REDEVELOPMENT PROJECT LEASE

Exhibit 10.3

REDEVELOPMENT PROJECT LEASE

BY AND BETWEEN

THE CITY OF EAST CHICAGO, INDIANA

AND SHOWBOAT MARINA PARTNERSHIP

REDEVELOPMENT PROJECT LEASE

     THIS REDEVELOPMENT PROJECT LEASE (“Lease”), made and entered into as of the 19th day of October, 1995, by and between the CITY OF EAST CHICAGO, DEPARTMENT OF REDEVELOPMENT, existing pursuant to Indiana Code 36-7-14 (the “City”) and SHOWBOAT MARINA PARTNERSHIP, an Indiana general partnership (“Tenant”),

WITNESSETH THE FOLLOWING:

Recitals:

     A. Pursuant to IC 36-7-14 and IC 36-7-25 (collectively, the “Act”), the Indiana General Assembly has authorized redevelopment commission to approve plans for and determine that geographic areas within redevelopment districts are redevelopment areas.

     B. The East Chicago Redevelopment Commission (the “Commission”), pursuant to the provisions of IC 36-7-14-41 and Resolution No. 1165 and 1166, established a redevelopment area within the East Chicago Redevelopment District known as the Lake Front Development Area (the “Area”) and adopted a redevelopment plan for the Area, which resolution and Plan were amended by Resolution No. 1213 (collectively, the “Plan”).

     C. The Commission has determined, in order to fulfill the purposes and objectives of the Plan, to acquire certain real property within the Area, and has acquired certain real property in accordance with the provisions of applicable law.

     D. The Commission has, pursuant to and in accordance with the provisions of the Act, offered the real property so acquired for lease and has received an offer from Tenant for the lease of said real property which is in accordance with offering documents and meets the requirements and fulfills the purposes and objectives of the Plan.

     E. The Commission has determined that the development of the Redevelopment Project (as defined herein) as proposed in Tenant’s offer will be beneficial to the citizens are taxpayers of East Chicago, Indiana, and that it is in the best interests of the citizens and taxpayers of the East Chicago Redevelopment District for the City to enter into a lease as set forth herein.

     F. Pursuant to and in furtherance of the foregoing, the parties desire to enter into this lease.

Lease Agreement

     NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants of the parties herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City hereby demises and lets to Tenant, and Tenant hereby leases from the City, the Leased Premises, for the term and upon the covenants, terms and conditions herein contained, and in connection therewith the parties now agree as follows:

ARTICLE I.

Leased Premises

      Section 1.01 . Description of the Leased Premises . The Leased Premises shall be and consist of certain real property described in Exhibit “A” attached hereto and incorporated herein by this reference and all rights, privileges, easements and other interests appurtenant to such Leased Premises (collectively called the “Leased Premises”). Upon the completion of any survey required or permitted hereunder, the legal description contained in Exhibit “A” shall be amended to reflect the legal description included in such survey to the extent such legal description differs from the description in Exhibit “A” attached hereto. To the extent required or permitted under this Lease, Tenant shall have the right to construct upon the Leased Premises any and all buildings, structures and improvements and to make any alterations thereof for the Redevelopment Project as described in Section 5.02.

      Section 1.02 . Leasehold Title Insurance . Prior to the Possession Date, Tenant may obtain a commitment issued by Chicago Title Insurance Company (the “Title Company”) for a leasehold policy of title insurance, in which commitment said insurance company shall agree that, after execution, delivery and recordation of a memorandum of this Lease and payment of the applicable premium, it will insure, for to be determined by Tenant Dollars ($      ) Tenant’s leasehold interest in the Leased Premises, subject only to current nondelinquent real estate taxes and such other matters as Tenant shall agree to in writing and with such policy endorsements as Tenant or any Provider may request. Tenant shall provide a copy of the commitment to City. In the event Tenant deems unacceptable any defect in title or other matter disclosed in such commitment or any refusal of the Title Company to agree to issue any policy endorsement (“Title Defect”), Tenant may either waive such Title Defect or may give written notice to City of such Title Defect, and City shall have fifteen (15) days in which to cure such Title Defect. In the event City fails to effect such a cure, Tenant may terminate this Lease by written notice to City and obtain a refund of any sums paid as rental to the date of such notice, or Tenant may waive such Title Defect.

      Section 1.03 . Boundary Survey . Prior to the Possession Date, Tenant may, at Tenant’s expense, obtain a boundary survey of the Leased Premises. Such survey shall be prepared to the standards for an Indiana Land Title Association Minimum Standard Detail Survey and shall

certify as to whether any portion of the Leased Premises is located within a flood hazard zone. Tenant shall provide a copy of the survey to City. Such survey shall contain such other certifications as Tenant or any Provider may request. In the event the survey discloses any matter that is unacceptable to Tenant, Tenant may either waive such matter or may give written notice to City of such unacceptable matter, and City shall have fifteen (15) days in which to cure such matter. In the event City fails to effect such a cure, Tenant may terminate this Lease by written notice to City and obtain a refund of any sums paid as rental to the date of such notice, or Tenant may waive such matter.

      Section 1.04 . Environmental Assessment . Prior to the Possession Date, Tenant may conduct such environmental assessments as it deems prudent in its sole discretion. Tenant shall provide copies to City of any such environmental assessments performed. If such assessments reveal environmental conditions that are not acceptable to Tenant, Tenant may terminate this Lease by giving notice thereof in writing to the City, if, within fifteen (15) days after notice of such condition, the City refuses to undertake a cure of such environmental condition. If the City undertakes a cure of any such environmental condition, it shall complete such cure diligently to the satisfaction of Tenant and any Provider.

      Section 1.05 . Covenants of the City . The City’s demise to Tenant hereunder is expressly made subject to the following:

	(a)		The lien of real estate taxes, if any, and all general and special governmental assessments, dues, charges and impositions not delinquent;
	(b)		All easements, restrictions, agreements, covenants and other matters of record to which Tenant consents in writing;
	(c)		The rights of the public to reasonable access to the marina basin adjacent to the real estate conveyed to the City by the East Chicago Park and Recreation Board pursuant to a Quitclaim Deed dated May 17, 1994 and the beach area located on the eastern portion of the such real estate, which areas shall be administered by the East Chicago Park and Recreation Department, which rights shall be incorporated in an appropriate easement(s) agreement among the City, the Tenant and the East Chicago Park and Recreation Board.

ARTICLE II.

Term

      Section 2.01 . Term and Holdover . The term of this Lease shall be deemed to have commenced on the date that Tenant receives from the Indiana Gaming Commission a certificate of suitability as authorized under regulations of said Commission (the “Commencement Date”). The parties shall execute a separate writing acknowledging the Commencement Date), which shall be recorded in the Office of the Recorder of Lake County, Indiana. This Lease shall continue to and including the thirtieth anniversary of the Commencement Date or the last day of any renewal term under Section 2.04 hereof, (the “Termination Date”), unless sooner terminated under the provisions of this Lease (the “Term”). In the event that Tenant remains in possession of the Leased Premises with the consent of the City after the expiration of this Lease, without any extension or renewal of the Term, Tenant shall be deemed to be a tenant from month-to-month, at a monthly rental of one-twelfth (1/12) the then current rental of the Leased Premises and subject to all other covenants, terms and conditions of this Lease, insofar as applicable to a month-to-month, tenancy. Such month-to-month tenancy shall be terminable by either party upon thirty (30) days written notice to the other, delivered as of and prior to the end of any calendar month. The exercise by Tenant of its right under Section 17.02 of this Lease to enter the Leased Premises during the sixty (60) day period following the expiration of this Lease for the purpose of removing of trade fixtures, business equipment and personal property from the Leased Premises to the extent permitted by Section 17.02 of this Lease shall not be deemed to constitute a holding over or create a tenancy from month-to month hereunder. Tenant shall, however, during such period continue to be bound by the duties, covenants and agreements of Tenant under this Lease, including, without limitation, the covenants and agreements relating to insurance and indemnification, excepting only the obligation to pay rent.

      Section 2.02 . Early Termination by Tenant . At any time subsequent to the eighth anniversary of the Commencement Date, in the event that Tenant, in its sole discretion, shall determine that it is no longer economically feasible to operate the Redevelopment Project, Tenant may terminate this lease upon ninety (90) days written notice to the City. Upon termination, the Tenant shall pay, in a lump sum, an amount equal to one year’s annual rental at the time of termination. The duties and obligation of the parties in the event of an early termination under this Section shall be the same as the duties and obligations of the parties set forth in this Lease upon expiration of this Lease at the end of its full term.

      Section 2.03 . License Contingency . The City acknowledges that the ability of Tenant to perform its obligations under this Lease is contingent upon Tenant acquiring from the State of Indiana a license to operate a riverboat gaming casino. In the event that (a) a person other than Tenant is issued such license or (b) Tenant has not received a certificate of suitability under the regulations of the Indiana Gaming Commission within three (3) years of the date of the Commencement Date, does not have its license renewed, or has its license revoked or suspended, either party may terminate this Lease by written notice to the other party. In the event the Lease is not so terminated, the obligations of the parties shall continue hereunder,

except that any obligations of Tenant hereunder relating to the operation of a riverboat gaming casino shall be suspended until such time, if any, that Tenant obtains a certificate of suitability, a renewal of its license, or the issuance of a license that has been suspended or revoked. In the event the Lease is terminated and all or a portion of the Leased Premises is subsequently leased to a person other than Tenant who has obtained a license to operate a riverboat gaming casino, Tenant shall be reimbursed by such new tenant for all its costs and expenses incurred in connection with the work described in Section 5.01 hereof, which costs shall be documented to the City’s reasonable satisfaction, and the City shall also use its good faith efforts to cause any new tenant of the Leased Premises to reimburse Tenant for all leasehold expenditures made by Tenant to the date of termination, including, but not limited to, rental payments made and the costs and expenses of all leasehold improvements, fixtures and equipment. Tenant reserves the right upon termination of the Lease for the reasons stated in the Section 2.03 to demolish or remove all leasehold improvements, fixtures and equipment constructed of installed by it, in which event the City shall have no obligation under the preceding sentence to seek reimbursement of the costs of leasehold improvements to the extent such have been demolished or removed.

      Section 2.04 . Renewal Terms . The term of this Lease may be extended for two (2) additional thirty (30) year terms at the election of the Tenant in writing, which election may be made at any time prior to the expiration of the then existing term.

      Section 2.05 . Early Possession . Tenant shall be entitled to exclusive possession of the Leased Premises from and after the Possession Date, and the parties shall be bound by the terms and provisions of this Lease from and after the Possession Date, provided that Tenant shall not be obligated to pay any annual rental payment (except for the 1/2 payment payable upon execution hereof as provided in Section 4.01) until the Commencement Date.

ARTICLE III.

Definitions

     The following terms, whenever appearing in this Lease with initial capital letters, shall have the respective meanings set forth or referred to in this Article III:

	(a)		“Condemnation Proceeds” shall mean the total aggregate award resulting from any condemnation proceedings with respect to the Leased Premises and Redevelopment Project, exclusive of any award to Tenant or any of its sublessees or licensees as an award for loss of business or moving expenses.
	(b)		“Construction Period” shall mean the period during which the Redevelopment Projects is initially constructed.
	(c)		“Constructive Total Taking” shall mean a taking in a condemnation proceeding of such scope that the remaining portion of the Leased Premises and

			Redevelopment project would be insufficient to permit the economically feasible operation of the Leased Premises and Redevelopment Project.
	(d)		“Environmental Laws” shall mean federal, state and local laws and implementing regulations, effective on or after the Commencement Date, relating to pollution or protection of the environment, including laws or regulations relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes into the environment (including without limitation ambient air, surface water, ground water or land), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminates, chemical or industrial, toxic or hazardous substances or wastes. Such laws shall include, but not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq (“CERCLA”), the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 3251, et seq . the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 466 et seq . (“Clean Water Act”), and Indiana Code, Title 13 - Environment, as amended.
	(e)		“Event of Default” shall have the meaning set forth in Section 11.01 herein.
	(f)		“Possession Date” shall mean the date upon which the City receives written notice from Tenant of Tenant’s election to take possession of the Leased Premises.
	(g)		“Redevelopment Project” shall have the meaning set forth in Section 5.02 herein.
	(h)		“Provider” shall mean an entity empowered to make loans, enter into other financing arrangements, own, lease, purchase or sell property or by any other means provide for buildings and other improvements and equipment on real estate, and the acquisition and disposal of interests in such buildings, improvements, equipment and real estate which furnishes to Tenant (its successors and assigns) the primary source of funds, buildings, improvements, equipment or other things secured by or in connection with any mortgage, assignment, lease, sublease, purchase subject to seller’s right of repurchase or other encumbrance, financing, sale or lease document or agreement whatsoever, relating to the financing, refinancing, construction, sale, lease or development of the Redevelopment Project.
	(i)		“Termination Date” shall have the meaning set forth in Article II herein.
	(j)		“Trustee” shall have the meaning set forth in Article XXII herein.
	(k)		“Unavoidable Delays” shall mean any delay in the achievement of any deadline required under this Lease by reason of fire, casualty, strikes, lockout, labor

troubles, failure of power, governmental authority, riots, insurrection, war or other reason of like nature, or failure of timely performance by the other party which delay, hindrance or prevention of performance is not within the reasonable control of the party obligated to perform and is not avoidable by reasonable diligence.

ARTICLE IV.

Lease Consideration

      Section 4.01. Rent . This consideration for this Lease shall be (a) an annual rental of Four Hundred Thousand Dollars ($400,000.00), subject to the adjustments as provided below, through the Term and any extension of the Term pursuant to Section 2.04 and (b) Tenant’s undertakings for the development of the Redevelopment project on the Leased Premises as described in Section 5.02. The annual rental shall be payable to the City on the Commencement Date and on each anniversary of the Commencement Date by check subject to collection at the address of the City specified in Article XX hereinbelow, provided that the first annual rental payment shall be paid one-half (1/2)upon execution of this Lease and one-half (1/2) upon the Commencement Date.

      Section 4.02 . Adjustments to Annual Rent . The annual rental payable hereunder shall be adjusted beginning on the third anniversary date of the Commencement Date and on the same date of every third year thereafter, each such date being called a Rental Adjustment Date. Such adjustments shall be based upon increases in the Consumer price Index (hereinafter the “Index”), all items, published by the Bureau of Labor Statistics, United States Department of Labor. In computing the rental adjustment for each Rental Adjustment Date (the “Current Rental Adjustment Date”) the Index last published preceding the last preceding Rental Adjustment Date (the “Prior Rental Adjustment Date”) or preceding the Commencement Date in event of the first adjustment), shall be the base Index for purposes of calculating the annual rental for the three (3) year period commencing on the Current Rental Adjustment Date. Any increase in the Index from the base Index to the Index last published preceding the Current Rental Adjustment Date shall be computed as a percentage and the annual rental to be paid by Tenant during the three (3) year period commencing on the Current Rental Adjustment Date shall be the annual rental payable by Tenant for the period immediately prior to the Current Rental Adjustment Date multiplied by the sum of One Hundred Percent (100%) plus such change in the Index; but shall in no event be less than the annual rental payable by Tenant for the period immediately prior to the Current Rental Adjustment Date. Notwithstanding the foregoing the rental adjustment made for any Rental Adjustment Date shall not exceed. One Hundred Five Percent (105%) of the annual rental determined on the Prior Rental Adjustment Date (or the Commencement Date in the event of the first adjustment).

ARTICLE V.

Construction of Redevelopment Project

Section 5.01. The City’s Assistance .

(a)

The City shall in good faith take all procedural steps that are reasonably and lawfully required and necessary to enable the Tenant, its sublessees and/or a not-for-profit building corporation to finance and construct a breakwall, public parking facility, roadwork for ingress and egress and utilities (sewer, water, gas, electric, etc.) to the Redevelopment Project. The parties acknowledge that such activity is to be financed through a lease financing under applicable Indiana statutes.

Section 5.02. Redevelopment Project . The “Redevelopment Project” shall mean:

	(a)		The development and construction of a first class riverboat casino to be developed and operated by Tenant, as licensed to do so under the provisions of IC 4-33, which may include land-based facilities, including, but not limited to restaurants, entertainment facilities and parking areas, and other facilities or uses necessary and desirable for the operation of the riverboat casino, all in accordance with the provisions of the Lakefront Development Area Redevelopment Plan, as amended, and substantially in accordance with Tenant’s bid submitted to City on August 9, 1994.
	(b)		Any and all buildings, structures, improvements, fixtures, equipment and appurtenances necessary or incidental to the construction, maintenance and operation of the project described in paragraph (a) and any alterations thereof.

      Section 5.03. Completion of the Redevelopment Project . Tenant shall within one hundred eighty (180) days after receipt of a certificate of suitability from the Indiana Gaming Commission cause the commencement of construction of the Redevelopment Project and diligently pursue such construction to completion in a good and workmanlike manner. Tenant shall use its best efforts to cause the construction of the Redevelopment Project to be completed to such an extent that subject to Unavoidable Delays (which shall not include failure to obtain financing), the Redevelopment Project is substantially ready for operation no later than eighteen (18) months following the receipt of such certification of suitability (the “Substantial Completion Date”). In the event the Redevelopment Project is not substantially ready for operation by the Substantial Completion Date, Tenant agrees to pay to City, as liquidated damages, the sum of $250,000.00 per month until the Redevelopment Project is substantially ready for operation, it being agreed between the parties that actual damages to the City for such failure cannot be determined; provided, however, that Tenant shall not be liable for the payment of such liquidated damages if it has, prior to the Substantial Completion Date, opened a temporary riverboat gaming casino for operation.

      Section 5.04. Compliance with Laws. Insurance Policies . Tenant shall cause the construction of the Redevelopment Project, and the same to be constructed and completed, in compliance with all requirements of law (including Environmental laws and building codes) and all ordinances, regulations, rules or orders of any public agency or authority relating thereto. Tenant shall provide evidence of insurance coverages, in the form of certificates of new policies or endorsements to existing policies, showing Tenant to be insured during the period of construction, under policies providing the coverages required under Article XII hereinbelow, and naming the City as an additional insured, as appropriate. Tenant shall comply with all requirements and conditions of such policies to ensure continuation of the same throughout the course of the construction of the Redevelopment Project.

ARTICLE VI.

Mortgages: Financing Documents and Liens

      Section 6.01. Fee Mortgages or Liens . The City hereby covenants and agrees that during the term of this Lease (and any extension or renewal hereof), the City shall not mortgage, pledge or otherwise create, security interests or other liens or encumbrances upon or affecting the City’s fee estate in the Leased Premises or its reversionary interest in the Redevelopment Project, or any part thereof which is superior to the interest of Tenant or the Provider or encumbers the interests of Tenant, except with the prior written consent of Tenant and the Provider except for such liens as may be created by stature or law; provided that such liens or encumbrances are in all events subordinate to the interests of Tenant hereunder and the interests of any tenant under any lease entered into pursuant to 6.03(f) herein.

      Section 6.02. Leasehold and Project Financing Documents . Tenant and every successor and assignee of Tenant shall have the right, at any time and from time to time, without the City’s consent, to mortgage, assign, lease, sublease, sell with right to lease back or repurchase or otherwise pledge or hypothecate its entire interest under this Lease or the entirety of the Leased Premises and the Redevelopment Project, in each case as collateral security for or in connection with any loan or other furnishing of funds, building construction, futures or equipment, from the Provider, to finance or refinance its interests in the Leased Premises and the Redevelopment Project or to obtain fixtures, equipment or construction in connection with the Redevelopment Project provided, that the primary security for such financing or refinancing or such construction or provision of fixtures or equipment shall consist of Tenant’s interests in the Leased Premises and Redevelopment Project and the income therefrom together with letters of credit, cash collateral accounts, guarantees and similar credit-enhancement documents.

      Section 6.03. Notices and Rights Upon Default . Tenant shall provide the City with conformed copies of any and all encumbrances or financing documents given upon its interest in the Leased premises and the Redevelopment Project, and shall give the City written notice of the name and address of the Provider involved in any such transactions. If the foregoing information has been provided to the City, the City agrees that so long as any such encumbrance

or financing document shall remain in satisfied of record or until written notice of satisfaction is given to the City by such Provider, the following provisions shall apply:

	(a)		Contemporaneously with any notice by the City to Tenant, the City shall serve upon such Provider a copy of each notice given to Tenant under this Lease. No such notice shall be effective as against such Provider unless and until a copy thereof is served upon such Provider.
	(b)		In the case of any Monetary Event of Default (as such term is defined in Article XI of this Lease), the City shall not terminate this Lease until thirty (30) days after the later of (a) expiration of Tenant’s applicable cure period, or (b) receipt by such Provider of its copy of any such notice to remedy or cause to be remedied the Monetary Event of Default which is the basis of the notice; and further provided, that said thirty-day period shall be extended by a time commensurate with any period during which the said Provider cannot take action against Tenant or the Leased Premises on account of the stay under § 362 of the Bankruptcy Code or comparable provision under any future laws relating to the protection of debtors. The City shall accept performance by such Provider as performance by Tenant. If Tenant has had its license revoked or denied, the City may terminate this Lease under Section 2.03 without regard to this paragraph (b).
	(c)		In the case of any Non-Monetary Event of Default or Bankruptcy Event of Default (as such terms are defined in Article XI of this Lease), the City shall not terminate this Lease without first giving to the Provider a reasonable time within which to cure such default, if possible, or to institute and complete foreclosure or other appropriate legal or equitable proceedings, obtain possession of the Leased Premises (including possession by a receiver), or otherwise acquire Tenant’s estate under this Lease. In the case of a Bankruptcy Event of Default, such default shall be deemed to be cured upon the Provider completing such proceedings or otherwise obtaining Tenant’s estate under this Lease. In the case of any Non-Monetary Event of Default, the Provider shall have forty-five (45) days from the date on which it obtains possession and control of the Leased Premises to cure the Non-Monetary Event of Default, provided, that, if the Non-Monetary Event of Default is susceptible of being cured only by any such Provider’s acquisition of title to Tenant’s estate under this Lease, such Provider shall have forty-five (45) days from the date on which such title is acquired by any of them to cure such Event of Default. In the event that it is not possible to effect such cure within said forty-five (45) day period shall be extended as necessary to effect such cure so long as any such Provider gives the City notice of intention to cure with a written proposal outlining the action the Provider intends to take and a schedule (timetable) therefor (the “Cure Proposal”) and commences efforts to cure within said period and thereafter continuously and diligently pursues the same to completion in accordance with the Cure Proposal.

			The provisions of this paragraph (c) of this Section 6.03 are conditioned on such Provider promptly commencing and diligently pursuing to completion appropriate legal or equitable proceedings against the Leased Premises or otherwise attempting with reasonable diligence to obtain possession of the Leased Premises and/or Tenant’s estate under this Lease. The right of the Provider under this paragraph (c) shall be exercisable concurrently, not sequentially. For purposes of this paragraph (c), possession of the Leased Premises by a receiver or trustee in bankruptcy shall not be deemed possession by the Provider.
	(d)		Such provider shall not be required to continue possession or continue foreclosure proceedings under this Section 6.03 if the particular Event of Default has been cured by Tenant.
	(e)		No amendment, modification, surrender or cancellation of this Lease (other than a termination by the City in compliance with the conditions of this Article VI or except as may be permitted pursuant to Section 2.02 or 2.03 hereof) shall be effective without written approval of the Provider of which the City has been given notice as provided above; and so long as such Provider shall have an interest of record in the Leased Premises and/or Redevelopment Project, no unification of the respective interests of the City and Tenant therein in any one person or entity (other than a termination of this Lease by the City in compliance with the conditions of this Article VI or except as may be permitted pursuant to Section 2.02 or 2.03 hereof) shall be deemed to create a merger of such interests. The City and Tenant shall not enter into any agreement modifying, canceling or surrendering this Lease without the prior written consent of such Provider.
	(f)		In the event of the termination of this Lease for any reason prior to the expiration of the Term, whether by summary proceedings to dispossess service of notice to terminate or otherwise, the City shall serve upon the Provider of which the City has been given notice as provided above a written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination and of all other defaults, if any, under this Lease then known to the City. To the extent then permitted by law, such Provider shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions:

	(i)		Upon the written request of such Provider, within thirty (30) days after service of such notice that the Lease has been terminated, the City shall enter into a new lease pursuant to the next paragraph for the Leased Premises and Redevelopment Project with such Provider (or its designee).
	(ii)		Such new lease shall be entered into at the cost of the tenant thereunder, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the Term and at the rent and upon all the agreements,

terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease. Upon the execution of such new lease, the tenant named therein shall pay any and all sums which at the time of the execution thereof shall be due under this Lease but for such termination:

	(g)		Any notice or other communication which the City shall desire or is required to give or to serve upon the Provider of which the City has been given notice under this Lease shall be in writing and shall be served by Registered or Certified Mail, return receipt requested, addressed to such Provider at its address as set forth in any encumbrance of financing document, or in the last assignment thereof delivered to the City pursuant to this Article VI, or at such other address as shall be designated by such Provider by notice in writing given to the City.
	(h)		Any notice or other communication which such Provider shall desire or is required to give to or serve upon the City shall be deemed to have been duly given or served if sent by Registered or Certified Mail to the City in accordance with Article XX of this Lease or at such other addresses as shall be designated by the City by notice in writing given to such Provider by registered mail.

      Section 6.04 . Provider’s Liability . If the Provider shall acquire title to Tenant’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure, or by any other legal or equitable proceedings, or by an assignment from a nominee or wholly owned subsidiary corporation of such Provider, or under a new lease pursuant to this Article VI, such Provider may assign such lease to a person holding a license to operate a riverboat gaming casino and shall have no liability for the performance of observance of the covenants and conditions in such lease contained on Tenant’s part to be performed and observed from and after the date of such assignment. Any Provider acquiring title to Tenant’s interest in this Lease shall be required within 12 months thereafter to either obtain a license to operate a riverboat gaming casino or to assign the Lease to a person holding such a license, and, in the event such Provider fails to so obtain a license or assign the Lease within such time period, this Lease shall automatically terminate.

      Section 6.05 . No Obligation to Cure . Nothing contained in this Lease shall require the Provider to cure or undertake to cure any default of Tenant, unless and until such Provider elects to exercise any right under the foregoing Section 6.03 as to which such cure or undertaking to cure is a condition.

      Section 6.06 . Notice to the City . Tenant shall provide the City written notice of any default by Tenant pursuant to any encumbrance or other financing documents upon or against Tenant’s interest in the Leased Premises and Redevelopment Project, and Tenant shall obtain the agreement of the Provider that said Provider will provide the City with notice of any default by Tenant of its agreements with the Provider. Tenant shall also attempt in good faith to obtain

the agreement of the Provider to accept any cure tendered by the City (without obligation of the City to undertake any such cure) of any such default.

      Section 6.07. Further Assurances. The City hereby covenants and agrees to execute such additional documents and to take such additional actions as the Provider may reasonably require to further assure, implement and give effect to the security of such Provider under any encumbrance or financing document which such Provider and Tenant may hereafter enter into in connection with the financing or refinancing of the costs of the Redevelopment Project, subject, however, to the provisions of Section 6.02 of this Lease and provided that the form and substance of such documents are reasonably satisfactory to the City or that such actions do not adversely affect the City.

ARTICLE VII.

Discharge of Liens

      Section 7.01. Covenant Against Liens. Tenant shall not create or permit to be created or to remain, and shall promptly discharge, any mechanic’s, laborer’s or materialmen’s lien or any conditional sale agreement, title retention agreement or mortgage, which might be or become a lien, encumbrance or charge upon the Leased Premises or any part thereof having any priority or preference over or ranking on a parity with the estate, rights and interests of the City in the Leased Premises or any part thereof.

      Section 7.02. Contesting of Liens. If any mechanic’s, laborer’s or materialmen’s lien shall be filed at any time against the Leased Premises or any part thereof, Tenant shall cause the same to be discharged of record within sixty (60) days after notice of the filing thereof by payment, deposit, bond or order of a court of competent jurisdiction; provided, that Tenant shall have the right to contest the validity of such lien in any manner permitted by law, so long as Tenant shall provide to the City title insurance, bond or other assurance or security in an amount equal to one hundred percent (100%) of the amount of the claim, if and to the extent that the claimed lien has, or lawfully may, attach to or adversely affect the City’s interest in the Leased Premises, and shall thereafter diligently proceed to cause such lien to be removed or discharged. If Tenant shall fail to discharge or seek to discharge any such lien affecting the Leased Premises, then the City may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due or by procuring the discharge of such lien by depositing in court a bond for the amount claimed, or by giving security in such other manner as is, or may be permitted by law, and Tenant shall reimburse and indemnify the City in respect thereto, together with all costs, including attorneys’ fees related thereto or incurred in connection therewith.

ARTICLE VIII.

Assignments and Subleases

      Section 8.01. Assignment and Sublease. Tenant may assign its interest in this Lease to a person who has obtained a license to operate a riverboat gaming casino, a not-for-profit building corporation, a Provider or a Trustee and may sublease or permit to be Sub-subleased all or any part of the Leased Premises all without the consent of the City, provided that any assignment to a Provider or Trustee shall terminate and be of no effect, if within twelve (12) months of such assignment, such Provider or Trustee has been unable to further assign the Lease to a person that has obtained a license to operate a riverboat gaming casino or has failed to obtain such a license on its own behalf, and such limitation shall be stated on any document assigning such Lease. A trustee in bankruptcy shall be permitted to assign this Lease for a period of twelve (12) months following its assumption of the Lease to a person that has obtained a license to operate a riverboat gaming casino or to any other person approved by the City. Any assignment of Tenant’s entire interest in the Lease shall to the extent required by law, be subject to the approval of the Indiana Gaming Commission.

      Section 8.02. Tenant’s Liability Upon Assignment. Notwithstanding the assignment of the Lease by Tenant, Tenant shall remain liable for the performance of all of the obligations of Tenant under the Lease, until such assignee has obtained a license to operate riverboat gaming casino.

ARTICLE IX

      Section 9.01. Use by Tenant. The Leased Premises shall be used primarily for the construction, development and operation of the Redevelopment Project as described in Section 5.02 above, and secondarily for incidental uses reasonably related thereto of the nature enumerated in Section 5.02(b) of this Lease, or in the event the Provider has an interest herein under circumstance permitted by Section 6.02 of this Lease and obtains possession of the Leased Premises and the Redevelopment Project, for the operation of a riverboat gaming casino and for related incidental uses by such new lessee.

      Section 9.02. Compliance with Laws, Insurance Policies etc. Through the Term, Tenant, at its sole cost and expense, shall promptly comply with all present and future laws (including Environmental Laws, building and zoning laws), ordinances, orders, rules, regulations and requirements of all federal, state and municipal governments, departments, commissions, boards and officers, including, out not limited to the Indiana Gaming Commission, and all orders, rules and regulations of the National Board of Fire Underwriters, the Indian Board of Fire Underwriters, or any other body or bodies exercising similar functions, which may be applicable to the Leased Premises, or to the use or manner of use of the Leased Premises, or to the owners, tenants or occupants thereof; provided, that Tenant shall be entitled to contest in

good faith by appropriate proceedings any such legal requirements unless and until such contest shall subject the City to any penalty or sanction, and until such time as a final determination is made with respect to such legal requirements or until the City is subjected to a penalty or sanction for Tenant’s noncompliance, Tenant shall not be deemed to be in default under this Section 9.02. Tenant shall indemnify and hold the City harmless against all penalties, sanctions, costs, expenses, liabilities, claims, actions and causes of action, including attorneys’ fees caused by Tenant’s contesting of any proceedings or charge under this Section 9.02 Tenant shall likewise observe and comply with the requirements of all policies of insurance required to be supplied coverage, or cancellation thereof.

      Section 9.03 Covenant Against Waste . Tenant shall not do or suffer any waste to the Leased Premises or Redevelopment Project or any part thereof or any property adjacent thereto, or allow the Leased Premises or Redevelopment Project to be used in violation of a certificate of occupancy, if any, covering or affecting the use of the Leased Premises or Redevelopment Project or any part thereof, or in any manner which may, in law, constitute a nuisance, public or private. Tenant shall not permit use of any portion of the Leased Premises by the public or any third person. Tenant shall not allow the Leased Premises to be used so as to violate the Environmental Laws, including the “release” or “threatened release” of any “hazardous substance,” “pollutant” or “contaminant,” as those terms are defined in CERCLA, in, at or upon the Leased Premises.

ARTICLE X.

Repairs and Maintenance

     Throughout the Term, Tenant at its sole cost and expense, shall maintain the Leased Premises and Redevelopment Project in good repair and order and in safe and clean condition and shall make, from time to time, all necessary repairs, renewals and replacements thereof. In no event shall the City be required to make any repairs, improvements, additions, replacements, reconstructions or other changes to the Leased Premises or Redevelopment Project or perform any maintenance thereon during the Term.

ARTICLE XI.

Default Provisions

      Section 11.01 . Events of Default . Any of the following shall constitute an “Event of Default” hereunder:

(a)

If Tenant shall fail or refuse to pay when due any rent or any other sum or charge payable under this Lease, and such default shall continue for a period of thirty (30) days after notice from the City to Tenant specifying the items in default (herein called a “Monetary Event of Default”):

	(b)		If Tenant shall fail or refuse to perform or comply with any of the agreements, terms, covenants or conditions provided in this Lease (other than those referred to in the foregoing paragraph (a) or the following paragraph (c) of this Section) for a period of thirty (30) days after notice from the City to Tenant specifying the items in default; provided, however, that in the event such failure by its nature or due to Unavoidable Delays cannot be cured within such thirty (30) day period, then such thirty (30) day period shall be extended until such failure is cured, so long as Tenant gives the City notice of intention to cure with a written proposal outlining the action Tenant intends to take and a schedule (timetable) therefor (“Tenant’s Cure Proposal”) and commences its efforts to cure within such period and thereafter continuously and diligently (subject to Unavoidable Delays) pursues the same to completion in accordance with Tenant’s Cure Proposal (herein collectively called a “Non-Monetary Event of Default”): or
	(c)		If (i) Tenant shall be adjudicated to be bankrupt or insolvent, or (ii) Tenant shall make an assignment for the benefit of creditors or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present Bankruptcy Code or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency state law, or (iii) Tenant shall seek, consent to or acquiesce in the appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Leased Premises, or (iv) within sixty (60) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present Bankruptcy Code or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law, such proceeding shall not have been dismissed or such appointment shall not have been vacated or stayed (herein collectively called a “Bankruptcy Event of Default”):

then and in any such event, Tenant’s rights under this Lease shall terminate (subject, however, to the rights of the Provider to notice and cure provided for in Article VI of this Lease) sixty (60) days after the election of the City, made in writing to Tenant no more than sixty (60) days after the later of such event or the expiration of any applicable cure period, to terminate this Lease, and upon such election and the expiration of such ten (10) day period the rights of Tenant to the use and possession of the Leased Premises under this Lease, including such rights under any extension privileges whether or not exercised, shall expire and terminate (subject, however, to the rights of the Provider to notice and cure provided for in Article VI of this Lease).

      Section 11.02 . Surrender . Upon any such termination of Tenant’s rights under this Lease pursuant to Section 11.01, hereof, Tenant shall quit and peacefully surrender the Leased Premises to the City in accordance with the provisions of Section 17.01 hereof.

      Section 11.03 . No Waiver . No failure by either the City or Tenant to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof shall constitute a wavier of any such breach or of such agreement, term, covenant or condition. No agreement, term, covenant or condition hereof to be performed or complied with by the City or Tenant, as the case may be shall be altered or modified except by a written instrument excited by the City and Tenant. No waiver of any breach shall affect or alter this Lease, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.

      Section 11.04 . Cumulative Remedies . Each right and remedy provided for in this Lease shall be cumulative and shall be in addition to every rights or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of this exercise by the City or Tenant of any such rights or remedies shall not preclude the simultaneous or later exercise by the party in question of any such rights or remedies, except as otherwise expressly provided in this Lease. The provisions of this Article XI are hereby expressly made subject to the provisions of Article XX and the rights and remedies of the Provider under Article VI.

ARTICLE XII.

Insurance

      Section 12.01 . Tenant’s Liability Insurance . From the Possession Date and throughout the Term, Tenant shall maintain in force the following types and amounts of liability insurance, covering Tenant and, during any period in which construction, renovation, alteration or substantial repair work is being performed by third parties on the Redevelopment Project, Tenant’s construction contractors, subcontractors and agent, as appropriate; and at all times naming the City as an additional insured

     (a)   Comprehensive General Liability Insurance (“Occurrence” Form) :

	(i)		Basic coverage and limits: Bodily injury, including death resulting therefrom, and Property Damage to a Combined Single Limit of $1,000,000 per occurrence. A $1,000,000 annual aggregate limit applies to Premises-Operations Property Damage Liability and to the hazards of Products/Completed Operations and Contractual Liability.
	(ii)		Extensions of coverage to include: Blanket contractual liability for written or oral contracts; Broad form property damage; Blanket explosion, collapse and underground coverage.

(b)

Umbrella Excess Liability :

(i)

Limits :

	(A)		Bodily Injury, Personal Injury and Property Damage to a limit of $5,000,000 per occurrence excess of the primary Comprehensive General Liability and Employer’s Liability, subject to a Project aggregate limit for all insured interests of $5,000,000 excess of the Primary annual aggregate limits.
	(ii)		Coverage: Includes all underlying extensions of coverage.

(c)

Changes in Limits : Notwithstanding the foregoing, and so long as City is named as an additional insured on Tenant’s liability insurance, the policy limits of Tenant’s insurance for tort claims shall not be less than the maximum liability of the City for tort claims under the Indiana Tort Claims Law (IC 34-4-16.5), as the same may be amended from time to time.

      Section 12.02 . Automobile Liability Insurance . Throughout the Term, Tenant shall maintain in force, in its own name only and not in the name of the City or other third parties, automobile liability insurance covering the use of all owned, non-owned and hired vehicles, with bodily injury and/or property damage liability limits of $1,000,000 (combined single limit per accident).

      Section 12.03 . Tenant’s Workers’ Compensation and Employer’s Liability Insurance . Throughout the Term, Tenant shall maintain the following amounts of workers, compensation and employer’s liability insurance, covering Tenant and, during any period in which construction, renovation, alteration or repair works being performed by third parties on the Redevelopment Project, Tenant’s construction contractors, subcontractors and agents, as appropriate, and at all times naming the City as an additional insured.

	(a)		Coverage A- Statutory Benefits: Liability imposed by the Workers, Compensation and/or Occupational Disease statute of the State of Indiana and any other state or governmental authority if related to the work performed on the Redevelopment Project.
	(b)		Coverage B- Employer’s Liability Limits of $1,000,000 Bodily Injury by accident                 $1,000,000 Bodily Injury by disease, and                 $1,000,000 Policy Limit by disease.
	(c)		Extensions of Coverage to include: Broad Form All States Endorsement

Sixty (60) days notice of cancellation.

      Section 12.04 . Tenant’s Casualty-Loss Insurance . During the period of original construction of the Redevelopment Project, and during any period in which construction, renovation, alteration or repair work is being performed by third parties on the Redevelopment Project, Tenant shall maintain in force builder’s “all risk” property damage coverage to protect Tenant, its construction contractors, subcontractors and agents, as appropriate, and naming the City as an additional insured.

     At all times during the Term, Tenant shall maintain in force, through such builder’s all-risk coverage or through separate casualty-loss policies, insurance covering the Leased Premises and the Redevelopment Project, including all equipment in or apartment to the Leased Premises or Redevelopment Project essential to the operation and maintenance of the buildings (as distinguished from equipment for operation of the business conducted upon the Leased Premises) and all alterations, changes or additions thereto, naming the City, the Provider and Tenant, as their respective interests may appear, as insureds and insuring the Leased Premises and the Redevelopment Project against loss or damage by fire or other casualties covered by customary extended coverage endorsements, in such amounts as Tenant determines.

      Section 12.05 . Proof of Insurance . All insurance provided for in this Article XII shall be effected under valid and enforceable policies, issued by insurers of recognized responsibility authorized to do business in Indiana Upon the execution of this Lease, and thereafter not less than fifteen (15) days prior to the expiration dates of any expiring policies theretofore furnished pursuant to this Article XII, originals of the policies (or, in the case of general public liability insurance, certificate of the insurers), shall be delivered by Tenant to the City bearing notations evidencing the payment of premises or accompanied by other evidence satisfactory to the City of such payment; except, that whenever the Leased Premises shall be subject to any mortgage may or other form of financing instrument to secure any debt of Tenant, such policies of insurance may be lodged with the Provider until the mortgage debt shall be paid, and certificates of such policies shall meanwhile be delivered to the City.

      Section 12.06 . Notice of Cancellation . The insurance required by this Article XII shall contain a provision (to the extent that such provision is commercially available) that coverages afforded under the policies will not be canceled, not renewed or materially changed until sixty (60) days prior written notice has been given to both the City and Tenant and any other persons named as insured thereunder.

      Section 12.07 . Adjustment in Insurance . Tenant shall provide such insurance, with such coverages and in such amounts, as may be agreed upon from time to time between Tenant and the Provider.

      Section 12.08 . Waiver of Subrogation . The City and Tenant waive all rights against each other and against these for whom the other is legally liable for (i) all losses or damages covered by insurance provided for under this Article XII to the extent the upper limits of such

insurance are adequate to cover such damages, it being the intent of this clause to allocate all risk of such loss to such insurance and (ii) for all losses and damages which are not covered by insurance but which could have been insured against by the insured. If the policies of insurance provided under this Article XII require an endorsement to provide for continued coverage where there is waiver of subrogation, Tenant will cause such policies to be so endorsed.

      Section 12.09. Application of Proceeds for Redevelopment Project. The proceeds of any and all policies of insurance upon the Redevelopment Project maintained pursuant to Section 12.04 of this Article XII shall be used as a trust fund toward the repair, reconstruction, replacement or rebuilding of the Redevelopment Project. Accordingly, all such policies of insurance shall provide that, as to any loss in excess of $ 500,000,00 , all proceeds payable at any time and from time to time by any insurance company under such policies shall be paid to the Trustee for the benefit of Tenant, the City, the Provider and any other person or entity having any interest under any such policy and applied by such Trustee as provided in this Lease. Tenant shall pay the reasonable charges of the Trustee for its services hereunder. The City, Tenant, the Provider and any other person or entity having an interest under any such insurance policy shall cooperate or with and aid the Trustee in collecting any and all insurance money and will execute and deliver as requested by the Trustee any and all proofs, receipts, releases and other instruments whatsoever which may be necessary or proper for such purpose. In the event that any person having an interest under any such insurance policy shall fail or neglect to cooperate or to execute, acknowledge and deliver any such instrument, the Trustee may, as the agent or attorney-in-fact of any such person, execute and deliver any proofs of loss or any other instruments as may seem desirable to the Trustee for the collection of such insurance moneys, and all such person or entities having obtained an interest in any such insurance policy shall be deemed to have irrevocably nominated constituted and appointed the Trustee its proper and legal attorney-in-fact for such purpose. As to all other policies, the proceeds shall be paid to the insured party or parties as their interests shall appear and in proportion to their respective insured losses.

      Section 12.10 . Special Provisions. If reasonably obtainable, all such policies of insurance maintained pursuant to Section 12.01 and 12.03 hereinabove shall provide that the proceeds thereof shall be payable without regard to any fault or negligence of the City, Tenant, any contractor or agent of Tenant or any other person or entity having an interest under any such policy which may have caused or contributed to such loss and without my rights of the insurance company of sot-off, counterclaim or deduction against the City or Tenant.

      Section 12.11 General Provisions. In the event Tenant shall fail or refuse to obtain any insurance required by this Article XII, the City may obtain such insurance. The costs of such insurance shall constitute additional rent payable by Tenant upon demand by the City.

 

ARTICLE XIII.

Indemnification

      Section 13.01 . Indemnification by Tenant. Subject to the provisions of Section 12.08 and regardless of whenever separate, several, joint or concurrent liability may be imposed upon the City, Tenant shall, but only to the extent permitted by law, at its sole cost and expense, indemnify and save harmless the City and any member, officer, director agent, partner, trustee or employee thereof against and from any and all claims, liability and damages arising from or in connection with (a) Tenant’s possession, use or control of the Leased Premises or the Redevelopment Project, (b) any occurrence or circumstance on or related to the Leased Premises or Redevelopment Project (including the loss or damage to any property, including the Leased Premises, the injury to or death of any person, or the contamination of or adverse effects on the environment, which result from any pollutant or from any chemical, hazardous or toxic substances or wastes remitted from or discharged by the Redevelopment Project while occupied by Tenant), or (c) Tenant’s breach of any covenant or obligation under this lease, other than claims, liability or damages arising form failure of the City to perform or the negligence of the City in the performance of , any of its obligations hereunder or arising out of any willful acts of the City. The indemnification provided by this Section 13.01 shall include all costs, counsel fees, expenses and liabilities incurred in connection with any such claim, action or proceeding brought thereon; and. In case any action or proceeding shall be brought against the City by reason of any such claim, Tenant, upon written notice from the City, shall defend such action or proceeding. The terms of this Section 13.01 shall survive any termination of this Lease.

      Section 13.02 . Indemnification by the City . Subject to the provision 12.08 and regardless of whether separate, several, joint or concurrent liability may be imposed upon Tenant, the City shall, but only to the extent permitted by law, at its sole cost and expense, indemnify and save harmless Tenant and the Provider from and against any all claims, liability and damages arising from the sole negligence of the City or arising out of any willful acts of the City. The indemnification provided by this Section 13.02 shall include all costs, counsel fees, expenses and liabilities incurred, in connection with any such claim, action or proceeding brought thereon. In case any action or proceeding shall be brought against the city by reason of any such claim, Tenant upon written notice from Tenant or such Provider shall defend such action and proceeding. The terms of this Section 13.01 shall survive any termination of this Lease.

ARTICLE XIV.

Casualty Damage

      Section 14.01 . Tenant’s Obligation to Repair . In the event that, at any time during the Term, the Redevelopment Project shall be destroyed or damaged in whole or in part by fire or other cause within the extended coverage of the casualty insurance policies or builder’s risk policies required to be maintained by Tenant in accordance with Article XII of this Lease, then

 

Tenant shall cause the same to be repaired, restored, or rebuilt within a period of time which, under all prevailing circumstances, shall be reasonable. In the repair or restoration of the Redevelopment Project under this Article XIV, Tenant will, as nearly as practicable, repair, restore, replace or rebuild the Redevelopment Project so damaged or destroyed to the condition and character of the Redevelopment Project existing immediately prior to such occurrence, subject to applicable zoning and building laws then in existence. Tenant shall be entitled to apply all insurance proceeds of policies maintained to pursuant Article XII of this Lease remaining after any required payments to the Provider to such repair, restoration, replacement and rebuilding. Tenant shall notify the City in writing of any payments (whether total or partial) made of insurance proceeds. If the insurance proceeds recovered in respect of any such insured damage or distraction, less any cost of recovery and any amounts required to be applied to repayment of the Provider, shall be insufficient to pay the entire cost of such repair, restoration, replacement or rebuilding, Tenant may bear the cost of such deficiency or in lieu of undertaking such repair, restoration, replacement or rebuilding, terminate this Lease upon written notice to the City. The time within which Tenant must perform any obligations under this Section 14.01 shall include a reasonable time to obtain and close the necessary equity or mortgage loan or other financing to cover any deficiency that Tenant agrees to bear.

      Section 14.02 . Disbursement of Insurance proceeds in the Event of Repair by Tenant . The Trustee shall permit any insurance proceeds paid to it to be applied in payment of the cost of such repair, restoration, replacement and rebuilding of the Redevelopment Project by Tenant pursuant to the foregoing Section 14.01 as the same progresses, payments to be made against applications for payment properly certified by Tenant’s supervising, architect or other appropriate certifying official. The Trustee shall contribute out of such insurance proceeds with respect to each such certified application for payment an amount in proportion to such payment as the whole amount received by the Trustee shall bear to the total estimated cost of repairing or rebuilding the Redevelopment Project. If the insurance proceeds should exceed the cost of repairing or rebuilding the Redevelopment Project, the Trustee shall pay the balance remaining after payment of the cost of repairing or rebuilding the Redevelopment Project to Tenant. The Trustee may deduct from any insurance proceeds paid to it the amount of its charges for acting as such trustee and any reasonable expenses incurred by it in connection with such trust.

      Section 14.03 . Prompt Performance of Work by Tenant . All work of repairing, replacing, restoring or rebuilding the Redevelopment Project by Tenant pursuant to the foregoing Section 14.01 shall be commenced within one hundred twenty (120) days after settlement shall have been made with the insurance companies, the insurance money shall have been paid to the Trustee and all necessary permits for such work shall have been obtained. All such work shall be governed by the provisions of Section 5.04 of this Lease and shall be completed within a reasonable time, under all prevailing circumstances. In case any mortgage, financing lease or other financing document on Tenant’s interest in the Leased Premises or Redevelopment Project shall be in force at the time of any damage to or destruction of any damage to or destruction of the Redevelopment Project shall be in force at the time of any damage to or destruction of the Redevelopment Project then, the Provider which is a party thereto is authorized to repair, replace, restore or rebuild the Redevelopment Project under the same terms and conditions as are applicable in the case of repair, restoration, replacement or rebuilding by Tenant. The Provider so respiring,

 

replacing or rebuilding the Redevelopment Project shall, subject to compliance with all the conditions contained in this Article XIV, be subrogated to the rights of Tenant to the insurance proceeds payable as a result of the damage or destruction, and shall be entitled to have (and the City and Tenant hereby authorize the Trustee to so pay) all said insurance proceeds point out by the Trustee in the same manner in every respect as if the Provider were Tenant under this Lease.

ARTICLE XV.

Condemnation

      Section 15.01. Total Condemnation. If, at any time during the Term, there shall be a permanent total taking or a permanent Constructive Total Taking of the Leased Premises or Redevelopment Project in condemnation proceedings or by any right of eminent domain, Tenant may by written notice to the City elect to end the Term on the date of such taking, and Tenant shall remove its personal property from the Leased Premises without delay. The rent and all other items payable to Tenant under this Lease shall be prorated and paid to the date of such taking.

      Section 15.02. Proceeds of Total Condemnation. In the event of any such permanent total taking or Constructive Total Taking of the Leased Premises and Redevelopment Project and the termination of this Lease, the Condemnation Proceeds shall be allocated as follows:

a) To the City for its fee interest in the Leased Premises (including its interest as landlord under this Lease, and reversionary interest in the Redevelopment Project); and then,

b) To Tenant for its leasehold estate in the Leased Premises and its fee interest in the Redevelopment Project (subject to the City’s reversionary interest therein) immediately prior to such total taking or Constructive Total Taking.

Nothing herein contained shall impair the right to Tenant or any of its sublessees, licensees, concessionaires or others to the full award, compensation or damages payable as an award for loss of business or for moving expenses.

      Section 15.03. Partial Condemnation. In the event of a taking less than a Constructive Total Taking, this Lease shall not terminate or be affected in any way, except as provided in the following Sections 15.04, 15.05 and 15.06. In such case, the Condemnation Proceeds shall be apportioned and paid, to the extent available in the following priority:

(a) The Condemnation Proceeds shall be payable in trust to Tenant for application by Tenant to the cost of restoring and rebuilding the Redevelopment Project as required by the following Section 15.04; and

     (b) The Condemnation Proceeds, if any, remaining after restoration shall, subject to the requirements of any financing documents and the rights of the Provider, be retained by Tenant, except to the extent of an equitable portion of the Condemnation Proceeds allocable by agreement of the City and tenant to the City on account of any taking of its reversionary fee title interest to any portion of the Leased Premises. If Tenant and the City cannot agree upon the amount of such payment, the amount of such payment shall be determined by an independent appraiser selected by agreement of the City and Tenant.

      Section 15.04. Restoration. In the event of a taking less than a Constructive Total Taking, Tenant, at its sole cost and expense (but subject to reimbursement from the Condemnation Proceeds) and regardless of whether the Condemnation Proceeds are sufficient for the purpose, shall proceed with due diligence to restore and rebuild the remaining portion of the Redevelopment Project, to the extent feasible to the condition and character in which the same was immediately prior to such taking. All such work in connection with the restoration and rebuilding of the Redevelopment Project shall be governed by the provisions of Section 5.04 of this Lease.

      Section 15.05. Rent Adjustment. In the event of a taking of the character referred to in the foregoing Section 15.03, this Lease shall terminate as to the portion of the Leased Premises so taken and the rent payable hereunder shall be proportionally adjusted from the date of the taking. Such adjustment shall be based on the ratio between the fair market value of Tenant’s leasehold estate in the Leased Premises at the date of taking to the fair market value of such leasehold estate remaining immediately thereafter, valued for the use being made of the Leased Premises by Tenant immediately prior to such partial taking.

      Section 15.06. Temporary Condemnation. If, at any time during the Term, the whole or any part of the Leased Premises or Redevelopment Project shall be taken in Condemnation Proceedings or by any right of eminent domain for temporary use or occupancy, except to the extent that Tenant may be prevented from so doing pursuant to the terms of the order of the condemning authority, or by the practical effects of such temporary taking, Tenant perform and observe all of the terms, covenants, conditions and obligations of this Lease on Tenant’s part to be performed and observed as though such taking and not occurred. In the event of any such taking of the character described in this section 15.06, Tenant shall be entitled to receive the entire amount of the Condemnation Proceeds awards for such taking, whether paid by way of damages, rent, costs of moving or restoration or otherwise, unless such period of temporary use or occupancy shall extend beyond the Term, in which case the Condemnation Proceeds shall be apportioned between the City and Tenant as of the date of termination of this Lease. Upon the expiration of any such period of temporary use or occupancy, if it be during the Term, Tenant will, to its sole cost and expense, restore the Leased Premises, as nearly as practicable, to the condition and character in which the same were immediately prior to such taking. Any portion of the condemnation Proceeds received by Tenant as compensation for the cost of restoration of the Leased Premises shall, if such period of temporary use or occupancy shall extend beyond the Term (and Tenant has not exercised its option to purchase), be paid to the City on the date

of termination of this Lease, and Tenant shall be thereby relieved of its obligation hereunder to perform such restoration.

      Section 15.07 . Rights to Appear. The City, Tenant and the Provider shall have the right to participate in any Condemnation Proceeding for the purpose of protecting their rights hereunder, and in this connection, specifically and without limitation, to introduce evidence to establish the value of or damage to the Leased Premises or Redevelopment Project.

      Section 15.08 . Rights of Provider. Notwithstanding anything to the contrary contained in this Lease, the provisions of this Lease relating to the application of any proceeds arising from the taking of any part or all of the Leased Premises or Redevelopment Project in Condemnation Proceedings shall be subject to any rights reserved by the Provider having an interest herein under circumstances permitted by Section 6.02 of this Lease, to apply to the indebtedness to such Provider, all or may part of such proceeds.

      Section 15.09 . City’s Exercise of Eminent Domain. To the extent permitted by law, City agrees not to use its powers of eminent domain in a manner that is inconsistent with the provisions of this Lease or that materially interferes with the enjoyment of the benefits hereof to Tenant.

ARTICLE XVI.

Consents and Approvals

      Section 16.01 . Standard of Consent. Where any provision of this Lease requires the consent, cooperation or approval of either party, each party agrees that, except as otherwise expressly provided in this Lease (such as by use of words to the effect of “sole” and/or “complete” discretion), it will not unreasonably withhold, condition or delay such consent, cooperation or appro