Exhibit 10.45
LEASE
AND AGREEMENT-SPRING 1995
(Lower Lots)
This Lease and Agreement-Spring 1995 Lower Lots
(hereinafter “Agreement”) is made this
15th day of August, 1995 between the Andrianakos
Limited Liability Company, a Colorado Limited Liability Company,
the Lessor, and Anchor Coin, Inc. d/b/a Colorado Central
Station Casino, Inc., the Lessee.
WHEREAS, the
parties hereto are also parties to the following lease, which
concerns a portion of property, which is the subject
hereof:
Renewed Vacant Ground
Lease for Parking Lot Purposes (Lower Lot), dated August 19,
1994, recorded at Book 568, Page 291, Gilpin County Clerk and
Recorder’s Office (hereinafter “Lower Lot
Lease”); and,
WHEREAS, the Lower
Lot Lease has expired, but by action of the parties has become a
month to month lease, and the parties mutually wish to revise,
restate its terms and enter into this new Agreement, which
completely replaces and supersedes the terms, covenants,
agreements, and all other elements of the aforesaid Lower Lot Lease
in all respects; and,
WHEREAS, the
parties also wish to address the lease of additional property,
which has not heretofore been the subject of any lease agreement
between them.
NOW THEREFORE BE IT AGREED AS
FOLLOWS:
A.
LEASE
A-1. Property
Description . The following described property is the subject
of this Agreement (hereinafter collectively “The
Property”). The specific description of The Property is set
forth on Exhibit A attached hereto and incorporated herein. A
map of The Property is attached hereto as Exhibit B. The
Property which is the subject of this Agreement may include, by
virtue of the Option set forth in paragraph A-6 hereinafter, any
land acquired or developed by the Lessor, or its individual
members, within Black Hawk, Colorado during the term of this
Agreement or any renewal thereof.
A-2. Term and Rental
Rates . The Lessee shall have and hold The Property from the
date hereof to and until twelve o’clock noon on the date of
June 1, 2004, at and for a rental rate beginning One Hundred
Eighty (180) days after the date hereof of One Hundred Thousand
Three Hundred Forty Dollars ($100,340.00) per month, payable
monthly on or before twelve o’clock noon on the first day of
each calendar month during said term at the office of the Lessor as
set forth below without notice. The foregoing base rental rate may
be increased by operation of the provisions of paragraph B-5
hereinafter. Prior to One Hundred Eighty (180) days from the date
hereof the rental rate shall be Thirty Thousand Dollars
($30,000.00) per month.
A-3. Renewals.
This Agreement may be renewed at Lessee’s sole option for up
to eighteen (18) additional terms of five (5) years each.
Renewal shall be automatic for each term unless Lessee gives its
notice of non-renewal not less than six months prior to the end of
any term.
A-4. Possible
Termination of Renewal Rights . The parties hereto are also
parties to that certain Spring 1995 - Amended and Restated Vacant
Ground Lease for Parking Lot Purposes and Agreement (Upper Lot)
(hereinafter “Upper Lot Lease”), of even date herewith.
The Upper Lot Lease itself contains renewal provisions. In order
for the Lessee to effect the renewal provisions of this Agreement
during the primary term or any automatic renewal of the Upper Lot
Lease, the Upper Lot Lease must either, 1) be in effect as of the
date of any renewal exercise; or, 2) the Lessee must have at least
offered to renew the Upper Lot Lease pursuant to the terms of
paragraph A-3 thereof. Notwithstanding the foregoing, if Lessee
does not renew or terminates the Upper Lot Lease for reasons beyond
its control, including but not limited to the discovery of
hazardous substance or acts of God making the property unusable,
the Lessee may continue to effect any renewal provisions of this
Agreement.
A-5. Rental Rate
Indexing . At one year intervals beginning June 1, 1996,
the rental rate paid to Lessee will be indexed to correspond to any
rise or fall in the cost of living. Any increase or decrease in
rental rate will be limited to a three percent (3%)
difference from the previous year’s rate. The parties agree
to use the Consumer Price. Index figures for the Denver/Boulder
Standard Metropolitan Statistical Area released by the U.S.
Department of Commerce, or its successor, most recently preceding
the June first of the subject year to determine any change of
the cost of living.
A-6. Option . In
the event the Andrianakos Limited Liability Company, or its
individual members, develops or purchases additional property in
Black Hawk, Colorado, which would be suitable for either parking
lot or building purposes, they will offer to the Lessee a first
option to immediately lease, for the remaining term of this
Agreement and any renewals, that property for either parking lot or
building purposes. Lessee must exercise any option by Thirty (30)
days from the date it is notified by Lessor that any additional
property is available. If Lessee does not exercise its option
regarding any particular addition parcel of land, said option will
be forever lost concerning such particular additional
parcel.
A-7.
Cancellation . Lessee, at its sole option, shall have the
right to cancel this Agreement in the event that, 1) casino style
garbing equivalent or greater to that presently allowed is
legalized within a Sixty (60) mile radius of the present Black Hawk
City Hall; or, 2) the provisions allowing casino style gaming
equivalent to that presently allowed are repealed or
restricted in any way. Any such cancellation will require Six
(6) months notice to Lessor. In the event of such
cancellation, Lessee’s interest in The Property will be
transferred to the Lessor in good operating condition with all
obligations paid through the cancellation date, and the Lessor will
refund Lessee’s deposit.
2
Moreover, this
Agreement will become null and void and of no further effect
between the parties.
A-8. Lessee’s
Possible Construction . It is specifically agreed the
Lessee has the right, during the term of this Agreement or any
renewal, to place, build, erect and maintain structures upon any
portion of The Property. Such structures may include, but are not
limited to, gaming casinos. Any and all costs for any and all
structures will be the Lessee’s. Any and all permits or
licenses necessary for any and all structures will be obtained by
the Lessee. Any and all construction upon The Property must meet
all zoning and building requirements and standards. Lessee agrees
that it will not allow any liens or encumbrances to attach to The
Property as the result of any construction. Lessee further agrees
to allow Lessor access to any construction site for the purpose of
Lessor posting notices to that affect. The Lessee acknowledges that
upon termination of this Agreement any structures upon The Property
will remain with The Property and become property of the Lessor.
The Lessor will not be required to pay or compensate Lessee for any
structures and Lessee acknowledges and assumes all cost risk
associated with construction of any structures upon the leasehold
estate which is the subject of this Agreement. Lessee agrees to
transfer its interest in any structures upon The Property to Lessor
upon termination of this Agreement for any reason. Lessor agrees to
accept without any further cost to Lessee, any structures upon The
Property transferred upon termination as long as they are in good
condition.
A-9. Previous Lease
Superseded . The Lower Lot Lease and all other previous
agreements between the parties concerning any portion of The
Property are entirely replaced and superseded in all respects by
this Agreement.
B.
ADDITIONAL AGREEMENTS
B-1.
Deposits . Both parties acknowledge that a deposit of
Twelve Thousand Dollars ($12,000.00) was paid by the Lessee to the
Lessor pursuant to the Lower Lot Lease the Lessor will continue to
hold this deposit without interest. Upon Lessee’s faithful
performance of the terms and conditions of this Agreement, and any
renewal, the Lessor will return said deposit, without interest, to
Lessee upon Lessor’s inspection of The Property, all of which
must occur within Sixty (60) days of the termination of this
Agreement or any renewal.
B-2.
Excavation and Wall Construction . Lessee, at its
sole cost, agrees to complete, all necessary excavation and
installation of necessary retaining walls, as may be needed for
Lessee’s use of any portion of The Property. The Lessee will
be allowed One Hundred Eighty (180) days from the date hereof as a
construction period for these activities, during which time the
rental rate will be reduced as set forth in paragraph A-2 above.
After expiration of the One Hundred Eighty (180) day construction
period, the rental rate shall increase as set forth in paragraph
A-2 notwithstanding whether the activities have been completed. If
after completion of these activities, and due to
3
reasons beyond the
Lessee’s control, the full amount of The Property is not
available for Lessee’s use, the Lessee may reduce the amount
of any rent payable by prorating the amount of the land available
to that contemplated by the above-stated property description. Land
not available because of its use for set back requirements and
subjacent support will not reduce the amount of The
Property.
B-3.
Taxes/Parking Fees . The rent hereinabove set forth for all
of The Property is the total rent for the term of this Agreement.
Lessor is not entitled to any royalty or any other
percentage payments. No additional changes shall be made for
Lessor’s insurance, taxes or other assessments associated
with The Property except those listed in this paragraph. During
1996 Lessee will pay when due one-half of the property taxes
assessed upon The Property for the year 1995. Beginning in the year
1997 and thereafter for the term of this Agreement or any renewal,
Lessee will pay when due all property taxes assessed upon The
Property for the preceding year, including those taxes assessed for
any improvements made by Lessee, except for any taxes in any way
associated with the cost of any street, sidewalk, curb, gutter,
street lighting or drainage improvements done independently or at
the behest of the City of Black Hawk. These property tax payments
described will continue through those taxes, or proportionate part
thereof, assessed for the final year, or proportionate part
thereof, of the leasehold. Lessee will also be responsible directly
to the City of Black Hawk, for that City’s private lot
parking fee, if any, during the term of this Agreement. Said fee is
currently four dollars ($4.00) per parking space per day.
B-4. Permits
and Zoning . Lessor represents and warrants no “Federal
404 Permits” are presently required for use of The Property
for surface parking lot purposes. Lessor further represents it is
currently processing any City of Black Hawk permits or zoning
requests necessary from use of The Property for surface parking lot
purposes. Lessee will be responsible for obtaining any other zoning
changes or permits needed to use The Property for other purposes.
Lessor will provide reasonable cooperation in obtaining any such
permits as necessary. If the Lessee is not successful in obtaining
only those City of Black Hawk permits and zoning considerations
necessary to use The Property for surface parking lot purposes
within Sixty (60) days of the date hereof Lessee at its sole
discretion may either terminate this Agreement without further
costs or accept Lessor’s indemnification for any losses
suffered by Lessee as a result of not having said permits and
zoning considerations.
B-5.
Warranties and Title Matters . Lessor warrants and
represents that marketable title to The Property and Lessor’s
right to rent The Property to Lessee is encumbered
and restricted by only the following:
1) That portion of The Property composed of
land within Lots 1 through 12, are encumbered by
certain documents related to a loan to Lessor made by the Bank of
Cherry Creek (“Bank”). Those documents (hereinafter
collectively “Security Documents”) include:
4
a) A Promissory
Note dated March 31, 1995 from the Bank to the Andrianakos
Partnership (“A-P’ship”);
b) A
Deed of Trust dated March 31, 1995 granted by the
A-P’ship, recorded at Book 579, Page 22 in the Gilpin
County Colorado records;
c) An Assignment of
Rents and Leases dated March 31, 1995 from the A-P’ship
to the Bank, recorded at Book 579, Page 26 in the Gilpin
County Colorado records;
d) A
Security Agreement dated March 31, 1995 from the
A-P’ship to the Bank; and
e) UCC Financing
Statements from the A-P’ship securing the Bank, recorded at
reception no. 952025364 of the Colorado Secretary of States office,
reception no. 9500037938 of the Denver County, Colorado records,
and Book 579, Page 94 of the Gilpin County Colorado
records.
2) The need to resolve
the following requirements:
a) Deeds or legal
proceeding disposing of any interest of Horace Humphrey, Jr.,
Robinson Reduction Co, William C. Fullerton, and Albert
Rogers;
b)
Deeds or legal proceedings disposing of the reservations contained
in the patents to the City of Black Hawk, recorded May 13,
1874, Book 56, Page 555, and July 21, 1877, Book 62,
Page 456;
e) Deeds or legal
proceedings disposing of any right of third parties in and to any
roadway crossing lots 1-4, Block 50, City of Black Hawk, as shown
on land survey plat made by Glenn A. True, recorded in the office
of the City Clerk and Recorder of Gilpin County, file no.
5-93-3;
d)
Deeds or legal proceedings disposing of the right-of-way across a
portion of The Property for the benefit of the Big Spring Mine as
reserved in the Deed from Horace Humphrey to Horace
Humphrey, Jr
| 
