GROUND LEASE between CITY OF WAUKEGAN, an Illinois home rule municipality (“Landlord”) and FHR-ILLINOIS LLC, a Delaware limited liability company (“Tenant”) For the Premises Located At:
Exhibit 10.30
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GROUND LEASE FOR CITY-OWNED PARCEL
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THIS GROUND LEASE (“Ground Lease”), made and entered into as of the 18th day of January, 2023 (the “Effective Date”), by and between the CITY OF WAUKEGAN, an Illinois home rule municipality (“Landlord”), and FHR-ILLINOIS LLC, a Delaware limited liability company (“Tenant”). Landlord and Tenant are hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties.”
WITNESSETH:
For and in consideration of the rent hereinafter provided, and for and in consideration of the mutual agreements herein set forth and for other good and valuable consideration, Landlord and Tenant hereby agree as follows:
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AAA will have the meaning ascribed thereto in Section 12.10 below.
Access Easement means that certain Site Development, Easement and Amendatory Agreement dated September 6, 2007 and recorded with the Lake County Recorder on September 14, 2007 as document 6242149.
Adjusted Gross Receipts. The term “Adjusted Gross Receipts” has the same meaning given to such term in Section 4 of the Illinois Gambling Act, as amended (230 ILCS 10/1 et seq.) (or any successor Act thereto). Adjusted Gross Receipts generated by the Temporary Facility and the Permanent Facility shall be calculated in the same manner as it is calculated for the State of Illinois’ assessment of the privilege taxes pursuant to Section 13 of the Illinois Gambling Act, as amended (230 ILCS 10/1 et seq.) (or any successor Act thereto) and, if such manner of calculation is modified at any time during the Term, the same shall be deemed to be Adjusted Gross Receipts for purposes of this Ground Lease.
Adjustment Date will have the meaning ascribed thereto in Section 4.2(A) below.
Affiliate means a Person, or group of Persons, that, directly or indirectly, controls or is controlled by or is under common control with another Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person or group of Persons shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
Annual Minimum Rent means the net base rental to be paid by Tenant to Landlord, defined as such and set forth in Article 4.
Annual Percentage Minimum Rent will have the meaning ascribed thereto in Section 4.2 below.
Application(s) and Filings (or Application(s) or Filings or other variations on such term) shall mean any instrument, document, agreement, certificate, application, or filing (or amendment of any of the foregoing): (a) necessary or appropriate for any alteration, addition, development, redevelopment, modification, expansion, demolition, restoration, or other construction or reconstruction work affecting any or all improvements from time to time constituting part of the Premises and/or the Improvements, or the construction or reconstruction of any new improvements, or repair of any existing improvements, located on or at the Premises, that this Ground Lease or the DHCA requires or allows (collectively, “Construction Work”), including any application for any building permit, certificate of
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occupancy, utility service or hookup, easement, covenant, condition, restriction, subdivision plat, or such other instrument as Tenant may from time to time request in connection with the same; (b) to enable Tenant to obtain any abatement, deferral or other benefit that may otherwise be reasonably available with respect to the Impositions; (c) if and to the extent (if any) this Ground Lease or the DHCA permits, to allow Tenant to change the use or zoning of the Premises and/or the Improvements; (d) to enable Tenant from time to time to seek any approvals from any governmental authority required in connection with any of the matters described in the preceding clause (a) or to use and operate the Premises and/or the Improvements in accordance with this Ground Lease or the DHCA; (e) otherwise reasonably necessary and appropriate to permit Tenant to realize the benefits of the Premises and/or the Improvements contemplated by this Ground Lease or the DHCA; or (f) that this Ground Lease otherwise requires Landlord to sign for Tenant.
Casualty means any damage or destruction (including any damage or destruction for which insurance was not obtained or obtainable) of any kind or nature, ordinary or extraordinary, foreseen or unforeseen, affecting any or all of the Project.
Collateral Trust Agreement means that certain Collateral Trust Agreement, dated as of February 12, 2021 among Full House Resorts, Inc., a Delaware corporation, Tenant, the other grantors party thereto from time to time, the Collateral Trustee, the Trustee (as defined in the Collateral Trust Agreement), the Administrative Agent (as defined in the Collateral Trust Agreement) and the other Secured Debt Representatives (as defined in the Collateral Trust Agreement) from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Collateral Trustee means Wilmington Trust, National Association, as collateral trustee under the Collateral Trust Agreement for the benefit of the Secured Parties (as defined in the Collateral Trust Agreement) pursuant to the Collateral Trust Agreement, in such capacity and together with its successors and assigns in such capacity. Landlord acknowledges that, as of the Effective Date, the Collateral Trustee is, or intends to become, a Leasehold Mortgagee under this Ground Lease.
Declaration means that certain First Amended Declaration of Protective Covenants, Conditions, Restrictions and Easements for Fountain Square of Waukegan dated August 27, 2005 and recorded with the Lake County Recorder on September 2, 2005 as document number 5853181, as amended.
Dispute Notice will have the meaning ascribed thereto in Section 12.10 below.
Effective Date means the date on which the last of Landlord and Tenant executes this Ground Lease, which date shall be reflected on the cover page and preambles to this Ground Lease.
Environmental Laws means the Resource Conservation and Recovery act, as amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act and all applicable state and local environmental laws, ordinances, rules, requirements, and
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regulations, as any of the foregoing may have been or may be from time to time amended, supplemented or supplanted and any and all other federal, state or local laws, ordinances, rules, requirements and regulations, now or hereafter existing, relating to the preservation of the environment or the regulation or control of toxic or hazardous substances or materials.
Fee Mortgage means any financing obtained by Landlord, as evidenced by any mortgage, assignment of leases and rents, or other instruments, and secured by the fee ownership interest of Landlord in the Premises and any direct or indirect interest in such fee estate, including Landlord’s reversionary interest in the Improvements after the Expiration Date, including any extensions, modifications, amendments, replacements, supplements, renewals, refinancings, and consolidations thereof.
Fee Mortgagee shall mean the holder of a Fee Mortgage.
Force Majeure will have the meaning ascribed thereto in the DHCA.
Gaming will have the meaning ascribed thereto in the DHCA.
Gaming Area will have the meaning ascribed thereto in the DHCA.
Gaming Authority will have the meaning ascribed thereto in the DHCA.
Gaming Laws means the gaming laws or regulations of any jurisdiction or jurisdictions to which the Tenant is, or may at any time after the date of this Ground Lease, be subject, including, without limitation, the Illinois Gambling Act, 230 ILCS 10/1 et seq. and the rules and regulations promulgated thereunder.
Governmental Authority or Governmental Authorities will have the meaning ascribed thereto in the DHCA.
Ground Lease Commencement Date means the Effective Date.
Ground Lease Rent Commencement Date means the earlier to occur of (1) the date on which Tenant opens the Temporary Facility for business to the general public on the Premises or (2) the date that is five (5) days after the IGB issues the temporary operating permit for the Temporary Facility.
Guarantor means Full House Resorts, Inc., a Delaware corporation.
IGB means the Illinois Gaming Board.
Impositions will have the meaning ascribed thereto in Section 5.1 below.
Improvements means, collectively, the Pre-Existing Improvements and any buildings, improvements and fixtures hereafter constructed or erected on the Land in accordance with the DHCA, as well as any future additions, replacements, or alterations thereto, and any attachments, appliances, equipment, machinery, and other fixtures attached to said
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buildings and improvements or otherwise located on the Premises, but excludes the Public Improvements.
Institutional Lender means: (1) a bank (state, federal or foreign), trust company (in its individual or trust capacity), insurance company, credit union, savings bank (state or federal), pension, welfare or retirement fund or system, real estate investment trust (or an umbrella partnership or other entity of which a real estate investment trust is the majority owner), federal or state agency regularly making or guaranteeing mortgage loans, investment bank, subsidiary of a Fortune 500 company, real estate mortgage investment conduit, or securitization trust; (2) any issuer of collateralized mortgage obligations or any similar investment entity (provided that such issuer or other entity is publicly traded or was or is sponsored by an entity that otherwise constitutes an Institutional Lender or has a trustee that is, or is an Affiliate of, any entity that otherwise constitutes an Institutional Lender), or any Person acting for the benefit of such an issuer; (3) any Person actively engaged in commercial financing and having total assets (on the date when its Leasehold Mortgage is executed and delivered, or on the date of such Leasehold Mortgagee’s acquisition of its Leasehold Mortgage by assignment) of at least $10,000,000; (4) any Person that is controlled (as such term is defined in the definition of “Affiliate” in this Section 1.1) by, is a wholly owned subsidiary of, or is a combination of any one or more of the foregoing Persons; (5) any of the foregoing when acting as trustee, agent or similar representative for other lender(s), noteholder(s) or other investor(s), whether or not such other lender(s), noteholder(s) or other investor(s) are themselves Institutional Lenders; (6) any purchase-money Leasehold Mortgagee; or (7) any Person approved by any Gaming Authority (including the IGB) to secure all or any portion of its financing pursuant to a Leasehold Mortgage. The fact that a particular Person (or any Affiliate of such Person) is a partner, member, or other investor of the then Tenant shall not preclude such Person from being an Institutional Lender and a Leasehold Mortgagee provided that: (x) such entity has, in fact, made or acquired a bona fide loan to Tenant secured by a Leasehold Mortgage; (y) such entity otherwise qualifies as an Institutional Lender and a Leasehold Mortgagee (as applicable); and (z) at the time such entity becomes a Leasehold Mortgagee, no Tenant’s Default exists, unless simultaneously cured. Landlord agrees that Collateral Trustee and each of the Secured Parties is, or shall be deemed to be, an Institutional Lender
Land means the parcel of land owned by Landlord commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ as described in Exhibit A-1 and depicted in Exhibit A-2 attached hereto and by this reference made a part of this Ground Lease, and including the easements, rights, privileges, hereditaments and other appurtenances now or hereafter appurtenant to, benefiting or serving such parcel and the Improvements (including, without limitation, the easements granted pursuant to Section 5(b) of the Access Easement, Sections 4.2 and 4.3 of the Declaration, and Section 3(b) of the Total Site Agreement), but not including any Improvements or Pre-Existing Improvements.
Landlord. In addition to the meaning ascribed to the term "Landlord" in Section 20.5 of this Ground Lease, the term "Landlord" means the Landlord named herein and any person, firm, corporation or other legal entity who or which shall succeed to Landlord's legal and equitable fee simple title to the Land (any such successor to be conclusively deemed to have assumed the obligations of Landlord herein by virtue of such succession).
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Leasehold Mortgage means any encumbrance by way of mortgages, deeds of trust or other documents or instruments intended to grant an interest in real property, in the form of leasehold security, in and to all or any part of Tenant’s right, title and interest in and to this Ground Lease and the leasehold estate created hereby to any Person for the purpose of obtaining financing (including but not limited to a mortgage or deed of trust to be executed after the date hereof for the benefit of Collateral Trustee), including any extensions, modifications, amendments, replacements, supplements, renewals, refinancings, and consolidations thereof.
Leasehold Mortgagee means the holder or secured party under a Leasehold Mortgage.
Limited Arbitrable Dispute will have the meaning ascribed thereto in Section 12.10 below.
Permanent Facility will have the meaning ascribed to such term in the DHCA.
Permitted Encumbrances means only the encumbrances identified on Exhibit F to this Ground Lease.
Person means any corporation, partnership, individual, joint venture, limited liability company, trust, estate, association, business, enterprise, proprietorship, governmental body or any bureau, department or agency thereof, or other legal entity of any kind, either public or private, and any legal successor, agent, representative, authorized assign, or fiduciary acting on behalf of any of the foregoing.
Pre-Existing Improvements means any improvements located on the Land on Effective Date (e.g., sewers, utility lines, etc.) including, but not limited to, any improvements constructed on the Land by Tenant in accordance with the TCE, but excludes Public Improvements.
Premises the premises leased by Landlord to Tenant under this Ground Lease, consisting of the Land and the Pre-Existing Improvements.
Project will have the meaning ascribed to such term in the DHCA.
Public Improvements means those improvements either existing as of the Effective Date or to be constructed or installed on the Land and adjoining parcels as part of the Project that are approved and accepted by the corporate authorities or appropriate officers of Landlord as public improvements of the City of Waukegan.
Purchase Option means Tenant’s rights to purchase fee title to the Premises from Landlord as set forth in Section 2.4 of this Ground Lease.
Purchase Price means the purchase price for Tenant’s purchase of the Premises from Landlord pursuant to its Purchase Option rights set forth in Section 2.4 of this Ground Lease.
Regulated Substance means any, each and all substances or materials now or hereafter regulated pursuant to any Environmental Laws, including, but not limited to, any such substance or material now or hereafter under any Environmental Law defined as or deemed
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to be a "regulated substance," pesticide, "hazardous substance" or "hazardous waste" or included in any similar or like classification or categorization thereunder.
Rent will have the meaning ascribed thereto in Section 4.1 below.
Requirements of Law means all building and zoning laws and all other laws, ordinances, orders, rules, regulations and requirements of all Federal, State and municipal governments, including, specifically, the City of Waukegan, and the appropriate departments, commissions, boards and officers thereof, in all cases, applicable to the Land, the Improvements or Tenant.
Restoration means, upon a Casualty, the safeguarding, clearing, repair, restoration, alteration, replacement, rebuilding, and reconstruction of the damaged or remaining Project, substantially consistent with its condition before such Casualty, in compliance with this Ground Lease and the DHCA, subject to any changes in Requirements of Law that would limit the foregoing.
Site Plan means approved by Ordinance No. 22-O-29: “The Temporary Casino – Full House Resorts Site Plan, consisting of 1 sheet, prepared by Gewalt ▇▇▇▇▇▇▇▇ Associates, with a latest revision date of March 9, 2022.
Substantial Casualty means a Casualty that: (a) renders thirty percent (30%) or more of the Project not capable of being used or occupied; (b) occurs less than ten (10) years before the end of the Term and renders fifteen percent (15%) or more of the Project not capable of being used or occupied; (c) requires Restoration whose cost Tenant reasonably estimates in writing would exceed One Hundred Fifty Million and No/100 Dollars ($150,000,000.00); or (d) pursuant to Requirements of Law, prevents the Project from being Restored to the same bulk, and for the same use(s), as before the Casualty.
TCE means that certain Temporary Construction Easement Agreement by and between Landlord, as grantor, and ▇▇▇▇▇▇, as grantee, made as of March 22, 2022 and recorded in the Office of the Lake County Recorder on April 1, 2022 as document number 7893327.
Temporary Facility will have the meaning ascribed to such term in the DHCA.
Tenant. In addition to the meanings ascribed to the term "Tenant" in Section 20.5 of this Ground Lease, the term "Tenant" means the Tenant named herein, and any person, firm, corporation or other legal entity to whom or to which ▇▇▇▇▇▇'s interest in this Ground Lease shall be assigned.
Total Site Agreement means that certain Total Site Agreement dated March 20, 1970 and recorded with the Lake County Recorder on April 1, 1970 as document number 1454745, as amended.
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anything contained herein to the contrary, in the event that Tenant exercises the Purchase Option prior to the date on which Tenant opens the Permanent Facility for business to the public on the Premises (the “Phase 1 Opening”), as additional consideration for the purchase of the Premises, Tenant shall continue to pay quarterly installments of Annual Minimum Rent as and when the same would be due and payable in accordance with this Ground Lease through the date of the Phase 1 Opening. Tenant’s obligations under the immediately preceding sentence shall survive the termination of the Ground Lease.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TENANT ACKNOWLEDGES AND AGREES THAT (A) IT IS PROCEEDING WITH THE PROJECT AT ITS SOLE AND ABSOLUTE RISK (PROVIDED THAT THIS CLAUSE (A) SHALL NOT LIMIT THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF
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LANDLORD CONTAINED IN THIS GROUND LEASE OR THE DHCA), AND (B) TENANT IS NOT ENTITLED TO THE ISSUANCE BY LANDLORD OF ANY BUILDING PERMITS OR CERTIFICATES OF OCCUPANCY FOR THE PROJECT, REGARDLESS OF EXPENDITURES INCURRED BY TENANT IN PROCEEDING PRIOR TO THE EFFECTIVE DATE, OR PURSUANT TO THIS GROUND LEASE OR THE DHCA, UNLESS AND UNTIL TENANT HAS SATISFIED ALL TERMS AND CONDITIONS OF THE DHCA, AND THE TERMS AND CONDITIONS PRECEDENT TO COMMENCING THE PROJECT IMPOSED IN ACCORDANCE WITH THE APPROVAL OF THE SITE PLAN (INCLUDING BUT NOT LIMITED TO, ALL OF THE TERMS AND CONDITIONS OF THE ISSUANCE OF A BUILDING PERMIT OR A CERTIFICATE OF OCCUPANCY, IF APPLICABLE), REQUIRED BY ALL OTHER APPLICABLE CITY OF WAUKEGAN CODES AND ORDINANCES, AND REQUIRED BY THE IGB.
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to the Ground Lease Commencement Date (except the extent Tenant has expressly agreed in writing to pay or reimburse Landlord for such expenses).
| 1. | the Land’s proportionate share of the “Shared Maintenance Area Expenses” imposed upon the Land pursuant to that certain First Amended Declaration of Protected Covenants, Conditions and Restrictions and Easements for Fountain Square of Waukegan dated August 27, 2005 and recorded with the |
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| Lake County Recorder on September 2, 2005 as document number 5853181; and |
| 2. | The special assessment levied against the Land by the City of Waukegan payable annually through the year 2030 pursuant to City of Waukegan Special Assessment 04-2. |
Tenant’s obligations under this Section 5.1 shall extend to all Impositions which, as a result of the existence of the Land or the Improvements or both, are assessed, levied, confirmed, imposed or become a lien upon the Land or upon the Improvements or both accruing after the Ground Lease Commencement Date (also referred to as the “Imposition Commencement Date”) and continuing during the Term. Any Imposition relating to a fiscal period, a part of which is included after the Imposition Commencement Date and within the Term and a part of which is included in a period of time before the Imposition Commencement Date or after the expiration of the Term, shall be adjusted as between Landlord and Tenant, so that Landlord shall pay an amount which bears the same ratio to such Imposition which that part of such fiscal period included in the period of time on or before the Imposition Commencement Date or after the expiration of the Term, as the case may be, bears to such fiscal period. Tenant’s obligation to pay Impositions for the last fiscal period included in whole or in part during the Term shall survive the expiration or earlier termination of this Ground Lease, subject to the foregoing adjustment. For purposes of clarity and the avoidance of doubt, (i) Landlord shall be solely responsible for the payment of Ad Valorem Taxes that are due and payable during the calendar year in which the Imposition Commencement Date occurs, notwithstanding that such Ad Valorem Taxes are attributable to the preceding calendar year, (ii) Ad Valorem Taxes due and payable during the calendar year following the calendar year in which the Imposition Commencement Date occurs shall be adjusted as between Landlord and Tenant as provided in this paragraph (as such Ad Valorem Taxes are attributable to the calendar year in which the Imposition Commencement Date occurs), and (iii) Landlord shall be solely responsible for the payment prior to delinquency of (1) all Ad Valorem Taxes attributable to any calendar year (or periods) prior to the calendar year in which the Imposition Commencement Date occurs and (2) and all other Impositions for any period prior to the Imposition Commencement Date.
Notwithstanding anything in this Ground Lease to the contrary, the “Impositions” shall not include any of the following, all of which Landlord shall pay before delinquent: (i) any franchise, income, gross receipts, excess profits, estate, inheritance, succession, transfer, gift, corporation, business, capital levy, or profits tax, or license fee, of Landlord; (ii) the incremental portion of any of the items listed in this Section 5.1 that would not have been levied, imposed or assessed but for any sale or other direct or indirect transfer of the fee estate in the Premises or of any direct or indirect equity or ownership interest(s) in Landlord during the Term; (iii) any items listed in this
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Section 5.1 that would not have been payable but for any act or omission of Landlord; (iv) any items listed in this Section 5.1 that are levied, assessed, or imposed against the Premises and/or the Improvements during the Term based on the recapture or reversal of any previous tax abatement or tax subsidy, or compensating for any previous tax deferral or reduced assessment or valuation, or correcting a miscalculation or misdetermination, relating to any period(s) before the Imposition Commencement Date; and (vi) interest, penalties, and other charges for the foregoing items (i) through (v).
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Landlord, including reasonable attorney's fees and expenses incurred in connection with such payments, together with interest on all of such amounts at the Default Rate (defined below) from date of demand shall be repaid by Tenant to Landlord upon demand, and the payment thereof may be collected by Landlord in the same manner as though said amount were an installment of rent specifically required by the terms of this Ground Lease to be paid by Tenant to Landlord.
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against Landlord, except as may be conferred upon it by any existing or future Requirement of Law or express terms of Articles 2.6, 10 or 12 or Section 5.1.
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certificates, then Landlord, at its sole option but without obligation to do so, may, if Tenant fails to do so within ten (10) days after notice to Tenant, effect, maintain or renew such insurance (as to Tenant, but not as to any Tenant Parties), and the amount of money paid as the premium thereon, plus interest at the Default Rate set forth in Section 14.3 below, shall be collectible as though it were rent then matured hereunder and due and payable forthwith.
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management of the Premises. Nothing in this Section 9.2 shall be deemed to limit Landlord’s obligations to furnish public services to the Premises or the Project or to make any repairs, replacements or alterations to the Public Improvements, in each case, in the ordinary course of providing governmental services in its capacity as a unit of local government.
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Any sums held by Landlord pursuant to clause (i) above shall be paid by Landlord to the lienholder at the request of Tenant, provided that such utilization results in a full release or satisfaction of the lien it secures, and any balance shall be returned to Tenant. If Tenant shall fail to procure and deliver to Landlord a full and complete cancellation and discharge of any such lien,
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or to deliver to Landlord the required form of security in the amount so specified, or bond over such lien, in any case, within a time period expiring on the earlier of (x) one hundred twenty (120) days after written notice from Landlord demanding such security or (y) fifteen (15) days after the date the lien claimant files a proceeding to foreclose such lien, Landlord may, but shall not be required to, take all action necessary to release and remove such lien and Tenant shall upon demand reimburse Landlord for all reasonable costs incurred by Landlord in connection therewith with interest thereon accruing at the Default Rate.
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Tenant shall defend all actions against the Landlord and pay, protect, indemnify and save harmless Landlord, its directors, officers, employees and agents from and against any and all actual out-of-pocket liabilities, actual out-of-pocket losses, actual damages, actual out-of-pocket costs, actual out-of-pocket expenses (including, without limitation, reasonable attorneys' and consultant's fees, response and cleanup costs, court costs, and litigation expenses), causes of action, suits, third party claims, demands or judgments of any nature relating to any action brought against Landlord arising out of or in any way relating to any violation or claimed violation of Environmental Laws by Tenant with respect to the Premises and/or the Improvements. If at the expiration or other termination of this Ground Lease any response or cleanup of a condition involving Regulated Substances is required of Tenant and/or the Premises and/or the Improvements by any federal, state or local governmental authority and such condition first arose during the Term as a result of Tenant's acts or omissions, then Tenant shall remain solely responsible for such requirement and Landlord's actual damages for breach of this Ground Lease. The foregoing indemnity shall survive the expiration or earlier termination of this Ground Lease.
Notwithstanding any contrary law, subject to ▇▇▇▇▇▇’s right to terminate this Ground Lease pursuant to this Article 10, Rent shall not be suspended or abated as a result of any damage or destruction to, and/or during any restoration or rebuilding of, the Premises and/or the Improvements. If, at any time during the Term, the Land or the Improvements or any part thereof shall be damaged or destroyed by a casualty (the "Damaged Facilities"), Tenant, at its sole cost and expense, shall, except as otherwise provided in this Article 10, commence and thereafter proceed as promptly as possible to repair, restore and replace the Damaged Facilities as nearly as possible to their condition immediately prior to the casualty. If, however, the Casualty is a Substantial Casualty, then Tenant may, by notice to Landlord given within six (6) months after the Casualty, but only with Leasehold Mortgagee’s (if any) consent, terminate this Ground Lease effective sixty (60) days after such notice; provided, however, that (i) Tenant shall remove all Improvements (including foundations, but excluding any Public Improvements) from the Premises in accordance with Section 9.3, and (ii) such termination shall not terminate any of Tenant’s obligations or liabilities under this Ground Lease that are expressly stated herein to survive the termination of this Ground Lease.
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without Landlord’s consent, enter into occupancy, license or concession agreements with any Person for any use or occupancy of space at the Premises or in the Improvements that does not violate the DHCA.
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FIRST, to the extent required by any Leasehold Mortgage, Tenant's Leasehold Mortgagee, if any, shall receive a sum equal to the unpaid principal balance of any Leasehold Mortgage, with interest thereon at the rate specified therein to the date of payment, or so much thereof as the
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balance of the award is sufficient to pay (such payments to be made in order of lien priority and pari passu to Leasehold Mortgagees with liens of the same priority);
SECOND, Landlord shall receive such portion of the award as shall represent compensation for the fair market value of the Land taken, considered as vacant and unimproved and unencumbered by this Ground Lease and such portion of such award, if separately stated in the award or decree as shall represent consequential damages, if any, to the portion of the Land not taken, considered as vacant and unimproved and unencumbered by this Ground Lease; and
THIRD, Tenant shall receive the entire balance of the award, if any.
Notwithstanding the foregoing to the contrary, if Landlord is the condemning authority with respect to any Condemnation, then Landlord shall not receive any portion of the applicable Condemnation Award (and Tenant shall receive the entire balance of the award after the payment of the portion of the Condemnation Award to any Leasehold Mortgagees as described above).
Notwithstanding anything in this Ground Lease to the contrary, all amounts, compensation, sums or value paid, awarded or received for a Condemnation attributable to the 10-Acre Parcel (as defined in the DHCA) shall be payable entirely to Tenant and Landlord shall have no rights or claims with respect thereto.
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of the Project or any other Construction Work and the operation of the uses permitted pursuant to Section 7.1 on the Premises.
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incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor and save Landlord harmless therefrom; provided, however, that, if Tenant is not diligently pursuing the cure of such default, Landlord may cure such default as aforesaid prior to the expiration of said waiting period but after notice to Tenant, if the curing of such default prior to the expiration of said waiting period is reasonably necessary to protect the Premises or ▇▇▇▇▇▇▇▇'s interest therein, or to prevent injury or damage to persons or property. If Tenant shall fail to reimburse Landlord upon demand for any amount paid for the account of Tenant hereunder, said amount shall be added to and become due as a part of the next payment of rent due hereunder. Tenant hereby agrees to pay Landlord interest on such amount at the Default Rate described below in Section 14.3. No entry by Landlord in accordance with the provisions of this Section 14.2 shall be deemed to be an eviction of Tenant. Nothing in this Section 14.3 shall limit Landlord’s rights under Section 13.2.
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Except where Tenant exercises its right to purchase the Premises pursuant to Article 2 of this Ground Lease, at the termination of this Ground Lease by lapse of time or otherwise, Tenant shall yield up immediate possession of the Premises to Landlord and, failing so to do, Tenant hereby agrees to pay to Landlord an amount equal to one hundred fifty percent (150%) of the quarterly installments of the Annual Minimum Rent applicable immediately prior to the expiration of the Term, as set forth in Section 4.2 of this Ground Lease, for each quarter or fractional quarter such holding over (prorated on a per diem basis for any partial calendar quarter), plus the actual amount of Additional Rent for the holdover period, plus any other damages prescribed by law; provided, however, that Landlord shall not be entitled to seek any consequential damages due to any holding over unless such holding over continues for more than ninety (90) days after the termination of this Ground Lease.
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If to Landlord:
City of Waukegan
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ King, Jr. Avenue
Waukegan, Illinois 60085
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Director of Planning & Economic Development
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to Tenant:
FHR-Illinois LLC
c/o Full House Resorts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SVP & Chief Development Officer
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and
FHR-Illinois LLC
c/o Full House Resorts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and
FHR-Illinois LLC
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Copies of all notices shall be given to Leasehold Mortgagee(s) at the address(es) provided by Tenant or by Leasehold Mortgagee(s), as the case may be; provided, however, all notices to Collateral Trustee to be given to:
Wilmington Trust, National Association
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Minneapolis, MN 55402
Attn: Full House Resorts Notes Administrator
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Page 40
shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute; and every power and remedy given by this Ground Lease to Landlord or Tenant may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by Landlord or Tenant, as the case may be. No delay or omission of Landlord or Tenant to exercise any right or power arising from any default shall impair any such right or power, nor shall it be construed to be a waiver of any such default or an acquiescence therein.
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which shall be deemed one and the same instrument. Electronic signatures appearing on this Ground Lease are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
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Attached to this Ground Lease, and incorporated into and made a part of this Ground Lease by this reference, are the following:
| (a) | EXHIBIT A-1: Legal Description of the Land |
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| (b) | EXHIBIT A-2: Depiction of the Land |
| (c) | EXHIBIT B: Purchase and Sale Agreement |
| (d) | EXHIBIT C: Tenant’s Required Insurance Coverage |
| (e) | EXHIBIT D:Form of Memorandum of Ground Lease |
| (f) | EXHIBIT E: Form of Guaranty |
| (g) | EXHIBIT F:Permitted Encumbrances |
| (h) | SCHEDULE 20.23: Litigation |
[Remainder Intentionally Left Blank. Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Ground Lease, effective as of the day and year first above written.
LANDLORD:
CITY OF WAUKEGAN,
an Illinois home rule municipality
By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ | |
| ▇▇▇ ▇. ▇▇▇▇▇▇, Mayor | |
ATTEST:
By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, City Clerk | |
TENANT:
FHR-ILLINOIS LLC,
a Delaware limited liability company
By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Secretary | |
[Signature Page – Ground Lease]