exv10w10



 





Exhibit
10.10



AMENDED AND RESTATED 




 LEASE AGREEMENT




     This Amended and Restated Lease Agreement is entered into and made as of the 20th day of
January, 1995, between GREENVILLE MARINE CORPORATION with its principal place of business at P.O.
Box 539, Greenville, Washington County, Mississippi (hereinafter referred to as “Lessor”), and
RAINBOW ENTERTAINMENT, INC., doing business at 1231 South Main, Greenville, Mississippi
(hereinafter referred to as “Lessee”). The parties hereby agree as follows:



RECITALS




     WHEREAS, Lessor is the owner of that certain parcel of real property described below and
Lessor desires to lease the property to Lessee for the development and use of property as a casino
and gaming facility, with possible development of a hotel, motel, restaurant and/or related
facilities;



     WHEREAS, Lessee desires to develop and construct a casino and gaming facility, with possible
development of a hotel, motel, restaurant and related facilities as an amenity to commercial
developments in and about the area of Lessor’s property; and



     WHEREAS, the parties entered into a Lease Agreement dated April 27, 1993, as amended by a
Lease Amendment dated August 25, 1993 and a Second Lease Amendment dated July 12 and 15, 1994 (the
“Second Lease Amendment”), which the parties desire to amend and restate in its entirety.



     Section 1. Description of Property.



     Lessor hereby leases to Lessee the Premises owned by Lessor legally described on Exhibit A
hereto, consisting of certain existing buildings and site improvements, hereinafter referred to as
“the Premises.” A plat and site plan of the Premises is attached hereto as Exhibit A and
incorporated herein by reference. There is excepted from this Lease that certain parcel of said
property shaded in yellow on the attached plat and described in note 1 of said plat. Such parcel
is excepted from this Lease and Lessor agrees during the term of this Lease not to lease or let
said property to any other person, firm or corporation.



Section 2.
Purpose.




     2.1. Lessee shall use the Premises for the purposes of developing, constructing and operating
a gaming and casino riverboat or barge facility including parking and related improvements. Lessee
may also develop, construct and operate one



 









 




or more of the following on the Premises in its discretion: hotel, motel, restaurant, business
office, and entertainment facilities for performing arts and music.




          2.2. Lessee shall have the sole and absolute discretion to determine the design, materials,
method of construction, location and all other matters with respect to development of the Premises,
construction of new improvements and renovation of existing improvements; provided that Lessee
shall keep the Lessor’s interest in the Premises free of mechanic’s liens and shall materially
comply with all applicable laws, statutes and regulations.




     Section 3. Lease Term.



     The initial term of this Lease shall be for a period of five (5) years commencing July 1,
1994, through June 30, 1999. Additionally, Lessee may renew this Lease for nine (9) additional
periods of five (5) years each by giving Lessor written notice of renewal at least twelve (12)
months prior to expiration of the initial or any renewal term.



     Section 4. Rental.



          4.1. The monthly rental for the first year of the initial term shall be the sum of $10,000.00
per month paid in advance as “Base Rent” in addition to the “Base Percentage Rent” set forth below.
Beginning July 1, 1995, the Base Rent, paid in advance, shall be $30,000.00 per month, and shall
remain the Base Rent for the balance of the five (5) year initial term. When Lessee commences
gaming and casino operations to the general public, in addition to the above monthly Base Rent
provided herein, Lessee agrees to pay to Lessor a monthly Base Percentage Rent of a sum of money
equal to two percent (2%) of the total Gross Gaming Revenues as hereinafter defined on a monthly
basis with credit being given for the Base Rent which shall continue to be paid in advance on the
first day of each month so that Lessor shall receive a minimum Base Rent as set forth above even if
the monthly Percentage Rent shall be calculated to be less than the minimum monthly Base Rent set
forth herein. It is the intent of the parties that all sums paid monthly in advance as Base Rent
be included in the Base Percentage Rent. Example: Base Rent of $10,000.00 is to be paid in advance
on the first day of each month. When the Base Percentage Rent is paid as set forth herein Lessee
shall receive credit for the Base Rent against the Base Percentage Rent. If in this example the
Base Percentage Rent is calculated to be $50,000.00 then Lessee would receive a credit of
$10,000.00 towards the Base Percentage Rent so that the sum due to Lessor would be $40,000.00. In
any event, Lessor would always receive the Base Rent regardless of whether the Base Percentage Rent
would result in any additional payment to Lessor.




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          4.2. Lessee further agrees to pay Lessor, in addition to the Base Percentage Rent, a sum equal
to eight (8%) percent of the amount by which annual Gross Gaming Revenues exceeds $36,575,000.00
which shall be called the Secondary Percentage Rent. At such time as Gross Gaming Revenues exceed
$36,575,000.00 in any year, in addition to the Base Percentage Rent, the Secondary Percentage Rent
shall likewise be due. The Base Percentage Rent and/or Secondary Percentage Rent with respect to a
month shall be paid within five (5) days after Lessee files its report of Gross Gaming Revenue for
such month with the Mississippi State Tax Commission. The annual period used to determine the
Secondary Percentage Rent shall commence on the first day of the month after which gaming
operations begin. As to the Secondary Percentage Rent, the intent is as follows: Rainbow will pay
to Lessor eight percent (8%) of the total annual Gross Gaming Revenues over $36,575,000.00 when
annual gross revenues exceed $36,575,000.00 in any twelve (12) month period. Once Gross Gaming
Revenues exceed $36,575,000.00 in any twelve (12) month period, the Secondary Percentage Rent is to
be paid
monthly at the same time that the Base Percentage Rent is due. Example: if at the end of the ninth
month in any twelve (12) month period of the lease, gross gaming revenues are $36,575,000.00 and
at the end of the next month (the tenth month), the Gross Gaming Revenues are $36,675,000.00, then
the Secondary Percentage Rent for the tenth month would be $8,000.00 ($100,000.00 x .08). The
Secondary Percentage Rent would then be calculated accordingly in months eleven and twelve and then
a new twelve (12) month period would begin.




          4.3. If Lessee exercises its options for renewal, the minimum monthly Base Rent, Base
Percentage Rent and Secondary Percentage Rent for the first renewal term, July 1, 1999, through
June 30, 2004, will be the same as for the last four (4) years of the initial term of the lease.
The minimum Base Rent after the first renewal term and for all succeeding terms shall be $50,000.00
per month and the Base Percentage Rent shall be a sum of money equal to four percent (4%) of the
total Gross Gaming Revenues as hereinafter defined in addition to the eight percent (8%) Secondary
Percentage Rent of annual gross revenues above $36,575,000.00 calculated as set forth above and
payable as set forth above.




          4.4. The term “Gross Gaming Revenues” as used herein shall mean the total amount in dollars of
Lessee’s actual winnings from gaming operations as reported by Lessee to the Mississippi State Tax
Commission or any successor state authority. However, the term “Gross Gaming Revenues” shall not
include any payments, receipts or proceeds from the sales of any related operations, goods and
products which may be sold for the convenience of Lessee’s customers on the Premises.




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          4.5. Lessee shall maintain upon the Premises an accurate set of books and records of all
Gross Gaming Revenues and such records shall be open to inspection and audit by Lessor and its
agents at all reasonable times during ordinary business hours to the extent allowable under
Mississippi Law.




     Section 5. Sale, Assignment and Sublease.



          5.1. Subject to Sections 5.2 and 5.3 below, Lessee may assign this Lease Agreement or sublet
all or a portion of the Premises during the term of this Lease Agreement only after first obtaining
prior written consent from Lessor which consent may not be unreasonably withheld. However, the
making of any sublease shall not release Rainbow Entertainment, Inc. from, or otherwise affect in
any manner, any of Lessee’s obligations hereunder. Except as provided in Section 12 below, neither
this Lease nor the leasehold estate of Lessee nor any interest of Lessee hereunder in the Premises
or in the buildings or improvements thereon shall be subject to involuntary assignment, transfer,
or sale, or to assignment, transfer or sale, by operation of law in any manner whatsoever, and any
such attempted involuntary assignment, transfer or sale shall be void and of no effect and shall,
at the option of Lessor, terminate this Lease.




          5.2. Lessor hereby consents to the assignment of all of Lessee’s rights, title and interest in
this Lease to Greenville Riverboat LLC, a Mississippi limited liability company at any time during
the term hereof.




          5.3. Lessee shall have the right to sublease up to two and one-half (2 1/2) acres of the
Premises (the “Subparcel”) to WIMAR TAHOE CORPORATION (“Subtenant”) or any affiliate of Wimar Tahoe
Corporation on such terms and conditions as Lessee determines are acceptable in its reasonable
business judgment (the “Sublease”). The Subtenant shall have the right to develop, construct and
operate a motel or hotel (including a restaurant, bar and other related facilities) on the
Subparcel; provided, however, the Subparcel will not be utilized in any way for gaming purposes or
operations, except that which is operated at the Premises by the Lessee (or the Lessor and his
assigns if the lease is terminated). The motel or hotel shall be constructed and maintained as a
full-service quality facility similar to hotels and motels operated under nationally-known
franchises which charge the same rates as Subtenant. Subtenant shall agree to keep the hotel in
good condition and repair, excepting ordinary wear and tear, and such covenant shall be enforceable
by Lessor. Subtenant and Lessee shall share parking availability on the Premises as agreed in the
Sublease. In the event that this Lease is terminated for any reason, Lessor agrees not to disturb,
terminate or alter in any manner the tenancy of the Subtenant under the Sublease, so long as the
Subtenant attorns to the Lessor. Upon Subtenant agreeing to such attornment, Subtenant’s tenancy
shall not be disturbed so long as it complies with all the terms and conditions of the Sublease;
provided that the




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Subtenant’s rent payable to Lessor in such event shall be $6,250.00 per month, increased annually
from the date hereof by a percentage equal to the increase, if any, in the Consumer Price Index,
All Urban Consumers, or the sum actually due under the Sublease, whichever is greater. Subtenant
shall have the right to grant a mortgage on, or assign under a deed of trust, all of the
Subtenant’s sublease interest in the Subparcel upon the terms and conditions contained in Section
12.




          5.4. At Lessee’s request and expense, Lessor shall fully cooperate in a subdivision of
the Premises to make a separate parcel for the hotel.




          5.5. The Lessee hereby covenants that the Sublease shall not contain any provision which will
restrict or prohibit the conduct of a gaming operation by Lessee (or Lessor if the Lease if
terminated) on the Premises.




     Section 6. Sewer, Utilities and Access.



     Lessee shall solely be responsible for all utility services used or consumed by Lessee on the
Premises and such utility services shall be in the name of Lessee and Lessee shall solely be liable
for the payment of all utility services it receives. Lessee shall also be responsible for utilities
consumed in order to provide reasonable security systems for the existing buildings located on the
Premises. Lessor agrees to cooperate with Lessee in obtaining any and all utility services.
Lessor agrees not to at any time interfere with the right of Lessee and its employees, agents,
customers and invitees to have full and complete access to the Premises.



     Section 7. Taxes.



     Lessor shall pay the 1994 ad valorem taxes on said property which amount shall be the base ad
valorem tax amount. Lessee shall be responsible for the ad valorem taxes on the Premises for 1995
and thereafter during the term of the Lease. Lessee shall be entitled to a credit against the Base
Rent and/or Base Percentage Rent each year equal to the base ad valorem tax amount of $2,634.33.



     Section 8. Insurance.



     Lessee shall carry fire and all risk insurance covering the improvements located on the
Premises for not less than the cost of construction which insurance shall be issued by a reliable
insurance company, and Lessor shall be named as an additional loss payee to the extent of its
interest in any improvements. Lessee shall obtain liability insurance in the amount of
$1,000,000.00 for each accident or occurrence on the Premises (with umbrella coverage with limits
of not less than $10,000,000.00) and $50,000.00 for property damage, and Lessor shall be named as
an additional insured under such policies.




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Lessee shall furnish to Lessor copies of all insurance policies required to be maintained by Lessee
hereunder or under the rules of the State Gaming Commission.




     Section 9. Condemnation.



     This Lease Agreement shall terminate in the event of a total condemnation of the Premises by a
government agency. Partial condemnation of Premises shall only terminate the Lease Agreement at
the option of the Lessee, but if Lessee elects to continue this Lease Agreement, Lessee shall be
entitled to a partial abatement of rent proportionate to the loss of the use of Premises suffered
by Lessee. All compensation awarded for any taking of the Premises or any interest thereon shall
be shared by Lessor and Lessee as follows: (i) Lessor shall be entitled to receive such portion of
the award as shall represent compensation for vacant land and, if they are still located thereon at
such time, any compensation awarded for the two buildings and any other improvements which
currently exist on the Premises; (ii) Lessee shall be entitled to the portion of the award for the
then fair market value of the improvements made by Lessee, the fair market value of Lessee’s
leasehold interest, and any award for the damage or loss of Lessee’s business.



     Section 10. Warranty of Title.



     Lessor covenants that Lessor owns the Premises in fee simple and has full right to make and
enter into this Lease that Lessee shall have quiet and peaceable possession of the Premises during
the term of this Lease Agreement and any renewals thereof. Lessor shall obtain a nondisturbance
agreement from any person or entity holding a mortgage or deed of trust on the Premises for the
benefit of Lessee in form reasonably acceptable to Lessee, in exchange for which Lessee shall agree
to attorn to such mortgagee.



     Section 11. Government Approval.



     Lessor, at Lessee’s sole cost and expense, shall assist in obtaining all government approvals,
including Zoning, Levee Board, Corps of Engineers and City of Greenville in order for Lessee to
conduct gaming operations and the other business operations contemplated herein on the Premises.
Lessor agrees to cooperate fully with Lessee in obtaining any and all governmental approvals for
Lessee to conduct its gaming operations and other business operations on the Premises.



     Section 12. Encumbrances of Lessee’s Leasehold Interest.



          12.1. On one or more occasions without Lessor’s consent, Lessee and/or Subtenant may
mortgage, grant a deed of trust or otherwise encumber Lessee’s or Subtenant’s leasehold estate in
the Premises under one or more leasehold mortgages or deeds of trust and assign this Lease as
security; provided that





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the proceeds of the initial mortgage granted by Lessee with respect to the Premises must be used
exclusively to improve the Premises and the initial mortgage granted by Subtenant with respect to
the Subparcel must be used exclusively to improve the Subparcel. The proceeds from any refinancing
of such mortgages may be used by Lessee or Subtenant for any purpose. For purposes of this Section
12, the term “mortgages” includes deeds of trust, and the term “leasehold mortgagee” shall mean the
beneficiary of a deed of trust or mortgage with respect to the Lease and/or the Sublease.




          12.2. If Lessee mortgages its leasehold estate in the Premises or Subtenant mortgages its
subleasehold estate in the Premises, Lessee shall give Lessor notice of such mortgage within thirty
(30) days after the mortgage is executed and such notice shall include the name and address of the
mortgagee. Lessor shall promptly upon notice of the communication purporting to constitute the
notice acknowledge by an instrument in recordable form receipt of such communication as
constituting the notice required herein.




          12.3. Lessor upon providing Lessee with any notice of default under this Lease, termination of
this Lease or matter on which Lessor may predicate or claim a default shall at the same time
provide copies of such notice to every leasehold mortgagee of which Lessor has been given written
notice. No such notice shall have been deemed to be duly given unless a copy thereof has been
provided to every leasehold mortgagee of which Lessor has been given written notice. After such
notice has been given to a leasehold mortgagee, such leasehold mortgagee shall have the same period
after receiving such notice for remedying any default or causing the same to be remedied as is
given Lessee under the Lease.




          12.4. Any provision contained in this Lease to the contrary notwithstanding, if any default
shall occur which entitles Lessor to terminate this Lease, Lessor shall have no right to terminate
this Lease unless following the expiration of the period of time given Lessee to cure such default
Lessor shall notify every leasehold mortgagee of Lessor’s intent to so terminate at least thirty
(30) days in advance of the proposed effective date of such termination if such default is capable
of being cured by the payment of money and at least forty-five (45) days in advance of the proposed
effective date of termination if such default is not capable of being cured by payment of money.
The provisions of Subsection 12.6 below shall apply if during such thirty or forty-five day
termination notice period any leasehold mortgagee shall (1) notify Lessor of such leasehold
mortgagee’s desire that the Lease not terminate; (2) pay or cause to be paid all Base Rent, Base
Percentage Rent, Secondary Percentage Rent or other payments then due or in arrears as specified in
the termination notice to such leasehold mortgagee and which may become due during the thirty or
forty-five day period; and (3) comply or in good faith, with reasonable





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diligence and continuity, commence to comply with all nonmonetary requirements of this Lease when
in default and reasonably susceptible of being complied with by such leasehold mortgagee, provided
however, that such leasehold mortgagee shall not be required to cure or commence to cure any
default consisting of Lessee’s failure to satisfy and discharge any lien, charge or encumbrance
against the Lessee’s interest in the Lease or the Premises junior in priority to the lien of the
mortgage held by such leasehold mortgagee.




          12.5. If Lessor shall terminate this Lease by reason of any default of Lessee, and the
leasehold mortgagee shall proceed in the manner provided for by Subsection 12.4 of this section,
the specified date of termination of the Lease as fixed by Lessor in its termination notice shall
be extended for a period of six (6) months provided that such leasehold mortgagee shall, during
such six (6) month period: (1) pay or cause to be paid the Base Rent, Base Percentage Rent,
Secondary Percentage Rent and other monetary obligations attendant under this Lease (including
without limitation the payment of premiums for the insurance required under Section 8, below) as
the same become due and continue its good faith efforts to perform all of Lessee’s obligations
under this Lease excepting (A) obligations of Lessee to satisfy or otherwise discharge any lien,
charge or encumbrance against Lessee’s interest in this Lease or the Premises junior in priority to
the lien on the mortgage held by leasehold mortgagee and (B) nonmonetary obligations then in
default and not reasonably susceptible to being cured by leasehold mortgagee, and (2) if not
enjoined or stayed, take steps to acquire or sell Lessee’s interest in this Lease by foreclosure of
the leasehold mortgage or other appropriate means and prosecute the same to completion with due
diligence.




          12.6. If at the end of such six (6) month period such leasehold mortgagee is complying with
Subsection 12.5 this Lease shall not then terminate and the term for completion of such leasehold
mortgagee of its proceedings to foreclose its mortgage shall continue as long as such leasehold
mortgagee is enjoined or stayed from foreclosing and thereafter so long as such leasehold mortgagee
proceeds to complete steps to acquire or sell Lessee’s interest in this Lease by foreclosure of the
leasehold mortgage or upon other appropriate means by reasonable diligence and continuity. Nothing
in this subsection however shall be construed to extend the Lease beyond the original Term thereof
as extended by a renewal option properly exercised by Lessee or leasehold mortgagee nor to require
leasehold mortgagee to continue such foreclosure proceedings after the default has been cured. If
the default shall be cured and the leasehold mortgagee shall discontinue foreclosure proceedings,
this Lease shall continue in full force and effect as if Lessee had not defaulted under the Lease.




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          12.7. If the leasehold mortgagee is complying with Subsection 12.5, upon the acquisition of
Lessee’s estate herein by such leasehold mortgagee or its designee or any purchaser at a
foreclosure sale or otherwise this Lease shall continue in full force and effect as if Lessee had
not defaulted under this Lease.




          12.8. For purposes of this Lease the making of a leasehold mortgage shall not be deemed to
constitute an assignment or transfer of this Lease nor shall any leasehold mortgagee, as such, be
deemed to be an assignee or transferee of this Lease. Furthermore, the making of a leasehold
mortgage shall not be deemed to require such leasehold mortgagee, as such, to assume the
performance of any of the terms, covenants or conditions on the part of the Lessee to be performed
hereunder, but the purchaser at any sale of this Lease in any proceedings for the foreclosure of
any leasehold mortgage or the assignee or transferee of this Lease under any instrument of
assignment or transfer in lieu of foreclosure of any leasehold mortgage shall be deemed to be an
assignee or transferee and shall be deemed to have agreed to perform all the terms, covenants and
conditions on the part of the Lessee to be performed hereunder from and after the date of such
purchase and assignment but only so long as such purchaser or assignee is the owner of the
leasehold estate.




          12.9. Any leasehold mortgagee or other acquirer of the leasehold estate of Lessee pursuant to
foreclosure, assignment in lieu of foreclosure or other proceedings may, upon acquiring Lessee’s
leasehold estate, without further consent of Lessor, sell and assign the leasehold estate on such
terms and to such persons and organizations as are acceptable to such mortgagee or acquirer and
thereafter be relieved of all obligations under this Lease; provided that such assignee delivers to
Lessor its written agreement to be bound by all the provisions of this Lease and such assignee has
a “Net Worth” equal to or in excess of Lessee’s as of the date that Lessee commences gaming
operations increased by a percentage equal to the increase, if any, in the Consumer Price Index,
All Urban Consumers, for the period between the date hereof and the date of the proposed transfer.
The term “Net Worth” shall mean the excess of assets over liabilities as shown on an entity’s
balance sheet prepared in accordance with sound accounting principles.




          12.10. Notwithstanding any other provision of this Lease, any sale of this Lease in any
proceeding for the foreclosure or any leasehold mortgage or assignment or transfer of this Lease in
lieu of foreclosure of any leasehold mortgage shall be deemed to be a permitted transfer or
assignment of this Lease and Lessor hereby consents to such assignment and transfer. Lessor agrees
to execute such additional documents, agreements and instruments as may reasonably be required to
encourage or facilitate a leasehold mortgage.




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     Section 13. Improvements.



     Upon expiration or termination of this Lease, all improvements to the Premises (including site
improvements, buildings, and non-trade fixtures) shall remain with the Premises and become the
property of the Lessor except equipment (including without limitation gaming equipment), furniture
and furnishings, trade fixtures and any vessel, boat or barge (including without limitation any
dam, supporting structure or moorings to the extent Lessee desires to remove such items), all of
which shall remain the property of Lessee and may be removed by Lessee. Upon removal of such
property, Lessee shall repair any damage to the Premises caused by the removal. If Lessee desires
to use the existing structures on the Premises, the Lessee shall have the right to make
alterations, improvements and changes to the structures now located on said Premises as provided in
Section 2.2. All alterations, improvements and changes or additions or fixtures of a permanent
nature made to any such structures shall be the property of Lessor and Lessee shall only have a
leasehold interest therein; provided, however, Lessee may at any time remove from the Premises any
alteration, improvement, change or addition, including fixtures, if such removal may be made
without damage to the structure or to the Premises. Lessee shall raze and remove the office
building and shop building located on the Premises as part of its site preparation, and prior to
such removal Lessee shall pay to Lessor $112,500 for the office building and $250,000 for the shop
building. Lessor shall have reasonable access to the Premises to remove the overhead gantry crane
and fixtures owned by Lessor and located on the Premises.



     Section 14. Sheriff’s Use.



     Lessor and Lessee hereby consent to the use of the shop building on the Premises by the
Washington County Sheriff’s Rescue Unit until such time as Lessee needs use of this part of the
Premises. Attached as Exhibit “B” is a letter dated July 6, 1994, from the Washington County
Sheriff’s Department setting forth the terms and conditions of the use of the property by the
rescue unit. This letter is incorporated for all purposes herein. Lessee agrees to give seven (7)
days notice to vacate the Premises to the rescue unit at such time as Lessee needs possession of
this portion of the Premises.



     Section 15. Licenses.



          15.1. Both Lessor and Lessee shall use their best efforts to secure the necessary approval
and licenses for Lessee to operate a gaming facility at the Premises, including approvals and
licenses from the Army Corps of Engineers and local building authorities. If Lessor is not
approved by the Gaming Commission and Lessor does not obtain such approval at its sole expense
within ninety (90) days of such disapproval by the Gaming Commission, then Lessee shall have the
option to immediately




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terminate this Lease and no rent shall be due for the period following the Gaming Commissions
initial disapproval. If Lessee fails to obtain the approval of the Gaming Commission for operation
of a casino/gaming facility, Lessee at its option may terminate this Lease by giving thirty (30) days prior written notice of termination to Lessor.




          15.2. Lessee represents to Lessor that Lessee will use due diligence to secure site approval
from the State Gaming Commission together with its permit to improve and utilize the property for
gaming purposes from the Corp of Engineers.




          15.3. Lessee shall commence substantial improvements to the Premises within sixty (60) days
after it receives a 404 permit from the Army Corps of Engineers and necessary building permits from
local authorities with respect to the development of the Premises. Lessee shall make improvements
to the Premises costing in excess of $1,000,000.00 within twelve (12) months after Lessee secures
such permit. For these purposes, the cost of improvements shall include the cost of any hotel
built on the Premises by Lessee, Subtenant, or any sublessee.




     Section 16. Waiver.



     The waiver by Lessor of, or the failure of Lessor to take action with respect to, any breach
of any term, covenant, or condition contained in this Lease Agreement shall not be deemed to be a
waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term,
covenant, or condition contained in this Lease Agreement.



     Section 17. Effect of Lessee’s Holding Over.



     Any holding over after the expiration of the term of this Lease Agreement, with the consent of
Lessor, shall be construed to be a tenancy from year-to-year, at the same Base Rental, Base
Percentage Rent and Secondary Percentage Rent or Percentage Rent as required to be paid by Lessee
for the period immediately prior to the expiration of the term of this Lease Agreement, and shall
otherwise be on the terms and conditions specified in this Lease Agreement, so far as applicable.



     Section 18. Parties Bound.



     The covenants and conditions contained in this Lease Agreement shall, subject to the
provisions as to assignment, transfer, and subletting, apply to and bind the successors and assigns
of all of the parties to the Lease Agreement.



     Section 19. Time of the Essence.



     Time is of the essence of this Lease Agreement, and of each and every covenant, term,
condition, and provision of this Lease Agreement.



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     Section 20. Section Captions.



     The captions appearing under the section number designations of this Lease Agreement are for
convenience only and are not a part of this Lease Agreement and do not in any way limit or amplify
the terms and provisions of this Lease Agreement.



     Section 21. Governing Law.



     It is agreed that this Lease Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of Mississippi including but not limited to the Mississippi
Gaming Control Act.



     Section 22. Entire Agreement.



     This Lease Agreement shall constitute the entire agreement between the parties. Any prior
understanding or representation of any kind preceding the date of this Lease Agreement shall not be
binding upon either party except to the extent incorporated in this Agreement.



     Section 23. Modification of Agreement.



     Any modification of this Lease Agreement or additional obligation assumed by either party in
connection with this Lease Agreement shall be binding only if evidenced in a writing signed by each
party or an authorized representative of each party.



     Section 24. Additional Documents.



     The parties agree to execute whatever papers and documents may be necessary to effectuate the
terms of this Lease Agreement. At the request of Lessee, Lessor shall execute an estoppel
certificate from time to time in a form reasonably satisfactory to Lessee.



     Section 25. Notice.



     Any notice due hereunder shall be deemed sufficient notice if mailed, postage prepaid, United
States Mail, to Lessor or to Lessee at the following addresses or such other addresses as they may
designate:



	 	 	 	 	 	 	 
	 

	 	If to Lessor:
	 	Mr. D. John Nichols
	 	 
	 

	 	 	 	Greenville Marine Corporation	 	 
	 

	 	 	 	Post Office Box 539	 	 
	 

	 	 	 	Greenville, Mississippi 38702-0539	 	 
	 
	 	 	 	 	 	 
	 

	 	With a copy to:
	 	L. Carl Hagwood	 	 
	 

	 	 	 	Campbell, DeLong, Hagwood & Wade	 	 
	 

	 	 	 	Post Office Box 1856	 	 
	 

	 	 	 	Greenville, Mississippi 38702-1856	 	 






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	 	If to Lessee:
	 	Rainbow Entertainment, Inc.
	 	 
	 

	 	 	 	5175 Elmore Road, Suite 3	 	 
	 

	 	 	 	Memphis, Tennessee 38134	 	 
	 
	 	 	 	 	 	 
	 

	 	With a copy to:
	 	Wimar Tahoe Corporation	 	 
	 

	 	 	 	(proposed subtenant)	 	 
	 

	 	 	 	207 Grandview Drive	 	 
	 

	 	 	 	Ft. Mitchell, KY 41017	 	 
	 

	 	 	 	Attn: William C. Beegle, Vice	 	 
	 

	 	 	 	President	 	 






     Section 26. Default.



     Any one or more of the following events shall constitute an “Event of Default”:



          26.1. Failure of the Lessee to make payments of Base Rent, Percentage Base Rent, or Secondary
Percentage Rent when due hereunder and the expiration of seven (7) days after Lessee receives
written notice from Lessor of such nonpayment.




          26.2. A vacation or abandonment of the Premises after gaming operations have first commenced.
Vacation or abandonment of the Premises shall include the failure to occupy the Premises for a
continuous period of sixty (60) days or more whether or not Rent is paid.




          26.3. The breach by Lessee of any of the covenants, conditions or provisions of this Lease
when such breach shall continue for a period of thirty (30) days after Lessee shall have received
written notice thereof from Lessor; provided however, that if the nature of the Lessee’s
noncompliance is such that more than thirty (30) days are reasonably required for its cure then
Lessee shall not be deemed to be in default if Lessee commences such cure within said thirty (30)
day period and thereafter diligently pursues such cure to completion.




          26.4. The making by Lessee of any general arrangement or general assignment for the benefit
of creditors, Lessee becoming a debtor as defined in 11 U.S.C. Section 101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days), or the appointment of a trustee or receiver to take possession of substantially all of
Lessee’s assets located at the Premises when such is not discharged within thirty (30) days.




     Section 27. Remedies.



     Upon any Event of Default, Lessor may at any time thereafter with thirty (30) days prior
written notice terminate Lessee’s right to possession of the Premises in which case this Lease and
the term thereof shall terminate and Lessee shall immediately surrender possession of the Premises
to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages



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incurred by Lessor by reason of Lessee’s default including but not limited to the cost of
recovering possession of the Premises, and the then present value of the amount by which the unpaid
Base Rent for the balance of the Term after the time of such default exceeds the amount of rent
that would be paid for the Premises by a new tenant if reasonable efforts were used by Lessor to
relet the Premises. In no event shall Lessor have any lien or claim against Lessee’s assets
including without limitation any lien against or on any vessel, barge or boat of Lessee.




     Section 28. Amendment.



     This Amended and Restated Lease Agreement amends and restates the Lease between the parties in
its entirety and renders void all previous leases, documents and amendments between them. The
failure of the Lessee to perform any duties or obligations contained in the original Lease with
Lessor, as amended, (including but not limited to the failure of Lessee to pay Lessor $250,000.00
under Section 10 of the Second Lease Amendment) shall not constitute a default or breach of this
Amended and Restated Lease Agreement.



     Section 29. Environmental Matters.



          29.1. Lessor hereby represents and warrants to Lessee that to the best of Lessor’s knowledge
no “Hazardous Substance” is located on the Premises.




          29.2. Lessor hereby represents and warrants to Lessee that Lessor has not released, generated,
deposited, located or stored any Hazardous Substance on the Premises.




          29.3. For purposes of this Agreement the term “Hazardous Substance” means any substance,
material, pollutant or contaminant the use, disposal or storage of which is regulated under any
environmental law, statute, regulation, rule or court decision.




     Section 30. Memorandum of Lease.



     Lessor and Lessee shall execute and record a Memorandum of this Lease in the real estate
records of the county in which the Premises are located.



     IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed as of the date
indicated above.



	 	 	 	 	 	 	 	 	 	 	 
	GREENVILLE MARINE CORPORATION	 	 	 	RAINBOW ENTERTAINMENT, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BY:

	 	/s/ D. John Nichols
 

D. John Nichols, President
	 	 	 	BY:
	 	/s/ Marvin Cato
 

Marvin Cato, President
	 	 






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ALEXANDER ENGINEERING, P.A.

346 S. GAMWYN DRIVE, P.O. BOX 1281

GREENVILLE, MISSISSIPPI 38701

(601) 332-1655




DESCRIPTION:



Commencing at Station 213 + 65.16 of the Bank Protection Work Base Line; thence South 42 degrees 06
minutes 10 seconds East 15.26 feet to an iron pipe and the Point of Beginning of the tract herein
described; thence South 33 degrees 06 minutes 34 seconds West 434.39 feet; thence South 44 degrees
27 minutes 49 seconds West 143.39 feet to an iron pipe; thence South 50 degrees 28 minutes 46
seconds West 26.29 feet to an iron pipe; thence North 42 degrees 06 minutes 10 seconds West 126.60
feet to an iron pipe on the high bank of Lake Ferguson; thence continuing North 42 degrees 06
minutes 10 seconds West 147 feet to the mean low water mark of Lake Ferguson; thence meandering
said low water mark the following three calls: North 26 degrees 57 minutes 24 seconds East 630.66
feet; North
33 degrees 06 minutes 34 seconds East 60.00 feet; North 37 degrees 34 minutes East 187.63 feet; thence South 42 degrees 06 minutes 10 seconds East 147 feet to an
iron pipe on the high bank of Lake Ferguson; thence continuing South 42 degrees 06 minutes 10
seconds East 222.30 feet; thence South 33 degrees 06 minutes 34 seconds West 250.90 feet to the
Point of Beginning, and being located in Section 4, Township 18 North Range 8 West, Washington
County, Mississippi.



I certify that I have made a survey of the lands shown hereon, and that the same is true and
correct to the best of my knowledge and belief.




	 	 	 	 	 
	/s/ G.E. Alexander
 

G.E. Alexander, Jr., P.E., P.L.S.

February 10, 1995

	 	 	 	 


























 





STATE OF MISSISSIPPI




COUNTY OF WASHINGTON




     This day personally appeared before me, the undersigned authority in and for the State and
County aforesaid, D. John Nichols, President of Mississippi Marine Corporation, a
Mississippi corporation, who acknowledged that for and on its behalf, he signed, sealed and
delivered the foregoing Amended and Restated Lease Agreement on the day and year therein mentioned
as its act and deed, being first duly authorized so to do.



     Given
under my hand and official seal of office, this the 13th day of March, 1995.



	 	 	 	 	 
	 

	 	/s/ [ILLEGIBLE]
	 	 
	 

	 	 	 	 
	 

	 	Notary Public	 	 






[ILLEGIBLE]



My Commission Expires: August 7, 1998




STATE OF MISSISSIPPI




COUNTY OF WASHINGTON




     This day personally appeared before me, the undersigned authority in and for the State and
County aforesaid, Marvin Cato, President of Rainbow Entertainment, Inc., who acknowledged that for
and on its behalf, he signed, sealed and delivered the foregoing Amended and Restated Lease
Agreement on the day and year therein mentioned as its act and deed, being first duly authorized
so to do.



     Given under my hand and official seal of office, this the 13th day of March, 1995.



	 	 	 	 	 
	 

	 	/s/ [ILLEGIBLE]
	 	 
	 

	 	 	 	 
	 

	 	Notary Public
	 	 





[ILLEGIBLE]






My
Commission Expires: August 7, 1998