
maintain, or renew any insurance provided for
herein, or to pay the premium therefor, or to
deliver to Landlord any of such policies or
certificates, Landlord, at its option, but
without obligation so to do, may procure such
insurance, and any sums expended by it to
procure such insurance shall be additional
rent hereunder and shall be repaid by Tenant
within 30 days following the date on which
demand therefor shall be made by Landlord.
Such insurance policy(ies) shall contain a
provisions that such policy(ies) shall not be
canceled or reduced in scope without thirty
(30) days prior written notice to Landlord.
12 . Casualty.
A. If the Improvements on the Demised Premises or any
part thereof shall be damaged or destroyed by fire
or other casualty, Tenant shall promptly notify
Landlord of such destruction or damage. Rent shall
not abate hereunder by reason of any damage to or
destruction of the Improvements, except as
specifically provided for in this Lease.
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B . If the Improvements on the Demised Premises are
substantially damaged or destroyed in any single
fire or by any single casualty, then, at Tenant' s
election and in lieu of rebuilding, replacing and
repairing the Improvements as provided in this
Lease :
(i) Tenant may, upon one hundred eighty (180) days
written notice, elect to terminate this Lease,
whereupon rent shall abate retroactive to the
date of loss;
(ii) All insurance proceeds received or to be
received under the Casualty Insurance Policy
shall be the sole property of the Landlord
except to the extent otherwise required by the
terms of any Leasehold Mortgage;
(iii) Tenant shall have no responsibility
whatsoever with regard to the repair or
replacement of any of the Improvements or
other damages to the Demised Premises
caused by such casualty.
C. If a portion of the Demised Premises or the
Improvements shall be damaged or destroyed by fire
or other casualty and this Lease is not terminated
as provided for herein, then:
(i) Rent shall not abate;
(ii) Tenant shall, at its own costs and expense,
repair and/or rebuild the Improvements and all
damages to the Demised Premises;
(iii) Landlord shall fully cooperate in making
available to the Tenant at Tenant' s
request such insurance proceeds from the
Casualty Insurance Policy as may be
reasonably necessary to complete such
repair or restoration by Tenant;
(iv) Upon the completion of such repair or
restoration, Landlord shall cooperate in
turning over or assigning to Tenant any excess
insurance proceeds remaining with the
understanding that excess proceeds shall be
and remain the sole and exclusive property of
the Tenant.
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Nothing herein shall require the Tenant to pay or
expend in the repair or restoration of the
improvements or Demised Premises any sum of money
in excess of the insurance proceeds with regard to
the Casualty Insurance .
13 . Indemnity. Except to the extent caused by the negligence
of Landlord or its agents, employees or contractors and except for
the environmental issues as described hereinafter, Tenant will
indemnify and hold harmless Landlord from and against any and all
liability, loss, damages, expenses, causes of action, suits,
interest, fines, penalties, claims, and judgments (to the extent
that the same are not paid out of the proceeds of any policy of
insurance furnished by Tenant to Landlord pursuant to Section 11
hereof) arising from injury, or claim of injury, during the term of
this Lease to person or property of any and every nature, and from
any matter or thing, growing out of the occupation, possession,
use, management, improvement, construction, alteration, repair,
maintenance, or control of the Demised Premises, the Improvements
now or hereafter located .thereon, the facilities and equipment
thereon, the streets, sidewalks, vaults, vault spaces, curbs, and
gutters adjoining the Demised Premises, the appurtenances to the
Demised Premises, or the franchises and privileges connected
therewith, or arising out of Tenant' s failure to perform, fully and
promptly, or Tenant' s postponement of compliance with, each and
every term, covenant, condition, and agreement herein provided to
be performed by Tenant . Tenant, at Tenant' s own cost and expense,
will defend by counsel of Tenant' s choosing any and all suits that
may be brought and claims which may be made, against Landlord, or
in which Landlord may be impleaded with others, without fault on
its part, upon any such above-mentioned liability, loss, damages,
expenses, costs of action, suits, interest, fines, penalties,
claims, and judgments and shall satisfy, pay, and discharge any and
all judgments that may be recovered against Landlord in any such
action or actions, in which Landlord may be a party defendant,
without fault on its part, or that may be filed against the Demised
Premises, or the Improvement thereon, or the appurtenances, or any
interest therein, and in the event of the failure of Tenant to pay
the sum or sums for which Tenant shall become liable as aforesaid,
then Landlord may pay such sum or sums, with all interest and
charges which may have accrued thereon, and the amount so paid by
Landlord shall be payable by Tenant to Landlord upon demand.
14 . Assignment; Subletting.
A. So long as Tenant is operating its entertainment
and support facilities for the adjacent Riverboat
Gambling Operation upon the Site, it is agreed and
understood that Tenant may sub-lease portions of
the Demised Premises or Improvements thereon to
sub-lessees or concessionaires who operate parking
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lot facilities, all without the consent of the
Landlord.
B. Except as otherwise provided herein, Tenant may not
sublease any portion of the Demised Premises or
assign its interest in this Lease without the prior
consent of the Landlord, which consent shall not be
unreasonably withheld; provided however, that no
such Landlord consent shall be required with
respect to any such assignment or transfer to any
person or entity to which any constituent joint
venture partner of Elgin Riverboat Resort could
transfer all or any portion of its joint venture
interest without Landlord' s consent as contemplated
by Section 23C hereof .
15 . Environmental Conditions.
A. In conjunction with Tenant' s currently completed
development and any future redevelopment of the
Parking Lot upon the Demised Premises and Tenant' s
completed restoration and improvement of the West
Parcel, Landlord shall bear responsibility for any
and all additional or premium costs incurred by
Tenant in connection with the excavation, removal
and disposal of any and all soils contaminated by
the presence of any Hazardous Materials (as
hereinafter defined) which Tenant has encountered
or may in the future encounter. With respect to
any Hazardous Materials which were or are hereafter
transported off-site from the Demised Premises or
the West Parcel or are disposed of or migrate
naturally therefrom, for all intents and purposes,
Landlord, exclusively, shall be deemed the
"generator" of such materials and shall be deemed
the party which has arranged for treatment or
disposal of the same. Landlord shall sign all
manifests acknowledging such status, which may be
required in connection therewith. For the purposes
of this Section 15 A. and Section 15 B. below, the
phrase "additional or premium costs" shall mean:
(i) all costs in excess of the normal and
customary costs of excavation, removal and
disposal of clay and soils which are not
contaminated by the presence of any Hazardous
Materials and which would have been removed in
any event as a necessary measure incidental to
Tenant' s development of the Improvements upon
and with respect to the Demised Premises or
incidental to Tenant' s restoration and
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improvement of and with respect to the West
Parcel;
(ii) all costs of excavation, removal and disposal
of clay and soils which would not have been
excavated and • removed but for the
contamination thereof by the presence of any
Hazardous Materials;
(iii) all costs of importing and replacing such
contaminated clay and soils which would
not have been excavated and removed but
for the contamination thereof with clean
fill, clay and soil; and
(iv) all costs of implementing and maintaining any
groundwater treatment system relating to any
such contamination.
B. If, in addition to the contaminated soils addressed
above, Tenant encounters any further environmental
contamination of the Demised Premises during any
future redevelopment and/or use and occupancy of
the Demised Premises or West Parcel, Landlord shall
confer with Tenant in good faith as to any
additional remediation which may be necessary or
desirable in connection therewith. To the extent
Landlord and Tenant agree that any such additional
remediation is necessary or desirable as a result
of the presence of any other Hazardous Materials
upon the Demised Premises or the West Parcel,
Tenant shall cause the same to be performed and
Landlord shall be responsible for the payment of
all costs incurred by Tenant in connection with
such remediation. Tenant shall cause such
remediation to be completed in the most cost
effective manner as prevailing circumstances
reasonably permit. In the event Landlord and
Tenant cannot agree in writing as to the need
and/or cost to be borne by Landlord for any such
additional remediation, Tenant may nonetheless
cause the remediation thereof but Landlord will be
responsible for all costs related thereto which are
incurred in a cost effective manner under
prevailing circumstances if such remediation is
required under then applicable federal, state or
local environmental law. Notwithstanding the
foregoing, Landlord shall not be responsible
hereunder for any costs incurred by Tenant with
respect to the remediation of any environmental
contamination of the Demised Premises if the source
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of such contamination arises from acts, omissions,
events or circumstances which first arose
subsequent to the Commencement Date and are not the
result of any acts or omissions by the Landlord,
its agents or employees.
C. Landlord shall indemnify and hold harmless Tenant,
its constituent partners, and their respective
officers, shareholders, directors, partners,
employees and agents from and against any and all
liabilities, losses, damages, expenses, claims,
causes of action, suits, interest, fines,
penalties, claims and judgments whatsoever arising
out of the presence of any Hazardous Materials or
any other environmental contamination or
environmentally adverse conditions existing on or
emanating from the Demised Premises or the West
Parcel as of the Commencement Date. Tenant shall
notify Landlord promptly of any known claims with
respect to which Tenant is claiming indemnification
rights hereunder and shall tender the defense of
all such matters to Landlord. Landlord, at its own
cost and expense, will defend by counsel of its
choosing any and all such suits that may be brought
and claims which may be made against Tenant, or in
which Tenant may be impleaded with others, and
shall notify, pay and discharge any and all
judgments that may be recovered against Tenant in
any such action or actions in which Tenant may be a
party defendant. Tenant, at its sole discretion
and cost, may retain attorneys to monitor and/or
participate in the defense of any such claims .
Landlord shall direct its legal counsel to
cooperate with Tenant' s legal counsel in connection
therewith. Any settlement of any such claim which
may adversely affect the Demised Premises, the use
or operation of the improvements thereto, the West
Parcel, Tenant' s Riverboat Gambling Operation, the
rights of Tenant under this Lease or any
combination of the foregoing, shall be subject to
Tenant' s prior written approval, which approval
shall not be unreasonably withheld.
D. To the extent Tenant makes any payments for which
Landlord is responsible hereunder or Tenant
otherwise shall be entitled to any reimbursement or
other payments pursuant to the provisions of this
Section 15, Landlord shall pay the same within
thirty (30) days of presentation by Tenant of an
invoice therefor. In the event Landlord fails to
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make such payment, Tenant shall have the right to
receive interest accrued thereon until paid, at a
rate equal to one percent (1%) less than the "Prime
Rate" as published daily in the Wall Street
Journal .
E. The term "Hazardous Materials" shall mean (1) any
"hazardous substance" as defined by the
Compensation and Liability Act of 1980 (42 U. S.C.
Section 9601 et . seg. ) ; (ii) asbestos; (iii)
polychlorinated biphenyls; (iv) petroleum, oil,
gasoline (refined and unrefined) and their
respective by-products and constituents; and (v)
every other substance which by any federal, state
or local governmental requirements requires special
handling in its use, collection, storage, treatment
or disposal .
16 . Default Tenant; Termination.
A. The occurrence of any of the following shall
constitute a material default and breach of this
Lease by Tenant:
(i) Any failure by Tenant to pay the rental, taxes
or other sums required to be paid by Tenant
hereunder where such failure continues for
thirty (30) days after written notice thereof
by Landlord to Tenant; or
(ii) There shall be filed by or against Tenant in
any court or other tribunal a petition in
bankruptcy or insolvency proceedings or for
reorganization, which proceedings are not
dismissed within 180 days; or
(iii) Pursuant to any other default or breach
of this Lease by Tenant, Landlord obtains
a money judgment against Tenant .in a
court of competent jurisdiction, and such
judgment is not paid to Landlord within
sixty (60) days after such judgment
becomes final.
(iv) The operation by Tenant at any other location
in the State of Illinois of a gaming operation
following Tenant' s receipt of its Permanent
License from the Illinois Gaming Board for the
operation of its Riverboat Gambling Operation
unless Tenant continues its Riverboat Gambling
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Operation as contemplated by the Pavilion
Lease without violating (v) below.
(v) Subject to the provisions of Section 23
hereof, a failure by one or both of the
current joint venture partners of Tenant to
maintain in the aggregate not less than a 51%
ownership interest in Tenant at all times .
(vi) Failure by Tenant to use the Demised Premises
as a Parking Lot as provided in Section 3
hereof .
Landlord' s sole and exclusive remedy as against the
Tenant by reason of the occurrence of a material
default and breach of this Lease by Tenant shall be
to terminate this Lease, whereupon all of Tenant' s
rights and interest in and to the Improvements on
the Demised Premises shall be forwarded to and
become the• sole and exclusive property of, the
Landlord, including any bond posted by Tenant .
B. The occurrence of any default or breach of this .
Lease by Tenant, other than those set forth in
subsection A above, shall be deemed not to be
material hereunder, and Landlord shall not have the
right to terminate this Lease for any such default .
In the event of such a non-material default, which
default continues for thirty (30) days (or such
shorter cure period as may be specifically provided
elsewhere in this Lease) after written . notice
thereof by Landlord to Tenant (provided that, if
the nature of such default is such that the same
cannot be cured within such cure period, Tenant
shall not be deemed to be in default if Tenant
shall within such period commence such cure and
thereafter diligently pursue the same to
completion) , Landlord' s sole remedy shall be
damages, as determined by a court of competent
jurisdiction.
17 . Default by Landlord; Termination.
A. Upon any breach or failure by the Landlord to
perform any of its covenants or obligations as set
forth herein, or any breach by Landlord of its
representations as set forth herein, which breach
continues for more than thirty (30) days following
written notice thereof by Tenant to Landlord, said
action shall constitute a material default and
breach of this Lease by Landlord.
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B . Upon a breach of this Lease by Landlord, the Tenant
shall have the right, at its election:
(i) To recover from Landlord such damages as shall
have been incurred by Tenant as a result
thereof;
(ii) To terminate this Lease and, in connection
therewith, to require Landlord to purchase
from Tenant the Improvements and, if so
elected by Tenant, the Tenant' s Trade
Fixtures, all at their then fair market value;
(iii) To have and enjoy such other and further
remedies as may be available at law or in
equity under Illinois law.
All remedies set forth herein are cumulative.
18 . Voluntary Termination by Tenant. At the Tenant' s sole
discretion and election, the Tenant may declare this Lease
terminated at any time. Upon such voluntary termination by Tenant
it is agreed and understood:
A. Tenant shall have the right to remove all of its
Trade Fixtures;
B. All Improvements on the Demised Premises shall be
forfeited to and remain the sole and exclusive
property of the Landlord, as well as the balance of
the bond posted by Tenant;
C. Tenant shall have no further liability to Landlord
whatsoever with regard to this Lease.
Notwithstanding any such termination, the Landlord shall still
perform its obligations of indemnity to Tenant as set forth under
Section 15 above.
19. Tenant's Expenses. Landlord shall reimburse Tenant upon
demand for all reasonable expenses, including attorneys' fee,
incurred by Tenant in connection with any litigation to enforce any
obligation of Landlord which is in default hereunder. If the
leasehold interest of Landlord hereunder shall hereafter be held by
more than one person, corporation, or other entity, and if
litigation shall arise by reason of a dispute among such person,
corporations, or other entities, and if Tenant is made a party to
such litigation without Tenant' s consent, then Landlord shall
reimburse Tenant upon demand for all reasonable expenses, including
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attorneys' fees, incurred by Tenant in connection with any such
litigation.
20 . Landlord's Expenses. Tenant shall reimburse Landlord
upon demand for all reasonable expenses, including attorneys' fee,
incurred by Landlord in connection with the collection of any rent
in default hereunder, or the termination of this Lease by reason of
a material default of Tenant, as such term is defined above, or the
enforcement of any other obligation of Tenant which is in default
hereunder, or the protection of Landlord' s rights hereunder, or any
litigation or dispute in which Landlord becomes a party or
otherwise becomes involved, without fault on its part, relating to
the Demised Premises or Landlord' s rights or obligations hereunder.
If the Leasehold Estate of Tenant hereunder shall hereafter be held
by more than one person, corporation, or other entity, and if
litigation shall arise by reason of a dispute among such persons,
corporation, or other entities, and if Landlord is made a party to
such litigation without Landlord' s consent, then Tenant shall
reimburse Landlord upon demand for all reasonable expenses,
including attorneys' fees, incurred by Landlord in connection with
any such litigation.
21. Waiver of Trial by Jury. To the extent permitted by law,
Landlord and Tenant hereby waive trial by jury in any litigation
brought by either of the parties hereto against the other on any
matter arising out of or in any way connected with this Lease or
the Demised Premises or the Improvements thereon.
22 . Merger. In no event shall the leasehold interest,
estate, or rights of Tenant hereunder, or of the holder of any
mortgage upon this Lease, merge with any interest, estate, or
rights of Landlord in or to the Demised Premises, it being
understood that such leasehold interest, estate, and rights of
tenant hereunder, and of the holder of any mortgage upon this
Lease, shall be deemed to be separate and distinct from Landlord' s
interest, estate and rights in or to the Demised Premises,
notwithstanding that any such interests, estates, or rights shall
at any time or times be held by or vested in the same person,
corporation, or other entity.
23 . Definition of "Landlord" and "Tenant. "
A. The term "Landlord" as used in this Lease shall at
any given time mean the person or persons,
corporation or corporations, or other entity or
entities who are the owner or owners of the
reversionary estate of Landlord in and to the
Demised Premises. In the event of any conveyance
or other divestiture of title to the reversionary
estate of Landlord in and to the Demised Premises,
the grantor or the person or person, corporation or
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corporations, or other entity or entities who are
divested of title shall be entirely freed and
relieved of all covenants and obligations
thereafter accruing hereunder, and the grantee or
the person or persons, corporation or corporations,
or other entity or entities who otherwise succeeds
or succeed to title shall be deemed to have assumed
the covenants and obligations of Landlord hereunder
so assumed by said grantee or successor. Tenant
agrees to attorn to any such grantee or successor.
B. Notwithstanding anything to the contrary as stated
in Section 23A above, it is agreed and understood
that the City of Elgin, Illinois, shall at all
times remain obligated to indemnify the Tenant
under the provisions of Section 15 above
(concerning environmental liability) and shall be
personally liable to the Tenant by reason of its
breach or failure to do so as provided in Section
17 above.
C. The term "Tenant" as used in this Lease shall mean
Elgin Riverboat Resort, an Illinois joint venture
consisting of Nevada Landing Partnership and RBG,
L.P. , as its joint venture partners. Landlord
hereby acknowledges and approves of the current
ownership of the joint venture interests in Tenant
and agrees as follows:
(i) Any constituent joint venture partner of Elgin
Riverboat Resort may transfer all or any
portion of its joint venture interests therein
to any Affiliate of such joint venture partner
without Landlord' s consent. For the purposes
hereof, "Affiliate" shall mean any person or
entity directly or indirectly, through one or
more intermediaries, controlling, controlled
by, or under common control with such joint
venture partner. For the purposes hereof,
control shall mean the possession, whether
through the ownership of voting securities, by
contract or otherwise, of the power to direct
the management and policies of such entity.
In connection herewith, Landlord acknowledges
and agrees (a) that Affiliates of Nevada
Landing Partnership include, without
limitation, any person or entity directly or
indirectly, through one or more
intermediaries, controlling, controlled by or
under common control with Circus Circus
Enterprises, Inc. , a Nevada corporation, and
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(b) that Affiliates of RBG, L. P. include,
without limitation, any person or entity
directly or indirectly, through one or more
intermediaries controlling, controlled by or
under common control with Hyatt Development
Corporation, a Delaware corporation;
(ii) In addition to the foregoing right to freely
transfer interests in Elgin Riverboat Resort
to Affiliates, the current constituent joint
venture partners of Elgin Riverboat Resort (in
combination with their respective Affiliates)
may syndicate or otherwise transfer ownership
interests in Tenant to any persons or entities
provided that during the Basic Term hereunder,
the current joint venture partners (in
combination with their respective Affiliates)
shall retain not less than a fifty-one percent
(51%) ownership interest in Tenant (the
"Minimum Retained Interest") at all times .
(iii) In addition to the aforementioned rights
to transfer ownership interests in Tenant
without Landlord' s consent under Sections
23C (i) and 23C (ii) above, additional
ownership interests in Tenant may be
transferred to third parties with the
prior consent of Landlord.
(iv) Notwithstanding anything herein contained to
the contrary, all transfers of ownership
interests in Tenant and/or its constituent
joint venture partners shall be subject to all
applicable requirements of law and gaming
regulations.
24 . Landlord's Representations and Warranties.
A. Quiet Enjoyment. Landlord covenants that at all
times during the term of this Lease, so long as
Tenant is not in material default hereunder, Tenant
shall have the quiet and peaceable enjoyment of the
Demised Premises.
B. Landlord has good and merchantable title to the
Demised Premises and to the West Parcel and has
fully power and authority to make, enter into and
perform its obligations under this Lease.
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C. Landlord shall provide to Tenant, as soon as
reasonably practicable, at Landlord' s expense a
leasehold policy of title insurance, issued by Near
North Title Corporation, insuring the leasehold
estate of Tenant in the Demised Premises in an
amount equal to Four Hundred Thousand Dollars
($400, 000) and containing a 3 . 0 zoning endorsement
indicating that the Demised Premised may be
lawfully used for the conduct of the Parking Lot
business.
D. Simultaneously with the execution of this Lease,
Landlord shall provide to Tenant a certified copy
of the resolutions of the Elgin City Council
authorizing the execution and performance of this
Lease by Landlord, together with an opinion of
William A. Cogley, Esq. ; Corporation Counsel of the
City of Elgin, directed to Tenant in form and
substance reasonably acceptable to Tenant' s counsel
opining that the City has full power and authority
to make, execute and perform its obligations under
this Lease; that the Lease is a valid and binding
obligation of the City enforceable in accordance
with its terms; and that the City has full power
and authority to make the environmental indemnities
as set forth herein.
25 . Redevelopment. During the five (5) year period
commencing on the Commencement Date and ending on the fifth (5th)
anniversary of such date, Tenant shall have the right to submit to
Landlord a plan for redevelopment of the Demised Premises together
with the redevelopment of the West Parcel and, if accepted,
Landlord shall agree to sell both the Demised Premises and the West
Parcel to Tenant at a price to be agreed upon. While Landlord will
have no obligation to approve any such redevelopment proposal
submitted by Tenant, it shall nevertheless consider, in good faith,
all such proposals actually submitted to it. Landlord agrees, as
a covenant running with the Demised Premises which will survive any
earlier termination of this Lease, that Landlord will not develop,
propose or approve of any development of or on the East Parcel
during the five (5) year period commencing on the Commencement Date
and ending on the fifth (5th) anniversary of such date (other than
for public parking purposes) without the prior written consent of
Tenant .
26 . Notices. Any and all notices, demands, elections or
other communications between the parties shall be in writing and
shall be delivered personally or by certified mail, return receipt
requested. If mailed, such notice shall be deposited, postage
prepaid, in the United States mail, addressed to the intended party
at the address set forth below.
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If to Landlord: City of Elgin
150 Dexter Court
Elgin, IL 60120
Attn: City Clerk
If to Tenant : Elgin Riverboat Resort
c/o Mr. Peter A. Simon
Nevada Landing Hotel & Casino
P.O. Box 19278
Jean, NV 89019
With copies to: RBF, L.P.
200 West Madison Street
38th Floor
Chicago, Illinois 60606
Attention: Mr. Richard L. Schulze
and
Philip M. Kayman, Esq.
Neal, Gerber & Eisenberg
Suite 2200
Two North LaSalle Street
Chicago, Illinois 60602
Any party may change the person or address to or at which it
is to receive notice hereunder by giving notice of such change as
provided herein.
27 . Estoppel Certificates. Each party hereto agrees that at
any time and from time to time during the term of this Lease,
within ten (10) days after request by the other party hereto or by
any Leasehold Mortgagee, it will execute, acknowledged, and deliver
to the Leasehold Mortgagee or such other party or to any
prospective purchaser, assignee, or any other mortgagee designated
by such other party, a certificate stating (a) that this Lease is
unmodified and in force and effect (or if there have been
modifications, that this Lease is in force and effect as modified,
and identifying the modification agreements) ; (b) the date to which
rent has been paid; (c) whether or not there is any existing
default by Tenant in the payment of any rent or other sum of money
hereunder, and whether or not there is any other existing default
by either party hereto with respect to which a notice of default
has been served, and, if there is any such default, specifying the
nature and extent thereof; and (d) whether or not there are any
set-offs, defenses, or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the
party executing such certificate.
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28 . Payments of Money; Interest. All amounts whatsoever
which Tenant shall be obligated to pay to Landlord pursuant to this
Lease shall be deemed rent, and in the event of the nonpayment by
Tenant of any sum of money which Tenant from time to time shall be
obligated to pay to Landlord under any provision of this Lease,
Landlord shall have the same rights and remedies by reason of such
nonpayment as if Tenant had failed to pay an installment of Rent
under Section 2 hereof .
29 . Non-Waiver. No waiver by Landlord of any breach by
Tenant of any term, covenant, condition, or agreement herein and no
failure by Landlord to exercise any right or remedy in respect of
any breach hereunder, shall constitute a waiver or relinquishment
for the future of any such term, covenant, condition, or agreement
or of any subsequent breach of any such term, covenant, condition,
or agreement, nor bar any right or remedy of Landlord in respect of
any such subsequent breach, nor shall the receipt of any rent, or
any portion thereof, by Landlord, operate as a waiver of the rights
of Landlord to enforce the payment of any other rent then or
thereafter in default, or to terminate this Lease, or to recover
the Demised Premises, or to invoke any other appropriate remedy
which Landlord may select as herein or by law provided.
30 . Surrender.
A. Tenant shall, on the last day of the term of this
Lease or upon any termination of this Lease
pursuant to Section 16, 17 or 18 hereof, or upon
any other termination of this Lease, well and truly
surrender and deliver up the Demised Premises, with
the Improvements then located thereon into the
possession and with the Improvements then located
thereon into the possession and use of Landlord,
without fraud or delay and in good order, condition
and repair, free and clear of all lettings and
occupancies, free and clear of all liens and
encumbrances other than those existing on the date
of this Lease and those, if any, created by
Landlord, without any payment or allowance whatever
by Landlord on account of or for any buildings and
improvements erected or maintained on the Demised
premises at the time of the surrender, or for the
contents thereof or appurtenances thereto;
provided, however, that Tenant' s Trade Fixtures,
personal property, and other belongings of Tenant
or of any subtenant or other occupant of space in
the Demised Premises shall be and remain the
property of Tenant or of such subtenant, and Tenant
or such subtenant (as the case may be) shall have a
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reasonable time after the expiration of the term of
this Lease to remove the same.
B. Notwithstanding the provisions of Section 30A
above, in the event that the Demised Premises is
surrendered following the occurrence of any
casualty loss thereon, then unless the Tenant
elects to repair said casualty loss and, in
connection therewith, to use any Casualty Insurance
proceeds, the Tenant shall be obligated only to
deliver the Improvements in the condition as they
may be following such casualty loss and, as
provided above, all such Casualty Insurance
proceeds received under the Casualty Insurance
policy shall remain the sole and exclusive property
of the Landlord except to the extent otherwise
required by the terms of any Leasehold Mortgage .
31. Restoration and Improvement of West Parcel.
(a) Landlord hereby acknowledges that Tenant, in full
accordance with and in full satisfaction of its
obligations under Section 3 . 02 of the Third
Amendment, has restored the West Parcel to an open
landscaped green space solely for passive
recreational use by the public without facilities
for active use such as sports or other activities
and has also restored the bicycle path on property
adjacent to the West Parcel (representing a
continuation of the bicycle path on adjacent
property) . The aforementioned restoration of the
West Parcel at Tenant' s cost and expense is hereby
approved and accepted by Landlord. Tenant,
however, shall have the right, without fee or other
compensation to the Landlord, to use the West
Parcel for events or activities incident to its
Riverboat Gambling Operation.
(b) Tenant shall not permit any mechanics' ,
materialmans' or other such lien to be placed
against the West Parcel by reason of any work,
labor, service, or material performed or furnished
for or to Tenant; provided, however, that if any
such lien is placed against the West Parcel, Tenant
may contest such lien by appropriate proceedings if
Tenant shall have delivered to the Landlord a
surety bond, reasonably acceptable to Tenant, in
form, content and amount protecting the Landlord
against the enforcement of such lien or,
alternatively, shall have provided the Landlord
with title insurance protection against the
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enforcement of such lien. Tenant shall at all
times indemnify the Landlord against and hold it
harmless with respect to any loss, cost, fee,
charge, expense, lien, or liability of any nature
occurring or accruing by virtue of any such work,
labor, service, or material performed or furnished
for or to the Tenant.
(c) Except to the extent caused by the negligence of
the Landlord or its agents, employees or
contractors and except for the environmental issues
as described hereinafter, Tenant will indemnify and
hold harmless the Landlord from and against any and
all liability, loss, damage, expense, cause of
action, suit, interest, fine, penalty, claim, and
judgment (to the extent that the same are not paid
out of the proceeds of any policy of insurance as
may be furnished by Tenant to the Landlord with
respect to Tenant' s activities on the West Parcel)
arising from injury to person or property growing
out of the use, improvement, construction,
alteration, repair, or maintenance of the West
Parcel by Tenant, or its agents, employees or
contractors. Tenant, at Tenant' s own cost and
expense, will defend by counsel of Tenant' s
choosing any and all suits that may be brought and
claims which may be made against the Landlord, or
in which the Landlord may be impleaded with others,
without fault on its part, upon any such above-
mentioned liability, loss, damage, expense, cause
of action, suit, interest, fine, penalty, claim, or
judgment and shall satisfy, pay, and discharge any
and all judgments that may be recovered against the
Landlord in any such action or actions in which the
Landlord may be a party defendant, without fault on
its part, and in the event of the failure of Tenant
to pay the sum or sums for which Tenant shall
become liable as aforesaid, then the Landlord may
pay such sum or sums, with all interest and charges
which may have accrued thereon, and the amount so
paid by the Landlord shall be payable by Tenant to
the Landlord upon demand.
32 . West Parcel Development Rights.
A. The Landlord agrees, as a covenant burdening and
running with the West Parcel, that no development
will be permitted on the West Parcel, and that the
West Parcel shall remain in its state as restored
and improved by the Tenant, for a period of not
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less than five (5) years following the Commencement
Date, unless the prior written consent of Tenant to
any such development is obtained.
B. The Tenant agrees that during the above referenced
five (5) year period, the Tenant will maintain the
West Parcel in a neat and orderly condition at its
sole cost and expense consistent with the original
design and intended use of the West Parcel as
referenced by Section 31 above.
33 . Option to Purchase East Parcel.
A. Provided that Tenant shall have concurrently
exercised its rights to purchase the West Parcel
pursuant to Section 34, Tenant shall have the right
and option, exercisable at any time during the five
(5) year period commencing on the Commencement Date
and ending on the fifth (5th) anniversary of such
date (the "Option Term") , to purchase the Demised
Premises (the "East Parcel Option") .
B. To exercise the East Parcel Option, Tenant shall
execute and deliver to Landlord a Real Estate Sale
Agreement in the form attached hereto as Exhibit C
(the "Contract") , inserting therein the appropriate
date of closing, legal description, purchase price
(as determined below) and other information
necessary to complete said form.
C. The purchase price to be paid pursuant to the
exercise the East Parcel Option shall be the then
current fair market value for the Demised Premises
determined by an M.A. I . appraisal to be conducted
by a jointly-approved M.A. I . appraiser utilizing
solely the comparable sales data approach to
valuation.
D. The deed of conveyance conveying the Demised
Premises shall contain a reverter in favor of
Landlord whereby said property will revert to the
Landlord, without additional consideration or
payment to Tenant, in the event (i) Tenant shall
have failed to commence construction either on the
West Parcel, the Site, or the Demised Premises
conveyed pursuant to the deed, of a hotel, having
not less than 150 guest rooms, of a quality equal
to or exceeding the standard of quality currently
applicable to the Nevada hotel properties owned by
an affiliate of Nevada Landing, Inc. (which is an
affiliate of one of the constituent partners of
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Tenant) , on or prior to a date which is not later
than three (3) years after the date of the deed or
such later date as may be necessary due to labor
strikes or disputes, transportation delays,
abnormal adverse weather conditions not reasonably
capable of being anticipated, or other casualties
or causes beyond Tenant' s reasonable control which
cause construction work stoppage or other delays
with respect to construction progress (any such
cause for delay being deemed to be the result of
"Force Majeure" ) , or Tenant shall have failed to
complete such construction within five (5) years
after the date of the deed (subject to extension
for delays resulting from Force Majeure) , or (ii)
Tenant (or any successor owner of the Demised
Premises) shall fail to maintain free public
parking on the Demised Premises sufficient to
accommodate the number of vehicles accommodated on
the Demised Premises prior to the purchase thereof
by Tenant except during such period(s) of time as
use for such purposes is suspended by reason of
Force Majeure or by reason of construction of the
hotel thereon. With respect to such hotel, Tenant
shall seek to provide a product of the highest
quality deemed appropriate by Tenant given the
anticipated use of the hotel and the prevailing
market conditions therefor. Provided the foregoing
requirements are complied with, all other design
criteria with respect to the hotel shall be
determined by Tenant in its sole discretion.
E . Following an exercise of the East Parcel Option,
the real estate transaction shall be governed and
controlled in accordance with the terms of the
Contract (notwithstanding any subsequent
termination or expiration of this Lease) .
•
F. In addition to Tenant' s East Parcel Option under
subsection (A) above, if, prior to the purchase of
the Demised Premises by Tenant pursuant to the
exercise of its East Parcel Option, but within five
(5) years after expiration of the Option Term,
Landlord proposes to construct, or permit to be
constructed, any building or other improvement on
the Demised Premises, or any portion thereof, the
Landlord shall first notify Tenant thereof in
writing setting forth the nature of the proposed
development, and the portion of the Demised
Premises to be so developed. Upon receiving such
notice, Tenant shall have thirty (30) days in which
-29-
to notify Landlord in writing of its intention to
purchase that portion of the Demised Premises which
Landlord proposes to develop, and, if Tenant
exercises its right to purchase as herein provided,
the delivery of its said notice shall constitute a
binding contract between the Landlord and Tenant
for the purchase of the portion of the Demised
Premises proposed to be developed at a price equal
to fair market value thereof, to be determined in
accordance with the appraisal procedures applicable
to the East Parcel Option referred to above, and
subject to the reverter provisions set forth above
but otherwise in accordance with the terms and
provisions of the Contract. If Tenant fails to
exercise its right to purchase as herein provided,
Landlord may develop that portion of the Demised
Premises which it had originally proposed to
develop free of any remaining rights of Tenant with
respect thereto (including any rights under the
East Parcel Option set forth in subsection (A)
above) .
34 . Option to Purchase West Parcel.
A. Provided that Tenant shall have concurrently
exercised its rights to purchase the East Parcel
pursuant to an exercise of the East Parcel Option,
Tenant shall have the right and option, exercisable
at any time throughout the five (5) year period
commencing on the Commencement Date and expiring on
the fifth (5th) anniversary of such date (the "West
Parcel Option Period") , to purchase the West Parcel
(the "West Parcel Option") .
B. To exercise the West Parcel Option, Tenant shall
execute and deliver to Landlord the Contract
inserting therein the appropriate date of closing,
legal description, purchase price (as determined
below) and other information necessary to complete
said form.
C. The purchase price to be paid pursuant to the
exercise the West Parcel Option shall be the then
current fair market value for the West Parcel
determined by an M.A. I . appraisal to be conducted
by a jointly-approved M.A. I . appraiser utilizing
solely the comparable sales data approach to
valuation.
D. The deed of conveyance conveying the West Parcel
shall contain a reverter in favor of the Landlord
-30-
whereby said property will revert to the Landlord,
without additional consideration or payment to
Tenant, in the event Tenant shall have failed to
commence construction either on the East Parcel,
the Site, or the West Parcel conveyed pursuant to
the deed, of a hotel, having not less than 150
guest rooms, of a quality equal to or exceeding the
standard of quality currently applicable to the
Nevada hotel properties owned by an affiliate of
Nevada Landing, Inc. (which is an affiliate of one
of the constituent partners of Tenant) , on or prior
to a date which is not later than three (3) years
after the date of. the deed or such later date as
may be necessary due to labor strikes or disputes,
transportation delays, abnormal adverse weather
conditions not reasonably capable of being
anticipated, or other casualties or causes beyond
Tenant' s reasonable control which cause
construction work stoppage or other delays with
respect to construction progress (any such cause
for delay being deemed to be the result of "Force
Majeure") , or Tenant shall have failed to complete
such construction within five (5) years after the
date of the deed (subject to extension for delays
resulting from Force Majeure) . With respect to
such hotel, Tenant shall seek to provide a product
of the highest quality deemed appropriate by Tenant
given the anticipated use of the hotel and the
prevailing market conditions therefor. Provided
the foregoing requirements are complied with, all
other design criteria with respect to the hotel
shall be determined by Tenant in its sole
discretion.
E. Following an exercise of the West Parcel Option,
the real estate transaction shall be governed and
controlled in accordance with the terms of the
Contract (notwithstanding any subsequent
termination or expiration of this Lease) .
F. In addition to Tenant' s West Parcel Option under
subsection (A) above, if, prior to the purchase of
the West Parcel by Tenant pursuant to the exercise
of its West Parcel Option, but within the West
Parcel Option Period, the Landlord proposes to
construct, or permit to be constructed, any
building or other improvement on the West Parcel,
or any portion thereof, the Landlord shall first
notify Tenant thereof in writing setting forth the
nature of the proposed development and the portion
of the West Parcel to be so developed. Upon
-31-
receiving such notice, Tenant shall have thirty
(30) days in which to notify the Landlord in
writing of its intention to purchase the entire
West Parcel, and, if Tenant exercises its right to
purchase as herein provided, the delivery of its
said notice shall constitute a binding contract
between the Landlord and Tenant for the purchase of
the West Parcel at a price equal to fair market
value thereof, to be determined in accordance with
the appraisal procedures applicable to the West
Parcel Option referred to above and subject to the
reverter provisions set forth above, but otherwise
in accordance with the terms and provisions of the
Contract . If Tenant fails to exercise its right to
purchase as herein provided, the Landlord may
• develop the West Parcel as it had originally
proposed to develop free of any remaining rights of
Tenant with respect thereto (including any rights
under the West Parcel Option set forth above) .
35 . Memorandum of Lease. Each of the parties hereto will,
promptly upon request of the other, execute a memorandum of this
Lease in form suitable for recording setting forth the names of the
parties hereto and the term of this Lease, identifying the Demised
Premises and West Parcel, and also including such other clauses
therein as either party may desire, except the amounts of Basic
Rent payable hereunder.
36 . No Oral Changes. This Lease may not be changed or
modified orally, but only by an agreement in writing signed by the
party or its authorized agent against whom such change or
modification is sought to be enforced.
37 . Bind and Inure. The terms, covenants, conditions, and
agreements of this Lease shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
38 . Applicable Law. This Lease shall be governed and
construed in accordance with the laws of the State of Illinois.
39 . Entire Agreement. This Lease shall constitute the entire
agreement of the parties concerning the subject matter set forth
herein, all other prior agreements and understandings having been
merged herein and extinguished hereby. In the event of any
conflict between the terms and provisions of this Lease and the
terms and provisions of the Development Agreement with respect to
the use, maintenance or operation of the Demised Premises, the
terms and provisions of this Lease shall prevail . Upon
commencement of the Riverboat Gambling Operation, any and all
provisions , of the Development Agreement relating to the use,
maintenance or operation of the Demised Premises as the Parking Lot
shall be superseded in their entirety by the terms and provisions
of this Lease.
-32-
40 . Obligation to Refrain from Discrimination. The parties
hereto hereby covenant by and for themselves, their heirs,
executors, administrators, and assigns, and all persons claiming
under or through them that this Lease is made and accepted upon and
subject to the following conditions : There shall be no
discrimination against or segregation of any person or group of
persons on account of sex, race, color, creed, national origin, or
ancestry, in the leasing, subleasing, transferring, use, or
enjoyment of the land herein leased, nor shall the lessee himself,
or any person claiming under or through him, establish or permit
any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees
in the land herein leased.
IN WITNESS WHEREOF, the parties have caused this agreement to
be executed on the date first written above.
CITY OF ELGIN, ELGIN RIVERBOAT RESORT,
a municipal corporation an Illinois partnership
By RBG, L.P. ,
By: one of its general
Mayor / partners
By HC • ,1-rp•r tion,
Attest: it- '. ne I; partner
&(thv)-42. f By:
City Clerk Schulze
ice Pre- dent
-33-
INDEX TO EXHIBITS
Exhibit A: East Parcel .
Exhibit B: West Parcel .
Exhibit C: Real Estate Sale Agreement
C:\80821\11942\0017.0
EXHIBIT A
EAST PARCEL
THAT PART OF THE SOUTHWEST QUARTER OF SECTION 13 , TOWNSHIP 41
NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS
FOLLOWS :
LOTS 3 THROUGH 18, BOTH INCLUSIVE, IN BLOCK 1 OF O. DAVIDSON' S
ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
ALSO
LOTS 1 THROUGH 16, BOTH INCLUSIVE, IN BLOCK "A" OF DAVIDSON' S GROVE
AVENUE SUBDIVISION, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PERMANENT INDEX NO. 06-13-352-038
C:\80821\11942\EASTPARC
EXHIBIT B
WEST PARCEL
THAT PART OF JAMES T. GIFFORD' S ADDITION AND BLOCK B OF DAVIDSON' S
GROVE AVENUE SUBDIVISION AND BLOCK 4 OF 0. DAVIDSON' S ADDITION TO
ELGIN AND LYING SOUTH OF A LINE DRAWN PARALLEL TO THE SOUTHEASTERLY
LINE OF SAID JAMES T. GIFFORD' S ADDITION, SAID LINE PASSES THROUGH
A POINT BEING 85 . 0 FEET SOUTHEASTERLY (AS MEASURED ALONG THE WEST
LINE OF GROVE AVENUE) OF THE SOUTH LINE OF PRAIRIE STREET.
PERMANENT INDEX NO.
C:\80821\11942\WESTPARC
EXHIBIT C
REAL ESTATE SALE AGREEMENT
THIS AGREEMENT is made and entered into this day of
by and between the City of Elgin, an Illinois municipal corporation (hereinafter
(hereinafter referred to as "Seller") and Elgin Riverboat Resort (hereinafter referred to as
"Purchaser").
RECITALS
A. Seller currently holds title or is the sole beneficiary of a title holding land trust
("Trust") which holds title to real estate and appurtenant rights including approximately
acres of land located at , in the City of Elgin, Kane
County, Illinois. The aforesaid real estate is legally described as on Exhibit A attached hereto
(which real estate and all improvements thereon shall hereinafter be referred to as the "Real
Estate").
B. Purchaser desires to purchase the Real Estate from Seller, and Seller desires to
sell and/or cause the Trust to sell the Real Estate to Purchaser, upon the terms and conditions
hereinafter set forth.
CONSIDERATION
In consideration of the mutual covenants and promises of the parties, Seller and Purchaser
hereby agree as follows:
AGREEMENT
1. Sale and Purchase. Seller agrees to sell and/or cause the Trust to sell and
Purchaser agrees to purchase the Real Estate upon the terms and conditions herein set forth for
a purchase price of , (hereinafter referred to as the "Purchase Price").
2. Conveyance. Seller agrees to convey, or cause to be conveyed, to Purchaser, or
Purchaser's nominee, title to the Real Estate by a recordable, stamped Warranty Deed, subject
only to: (a) general real estate taxes not due and payable as of the date of the closing hereof; (b)
acts of Purchaser and those parties acting through or for Purchaser; (c) easements, covenants,
and restrictions of record, provided the existing uses are not violated by same; and (d) a
reversion of title in favor of Seller on the terms and conditions described in that certain (Lease]
between Seller and Purchaser.
3. Earnest Money. Purchase agrees to pay the sum of Five Thousand ($5,000)
Dollars as earnest money upon the execution hereof which shall be applied on the Purchase Price
at the Closing, as hereinafter defined. The balance of the Purchase Price, plus or minus
prorations, shall be paid by Purchaser at the closing in cash or certified or cashier's check
payable to Seller or Seller's order. The earnest money shall be held by Chicago Title and Trust
Company or another mutually acceptable escrow agent (hereafter called "CTTC") in its standard
joint order escrow for the benefit of the parties, and shall be deposited by Purchaser within 5
days following the acceptance of this Agreement. Purchaser shall pay all fees in connection with
the escrow.
4. Closing.
(a) The consummation of the transaction herein described(hereinafter referred
to as the "Closing") shall be on , or on the date to
which such time is extended by reason of Paragraph 8 unless subsequently
mutually agreed otherwise, at the office of CTTC in St. Charles, Illinois
or such other location as is acceptable to Purchaser and Seller, provided
title is shown to be in the condition required herein or is otherwise
acceptable to Purchaser. At the Closing, the parties shall deliver all
documents required by this Agreement.
(b) At the election of either party, the transaction herein contemplated may be
closed through an escrow with CTTC, in accordance with the general
provisions of the usual form of Deed and Money Escrow Agreement then
in use by said company, with such special provisions inserted in the
escrow agreement to permit an immediate("New York-Style") closing and
as otherwise may be required to conform with this Agreement. Upon the
creation of such an escrow, anything herein to the contrary
notwithstanding, payment of the Purchase Price and delivery of deed shall
be made through the escrow and the cost of said escrow shall be shared
equally by the parties.
5. Delivery of Possession. Seller acknowledges that Purchaser is currently in
possession of the real estate.
6. Condition. Seller agrees to deliver the Real Estate in the same condition as it is
at the date of this Agreement, ordinary wear and tear excepted.
•
•
-2-
7. Evidence of Title. Seller shall deliver, or cause to be delivered, to Purchaser or
Purchaser's nominee, within fifteen (15) days after the acceptance and execution of this
Agreement by both Parties, a current title commitment from Chicago Title Insurance Company
or another mutually acceptable title insurance company for an ALTA Form B Owner's Title
Insurance Policy in the amount of the Purchase Price. The aforesaid commitment shall show
title in the intended grantor subject only to (a) rights of Purchaser under existing leasehold; (b)
the title exceptions set forth in Paragraph 2 hereof; and (c) title exceptions pertaining to liens
or encumbrances of a definite or ascertainable amount which may be removed by the payment
of money at the Closing and which the Seller will so remove at that time by using the funds to
be paid to Seller.hereunder (all of which are herein referred to as the "Permitted Exceptions").
The title commitment (and policy issued pursuant thereto) shall contain extended coverage over
the general exceptions to the policy. The title policy shall be conclusive evidence of good title
as therein shown as to all matters incurred by the policy subject only to the exceptions therein
stated.
8. Closing Adjustments. General real estate taxes and assessments shall be adjusted
ratably (prorated) with respect to the subject transaction as of the day of the Closing, using, for
such purpose, a presumed real estate tax amount for any period for which actual taxes are not
yet known determined by multiplying the most recent assessed valuation of the Real Estate (as
determined by the Township Assessor's office) times and then multiplying
that product by the most recent ascertainable tax rate that was applicable to the Real Estate.
Rent shall also be prorated as of the date of closing. No other items shall be prorated and all
prorations shall be final. Seller shall pay the amount of any stamp tax imposed by law by the
State of Illinois, the county in which the Real Estate is located, and by any other local law or
ordinance on the transfer of title, and shall furnish completed real estate transfer declarations
signed by Seller or Seller's agent in the forms required pursuant to such laws.
9. Damage. The provisions of the Uniform Vendor and Purchaser Risk Act of the
State of Illinois shall be applicable to this Agreement.
10. Time. Time is of the essence of this Agreement.
11. Notice. All notices herein required shall be in writing and shall be served on the
parties at the following addresses:
If to Purchaser: Peter A. Simon
Corporate Development Office
Circus Circus Enterprises, Inc.
2880 Las Vegas Blvd., South
Las Vegas, Nevada 89109
with copies to: Richard L. Schulze
Madison Plaza
Suite 3800
-3-
200 West Madison Street
Chicago, IL 60606
and
Philip M. Kayman, Esq.
Neal, Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
If to Seller: City Clerk
City of Elgin
150 Dexter Court
Elgin, IL 60120
The mailing of a notice by registered or certified mail, return receipt requested, shall be
sufficient service. Notices shall be deemed served when delivered if delivered by hand, or on
the date of mailing, if mailed as described above.
12. Choice of Law. This Agreement shall be governed by the laws of the State of
Illinois.
13. Miscellaneous. If the date for Closing or performance of an obligation falls on
a Saturday, Sunday or holiday, the date shall be deferred until the first business day following.
No amendments, modifications or changes shall be binding upon a party unless set forth in a
duly executed document.
14. Termination.
(a) If this Agreement is breached by Purchaser, then (i) Seller may terminate
this Agreement and the earnest money shall be forfeited to the Seller and
retained by the Seller as liquidated damages or (ii) Seller may seek
specific performance of Purchaser's obligations under this Agreement or
(iii) Seller may recover such damages from Purchaser as Seller may have
thereby incurred, applying the Earnest Money to any judgment obtained
in such action and recover any excess damages from Purchaser. The
remedies of Seller enumerated herein are cumulative.
(b) If this Agreement is breached by Seller, then (i) Purchaser may declare
this Agreement null and void (whereupon all Earnest Money shall be
refunded to Purchaser) or(ii) Purchaser may seek specific performance of
Seller's obligations hereunder or (iii) Purchaser may pursue such other
remedies as may be available against the Seller under Illinois law. The
remedies enumerated herein shall be in addition to, and not in lieu of,
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Sale
Agreement as of the day first above written.
City of Elgin,
an Illinois municipal corporation,
By:
Mayor
Seal
Attest:
City Clerk
Elgin Riverboat Resort,
an Illinois partnership,
By RBG, L.P., •
one of its general partners
By HCCA Corporation,
its general partner
By:
Its President
C:180821\11942\0003.D
-6-
-L-
V iISIHXa
THIS INSTRUMENT WAS PREPARED BY
AND AFTER RECORDING RETURN TO:
Irwin I . Gzesh, Esq.
Neal Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
MEMORANDUM OF GROUND LEASE AND OPTION AGREEMENT
THIS MEMORANDUM OF GROUND LEASE AND OPTION AGREEMENT
("Memorandum" ) is made effective as of the 1st day of January, 1995
by and between the City of Elgin, Illinois, an Illinois municipal
corporation ("Landlord" ) , having an address of 150 Dexter Court,
Elgin, Illinois 60120 , and Elgin Riverboat Resort, an Illinois
joint venture ("Tenant") , having an address in care of RBG, L. P. ,
200 West Madison Street, 38th Floor, Chicago, Illinois 60606 .
1 . Real Estate . Landlord is the owner of that certain real
property legally described in Exhibit A attached hereto and made a
part hereof, located in Kane County, Illinois (the "East Parcel")
and is the owner of that certain real property legally described in
Exhibit B attached hereto and made a part hereof, located in Kane
County, Illinois (the "West Parcel") .
2 . The Lease. Pursuant to that certain Ground Lease and
Option Agreement between Landlord and Tenant dated as of January 1,
1995 (the "Agreement") , Tenant has leased the East Parcel from
Landlord for an initial term commencing on January 1, 1995, and
terminating on December 31, 1999 . The Agreement also grants Tenant
certain options exercisable at any time during the term of the
Agreement to purchase the East Parcel and the West Parcel, all on
the terms and conditions therein provided. The Landlord has also
agreed not to permit development of the West Parcel during the term
of the Agreement .
3 . Purpose of Memorandum. This Memorandum was prepared,
signed and acknowledged solely for recording purposes under the
laws of the State of Illinois and is in no way intended to change,
alter, modify, amend or in any way affect the rights, duties and
obligations of Landlord and Tenant pursuant to the Agreement . For
a full statement of the terms and conditions of the Agreement, any
person or entity dealing with the East Parcel or West Parcel should
refer to the Agreement; the sole intention and purpose of this
instrument being to place those dealing with the East Parcel or
West Parcel on notice of the Agreement .
IN WITNESS WHEREOF, the parties have caused this Memorandum to
be executed effective as of the day and year first above written.
LANDLORD: CITY OF ELGIN, a municipal
corporation
By:
Its : Mayor
Attest :
Its : City Clerk
TENANT: ELGIN RIVERBOAT RESORT, an Illinois
partnership
By RBG, L.P. ,
one of its general partners
By HC • * orporation,
its • - ; al •artner
By
Richard * . Schulze
STATE OF ILLINOIS )
SS :
COUNTY OF KANE )
The foregoing MEMORANDUM OF GROUND LEASE AND OPTION AGREEMENT
was acknowledged before me this 2nd day of December , 1998 by
Kevin Kelly and Dolonna Mecum , the Mayor and City
Clerk of the City of Elgin, on behalf of the City of Elgin, in its
capacity as Landlord as aforesaid, for the uses and purposes
therein set forth.
OFFICIAL SEAL 0 Notary Public
4 NANCY ROLL
4 NOTARY PUBLIC, STATE OF ILLINOIS
4 My Commission Expires Aug. 10, 2001 ) My commission expires : August 10, 2001
SATE OF ILLINOIS )
SS:
COUNTY OF COOK )
The foregoing MEMORANDUM OF GRO. LEASE AA OPTION AGREEMENT
was acknowledged before me this cAday of Jaa-.0 , 199i by.
Richard L. Schulze, in his capacity as
HCCA Corporation, acting as general partner of RBG, L.P . , in its ,rdenC,
capacity as one of the general partners of Elgin Riverboat Resort,
in its capacity as Tenant as aforesaid, for the uses and purposes
therein set forth.
rslw�v�nn
ArSEAr1
IRMA TOVAR Not Public
NOTARY PUBLIC,STATE OF ILLINOIS
MY COMMISSION EXPIRES:03/15/99
My commission expires : �>>SM
C:\80821\11942\MEMOGROU
EXHIBIT A
EAST PARCEL
THAT PART OF THE SOUTHWEST QUARTER OF SECTION 13 , TOWNSHIP 41
NORTH, RANGE S EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS
FOLLOWS :
LOTS 3 THROUGH 18, BOTH INCLUSIVE, IN BLOCK 1 OF O. DAVIDSON' S
ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
ALSO
LOTS 1 THROUGH 16, BOTH INCLUSIVE, IN BLOCK "A" OF DAVIDSON' S GROVE
AVENUE SUBDIVISION, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PERMANENT INDEX NO. 06-13-352-038
-4-
EXHIBIT B
WEST PARCEL
THAT PART OF JAMES T. GIFFORD' S ADDITION AND BLOCK B OF DAVIDSON' S
GROVE AVENUE SUBDIVISION AND BLOCK 4 OF 0. DAVIDSON' S ADDITION TO
ELGIN AND LYING SOUTH OF A LINE DRAWN PARALLEL TO THE SOUTHEASTERLY
LINE OF SAID JAMES T. GIFFORD' S ADDITION, SAID LINE PASSES THROUGH
A POINT BEING 85 . 0 FEET SOUTHEASTERLY (AS MEASURED ALONG THE WEST
LINE OF GROVE AVENUE) OF THE SOUTH LINE OF PRAIRIE STREET.
PERMANENT INDEX NO.