Exhibit 10.29

DEVELOPMENT AND HOST COMMUNITY AGREEMENT

BETWEEN

THE CITY OF WAUKEGAN AND

FHR-ILLINOIS, LLC

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(THE TEMPORARY BY AMERICAN PLACE AND

THE AMERICAN PLACE CASINO)

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DATED AS OF JANUARY 18, 2023

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TABLE OF CONTENTS

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DEVELOPMENT AND HOST COMMUNITY AGREEMENT

BETWEEN THE CITY OF WAUKEGAN AND FHR-ILLINOIS LLC

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(THE TEMPORARY BY AMERICAN PLACE AND

THE AMERICAN PLACE CASINO)

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THIS DEVELOPMENT AND HOST COMMUNITY AGREEMENT (“Agreement”) is dated as of January 18, 2023 (“Effective Date”), by and between the CITY OF WAUKEGAN, ILLINOIS, an Illinois home rule municipal corporation (“City”), and FHR-ILLINOIS LLC a Delaware limited liability company (“Developer”).

R E C I T A L S

NOW, THEREFORE, in consideration of their mutual execution and delivery of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and pursuant to the City’s statutory and home rule powers, the Parties hereby agree as follows:

The Recitals set forth above are true and correct in all material respects, form a material part of this Agreement, and are hereby incorporated by reference.

The terms defined in this Section 2 have the meanings indicated for purposes of this Agreement.  Capitalized terms which are used primarily in a single Section of this Agreement are defined in that Section.

The City hereby finds that the development, construction, operation, and maintenance of the Project will: (i) be in the best interest of the City; (ii) contribute to the objectives of providing and preserving gainful employment opportunities for residents of the City; (iii) support and contribute to the economic growth of the City including supporting and utilizing local and small businesses, minority, women and veteran business enterprises; (iv) attract commercial and industrial enterprises, promote the expansion of existing enterprises, combat community blight and deterioration, and improve the quality of life for residents of the City and the greater Lake County region; (v) support and promote tourism in the City and the State; and (vi) provide the City with additional revenue.

This Agreement, along with the Ground Lease, replaces the Temporary Construction Easement and that certain “Memorandum of Key Terms,” dated as of May 3, 2022 between the Parties, both of which are hereby terminated as of the Effective Date and shall have no further legal force or effect.  This Agreement, along with the Ground Lease, as both documents may be amended, addended, supplemented, or otherwise modified from time to time, shall govern the relationship between the Parties and the development, construction, operation, and maintenance of the Project on the Development Property. The provisions of this Agreement, unless terminated pursuant to the terms of this Agreement, run with and bind the Development Property and inure to the benefit of, are enforceable by, and obligate the City, Developer, and any of their respective, grantees, successors, assigns, and transferees, including all permitted successor legal or beneficial owners of all or any portion of the Development Property. The City will not have any management or oversight rights over the Project or the Development Property except those voluntarily provided in this Agreement.  

The City’s and Developer’s obligations under this Agreement are subject to and contingent upon the satisfaction of the following conditions precedent, each in form and substance reasonably satisfactory to the City (collectively, the “Closing Conditions”):

The term of this Agreement commences on the Effective Date and continues until the expiration of the Owner’s License issued to Developer unless (i) sooner terminated as provided herein and except as to those provisions that by their terms survive or (ii) extended as provided in the next sentence. The term of this Agreement will automatically be extended upon any and each renewal of Developer’s Owner’s License; provided, that at the time of each extension Developer has received no written notice of an Event of Default for a Default which remains uncured or with respect to which Developer is not in the process of diligently pursuing a cure. The term of this Agreement, including any extensions thereof, is referred to as the “Term.”

The Parties agree and acknowledge that the above-described Project Milestones represent the outside dates upon which Developer must achieve each such Project Milestone and, if a particular Project Component is Complete and ready to be opened to the public prior to Completion of all Project Components for a particular Phase, Developer may open such Project Component prior to Completion and opening of all other Project Components for such Phase.

c.Phase 1 Project Component Exception. Developer intends for all Phase 1 Project Components, including the Boutique Hotel and Entertainment Venue, to open simultaneously.  However, the Parties recognize that unplanned events may cause delays and require the Gaming Area of Permanent Facility to open to the public before the other Project Components of the Permanent Facility.  For each day that the Gaming Area of the Permanent Facility is open for business to the general public prior to either the Boutique Hotel or the Entertainment Venue attaining Operations Commencement, a fee equal to $750 per day (the “Late Opening Fee”) shall accrue.  If the Boutique Hotel and Entertainment Venue attain Operations Commencement within 120 days of the Gaming Area of the Permanent Facility attaining Operations Commencement (the “Redemption Period”), then the accrued Late Opening Fee shall be fully waived and reduced to zero.  If, however, the Boutique Hotel and Entertainment Venue have not attained Operations Commencement by the expiration of the Redemption Period, then the Late Opening Fee accrued for the Redemption Period shall be due and payable to the City on the Business Day immediately following expiration of the Redemption Period and, further, the Late Opening Fee shall continue to accrue for each day thereafter until the Boutique Hotel and Entertainment Venue have both attained Operations Commencement and such accrued Late Opening Fees shall be payable, in arrears, within five Business Days after the end of each calendar month until paid in full.  The Redemption Period will be extended day-for-day for any period of time Developer is awaiting permits from the City, County, or other municipal jurisdictions after timely submitting all necessary applications, plans, and fees.

The Final Project Plan will be comprised collectively, of those plans and specifications for the Project and each of its Phases to be approved by the City Council or City staff pursuant to the Development Approvals, in accordance with Section 4 and the Requirements of Law.  

a.Phase 0. The plans and related documents approved by the City Council through the adoption of the Prior Approvals constitute the Final Project Plan for Phase 0.

b.Phase 1. After adoption by the City Council of the Future Approvals, the plans and related documents approved by the City through the adoption of the Future Approvals will be the Final Project Plan for Phase 1.  Upon the date that the Future Approvals for Phase 1 and all plans and specifications for any subsequent Phase of the Project are approved, those plans and specifications will, automatically and without further action by the City Council and the Parties, be deemed to be incorporated into, and made a part of, the Final Project Plan and will replace the Project Concept Plan for that Phase.

As of the Effective Date of this Agreement, the City has granted Developer the following Development Approvals (collectively, the “Prior Approvals”):

Concurrently with the consideration of approval and execution of this Agreement, the City will consider adoption of the following Development Approvals (collectively, the “Concurrent Approvals”):

Notwithstanding anything contained in this Agreement or the Ground Lease to the contrary, as between the City and Developer and Developer’s successors and assigns, the City shall have no right to enforce the obligations of that certain Redevelopment Agreement entered into by the City and SDC Waukegan Venture, LLC dated as of August 1, 2003 as amended by that certain Amendatory and Supplemental Agreement dated as of August 27, 2005. This Section 4.7 does not limit or waive Developer’s obligations to pay the Impositions set forth in Section 5.1(B) of the Ground Lease.

Unless otherwise provided in this Agreement, either specifically or in context, in the event of a conflict between or among any of the plans or documents listed as or within items (i) through (viii) of this Section 5.1, the plans or documents shall control in the priority order set forth above in items (i) through (viii) of this Section 5.1.

The Parties acknowledge the Project Concept Plan and Project Description include a description of Phase 2. As of the Effective Date, Phase 2 consists of Developer’s construction of the Phase 2 Hotel on the Development Property.  The Parties agree, however, that if the Developer, in consultation with the City, determines that market conditions do not warrant construction of the Phase 2 Hotel, then Developer, in consultation with the City, will consider other casino-related amenities (in lieu of the Phase 2 Hotel) to be constructed on the Development Property as Phase 2.  In any event, Developer’s investment in Phase 2 will be no less than $50 million, and Developer will commence construction of Phase 2 no later than five (5) years of the Operations Commencement Date (Phase 1).  Pursuant to Section 4.6.d., before the construction of Phase 2, Developer shall seek and the City shall consider (in accordance with their respective obligations set forth in Section 4.6.a. and Section 4.6.b.) approval of a Phase 2 site plan by the City Council and approval of a Phase 2 engineering plan by the City Engineer, which approvals and plans shall be incorporated into this Agreement through the execution of an addendum to this Agreement.

Developer will use commercially reasonable efforts to deconstruct and remove the Phase 0 Project Components (to the extent that they are not incorporated into Phase 1) no later than one hundred eighty (180) days after the Operations Commencement Date (Phase 1). Developer will conduct all demolition Work on the Development Property in full compliance with the demolition regulations of the City and Lake County and Permitted Construction Work Hours. Developer will remove and dispose of all debris resulting from demolition activities on the Development Property in compliance with all material Requirements of Law.

In addition to any other applicable provision of this Agreement and the Requirements of Law, after the Final Completion of the Temporary Facility, Developer may not commence any vertical construction for a particular Phase unless the City Engineer has determined that the construction of the following Site Improvements for that Phase are complete as required by this Agreement and Requirements of Law, except as may be authorized in writing by the City Engineer:

After commencement of construction for a Phase of the Project is authorized pursuant to this Agreement, Developer must pursue, or cause to be pursued, all required development, demolition, construction, and installation of Structures, buildings, Project Components and Site Improvements on the Development Property for that Phase in a diligent and expeditious manner, and in compliance with the applicable Development Approvals, the Final Project Plans, and material Requirements of Law. Developer will conduct all exterior construction Work on the Development Property in full compliance with the City’s Permitted Construction Work Hours.

The City has no obligation to issue a building permit for any Structure or Site Improvement related to the Permanent Facility or any subsequent Phase of the Project, and no construction may be commenced with respect to those Structures or Improvements, unless and until the Building Commissioner and the City Engineer have approved, in writing, the CSTM Plan, which approval shall not be unreasonably withheld. The City agrees to cause the CSTM Plan to be promptly and expeditiously reviewed by the Building Commissioner and the City Engineer in accordance with the City’s obligations under Section 4.6.b.

During construction of any of the Structures or Site Improvements related to the Permanent Facility on the Development Property, Developer must:

All installations made pursuant to this Section 6.6 must be maintained by Developer until Work on the Permanent Facility or any subsequent Phase of the Project is Complete.

In connection with construction of each Phase of the Project, Developer will construct the on and off-site improvements depicted on the Final Project Plan applicable to such Phase (“Site Improvements”), including water, sanitary sewer, the Right-of-Way Improvements, and the Stormwater Improvements.

All Site Improvements must be designed and constructed pursuant to and in accordance with the Final Project Plan and Development Approvals applicable to the particular Phase, and will be subject to the reasonable written satisfaction of the City Engineer in accordance with the Article 11 of the Subdivision Ordinance. All Work performed on the Site Improvements must be conducted in a good and workmanlike manner, and in compliance with the construction and completion requirements for each Phase of the Project, as well as all permits issued by the City for construction of the Site Improvements, and in accordance with all material Requirements of Law and First-Class Project Standards. The Site Improvements will be constructed in accordance with the demolition and construction standards set forth in Section 6.1 and Section 6.2 as well as the specific provisions of this Section 7.

Prior to commencing any construction of any Public Improvement, or of any part of any Phase of the Project that will affect existing utilities or roadways, Developer must meet with the City Engineer, or their designee, to develop a mutually-agreeable schedule for all such construction. The meeting must take place not less than one week prior to the commencement of any such construction. After the meeting, Developer must prepare and submit minutes of the meeting to the City Engineer. No such construction may occur prior to the approval by the City Engineer of the agreed-upon schedule, which approval shall not be unreasonably withheld.

Developer must provide, at its sole cost and expense, all engineering services for the design and construction of the Site Improvements, by a professional engineer responsible for overseeing the construction of the Site Improvements. Developer must promptly provide the City with the name of a local owner’s representative and a telephone number or numbers at which the owner’s representative can be reached at all times.

All Work on the Site Improvements is subject to inspection and approval by City representatives at all times to the extent and in the same manner as any other development project in the City. Developer will provide immediate access to the Development Property for the purpose of conducting these inspections during regular operating hours and within 12 hours outside of regular operating hours upon notice by the City. Access to portions of the Development Property or Project regulated by the IGB and subject to regulatory restrictions on public access will be provided by Developer in a manner compliant with the Requirements of Law.

After completion of Site Improvements for any Phase of the Project, Developer must submit to the City Engineer and the Building Commissioner final “as-built” plans: (a) related to drainage, grading, storm sewer, sanitary sewer and water mains, and associated Structures; and (b) for other final construction documents (in paper and, for Improvements, electronic format) as required and approved by the City Engineer and the Building Commissioner. The as-built plans must indicate, without limitation, the amount, in square feet, of impervious surface area on the Development Property. A licensed Professional Engineer (PE) and Professional Land Surveyor (PLS) registered in the State of Illinois must stamp the as-built site construction plans. The PE and/or PLS must stamp and sign the final engineering pages of the site construction plans, and the PLS must stamp and sign the final site survey.

Developer will at all times during the development, construction, operation, and maintenance of the Project, comply with the following additional commitments:

The Parties have entered into that certain Development Escrow Agreement dated as of February 28, 2022 (“Development Escrow Agreement”). Reimbursable Costs will be paid by Developer to the City in accordance with the procedures set forth in the Development Escrow Agreement.

Developer recognizes and acknowledges that the payments to be made by Developer under this Agreement and the Ground Lease (collectively, “Casino Agreements”, and such payments being referred to collectively as the “Developer Payments”) are: (a) being charged to Developer in exchange for particular governmental services which benefit Developer in a manner not shared by other members of society; (b) paid by Developer by choice in that Developer has voluntarily requested that the City serve as its host community and would not be obligated to pay such amounts but for such request; and (c) paid not to provide additional revenue to the City but to compensate the City for providing Developer with the services required to allow Developer to construct and operate the Project and to mitigate the impact of Developer’s activities on the City and its residents.

All amounts payable by Developer hereunder, including Developer Payments, shall bear interest at the Default Rate from the due date (but if no due date is specified, then fifteen (15) Business Days from demand for payment) until paid.  

The restrictions imposed by and under Sections 8.7 (Financing), 12 (Transfers of Obligations) and 12.2 (Transfer of Ownership Interests) (collectively, the “Restrictions”) will be construed and interpreted by the Parties as covenants running with the land. Developer agrees for itself, its successors and assigns to be bound by each of the Restrictions. The City shall have the right to enforce such Restrictions against Developer, its successors and assigns to or of the Project or any part thereof or any interest therein.

Within 10 Business Days of the Effective Date or such other date as agreed upon between Developer and the City’s Mayor, Developer and the City will deliver or cause to be delivered all of the Closing Deliveries, as the same may be waived or the time for delivery extended by the City and Developer. All costs associated with or arising from the production of the Closing Deliveries will the sole and exclusive responsibility of the Party responsible for the Closing Delivery.  

As a material inducement to the City to enter into this Agreement, Developer represents and warrants to the City that each of the following statements are true and accurate as of the Effective Date:

The City represents and warrants to Developer that each of the following statements is true and accurate as of the Effective Date:

Developer covenants that throughout the Term of this Agreement, Developer shall:

Developer shall:

Developer covenants that throughout the Term, Developer shall not:

To the extent Developer determines, in its reasonable judgment, that items Developer is obligated to furnish to the City under this Agreement contains material, non-public information of Developer or its Affiliates  (“Developer’s Confidential Items”), then the Developer may deliver such information to Developer’s legal counsel (or other designee), provide notice to the City of such delivery, and allow the City’s representative(s) the opportunity to inspect such information, during commercially reasonable hours and at a time that is mutually convenient for the Parties. The City shall not remove any original versions or copies of Developer’s Confidential Items from the offices of Developer’s counsel (or other designee), it being understood that Developer’s Confidential Items must remain in the possession of Developer’s counsel (or other designee) at all times.  

The following constitute an “Event of Default” under this Agreement:

arising under or from the terms and conditions of this Agreement, the Ground Lease, or the granting or denial of the Development Approvals to be granted by the City.

The termination events set forth above are in addition to any other rights the City or Developer may have to terminate this Agreement whether specified herein or otherwise available to the City under law.

The City and Developer covenant and agree that because of the difficulty and/or impossibility of determining the City’s damages upon the: (i) occurrence of an Event of Default pursuant to Section 11.1.l.; or (ii) suspension of Developer’s Owner’s License that results in  the Gaming Area to be closed for business, by way of detriment to the public benefit and welfare of the City through lost employment opportunities, lost tourism, degradation of the economic health of the City and loss of revenue, both directly and indirectly, Developer shall pay to the City, during the Damage Period, as hereinafter defined, and the City shall accept as an exclusive remedy, as liquidated damages and as a reasonable forecast of such potential damages, and not as penalties,  Two Thousand Five Hundred Dollars ($2,500) per calendar day. Developer agrees to waive any and all affirmative defenses that the amount of liquidated damages provided herein constitutes a penalty. For purposes of this Section 11.4, the “Damage Period” shall commence on the date the City delivers written notice to Developer of its election to receive liquidated damages pursuant to this Section 11.4 and shall continue until the date that such default is cured, the date such suspension expires, or the Gaming Area reopens for business, even if Developer’s Owner’s License remains suspended.

The covenants that Developer must perform under this Agreement for the City’s benefit are personal in nature. The City is relying upon Developer in the exercise of its skill, judgment, reputation and discretion with respect to the Project. Developer shall notify the City as promptly as practicable upon Developer becoming aware of any Transfer of any Direct or Indirect Interest in Developer other than such Transfers resulting solely from ownership of a Direct or Indirect Interest in a Publicly Traded Corporation. Any Transfer of a Direct or Indirect Interest in Developer other than a Permitted Transfer to a Permitted Transferee shall require the consent of the City, which consent shall not be unreasonably withheld, provided that the proposed transferee is qualified and approved by the IGB as suitable to be an owner of an Owner’s Licensee and Developer continues to be bound by the terms of this Agreement.

To assure that all grantees, successors, assigns, and transferees of Developer and all successor owners of all or any portion of Developer’s fee interest in the 10-Acre Parcel and leasehold interest in the City-Owned Parcel under the Ground Lease have notice of this Agreement and the obligations created by it, Developer must, from and after the Effective Date:

Developer shall maintain in full force and effect the types and amounts of insurance as set forth on Exhibit K.

Whenever, under the terms of this Agreement, Developer is required to maintain insurance, the City shall be named as an additional insured in all such insurance policies to the extent of its insurable interest. All policies of insurance provided for in this Agreement shall be effected under valid and enforceable policies, in commercially reasonable form issued by responsible insurers meeting the requirements set forth in Exhibit K. As promptly as practicable prior to the expiration of each such policy, Developer shall deliver to the City an Accord certificate, together with proof reasonably satisfactory to the City that the full premiums have been paid or provided for at least the renewal term of such policies and as promptly as practicable, a copy of each renewal policy.

Each such policy of insurance to be provided hereunder shall contain, to the extent obtainable on a commercially reasonable basis, an agreement by the insurer that such policy shall not be canceled or modified without at least thirty (30) days prior written notice to the City.

Developer shall observe and comply with the requirements of all policies of public liability, fire and other policies of insurance at any time in force with respect to the Project and Developer shall so perform and satisfy the requirements of the companies writing such policies.

Any insurance provided for in this Section 13 may be provided by blanket and/or umbrella policies issued to Developer covering the Project and other properties owned or leased by Developer; provided, however, that the amount of the total insurance allocated to the Project shall be such as to furnish in protection the equivalent of separate policies in the amounts herein required without possibility of reduction or coinsurance by reason of, or damage to, any other premises covered therein, and provided further that in all other respects, any such policy or policies shall comply with the other specific insurance provisions set forth herein and Developer shall make such policy or policies or a copy thereof available for review by the City.

In the event of damage to or destruction of Structures or Site Improvements that are components of the Project or any part thereof by fire, Casualty or otherwise, Developer, at its sole expense, shall promptly perform Casualty Restoration of the improvements, as nearly as possible to the same condition that existed prior to such damage or destruction using materials of an equal or superior quality to those existing in the improvements prior to such Casualty. Developer shall obtain a temporary certificate of occupancy as soon as practicable after the completion of such Casualty Restoration. If neither Developer nor any Mortgagee commences the Casualty Restoration of the improvements or the portion thereof damaged or destroyed promptly following such damage or destruction and adjustment of its insurance proceeds, or, having so commenced such Casualty Restoration, fails to proceed to complete the same with reasonable diligence in accordance with the terms of this Agreement, the City may, but will have no obligation to, complete such Casualty Restoration at Developer’s expense. Upon the City’s election to so complete the Casualty Restoration, Developer immediately shall permit the City to utilize all insurance proceeds which shall have been received by Developer, minus those amounts, if any, which Developer shall have applied to the Casualty Restoration, and if such sums are insufficient to complete the Casualty Restoration, Developer, on demand, shall pay the deficiency to the City. Each Casualty Restoration shall be done subject to the provisions of this Agreement.

Except as otherwise expressly provided in this Section 14.3, no destruction of or damage to the Project, or any portion thereof or property therein by fire, flood or other Casualty, whether such damage or destruction be partial or total, shall permit Developer to terminate this Agreement or relieve Developer from its obligations hereunder.  Notwithstanding anything to the contrary in this Agreement, if any Casualty is a Substantial Casualty, Developer may, by notice to the City, given within six (6) months after the Casualty, terminate this Agreement effective sixty (60) days after such notice.  

If a Major Condemnation of the Project or the Development Property occurs, this Agreement will terminate, and no Party will have any claims, rights, obligations, or liabilities towards any other Party arising after termination, other than as provided for herein. If a Minor Condemnation occurs or the use or occupancy of the Project or any part thereof is temporarily requisitioned by a civil or military governmental authority for not more than thirty (30) days, then (a) this Agreement shall continue in full force and effect; (b) Developer shall promptly perform all Casualty Restoration required in order to repair any physical damage to the Project caused by the Condemnation, and to restore the Project, to the extent reasonably practicable and feasible, to its condition immediately before the Condemnation; provided, however, that if the Ground Lease is in effect, the foregoing shall not limit Tenant’s right to terminate the Ground Lease in accordance with the terms and conditions of Section 12.7 of the Ground Lease, in which case this Agreement shall terminate pursuant to Section 11.3(a)(v).

Notwithstanding anything in this Agreement to the contrary, if the Ground Lease is in effect, then the following provisions of this Section 14.4 shall apply only to the 10-Acre Parcel and the portion of the Project located on the 10-Acre Parcel. After the termination of the Ground Lease or the exercise of the Purchase Option, the provisions of Section 14.4 shall apply to the entire Development Parcel.

If a Minor Condemnation occurs, any Proceeds in excess of Twelve Million Five Hundred Thousand Dollars ($12,500,000) will be and are hereby, to the extent permitted by applicable law and agreed to by the condemnor, assigned to and shall be withdrawn and paid into an escrow account to be created by an escrow agent (“Escrow Agent”) selected by (i) the first Mortgagee if the Project is encumbered by a first Mortgage; or (ii) Developer and the City in the event there is no first Mortgagee, within ten (10) days of when the Proceeds are to be made available. If Developer or the City for whatever reason cannot or will not participate in the selection of the Escrow Agent, then the other party shall select the Escrow Agent. Nothing herein shall prohibit the first Mortgagee from acting as the Escrow Agent. This transfer of the Proceeds, to the extent permitted by applicable law and agreed to by the condemnor, shall be self-operative and shall occur automatically upon the availability of the Proceeds from the Condemnation and such Proceeds shall be payable into the escrow account on the naming of the Escrow Agent to be applied as provided in this Section 14.4.

The Escrow Agent shall deposit the Proceeds in an interest-bearing escrow account and any after tax interest earned thereon shall be added to the Proceeds. The Escrow Agent shall disburse funds from the Escrow Account to pay the cost of the Casualty Restoration in accordance with the procedure described in Section 14.2(b), (c) and (d). If the cost of the Casualty Restoration exceeds the total amount of the Proceeds, Developer shall be responsible for paying the excess cost. If the Proceeds exceed the cost of the Casualty Restoration, the Escrow Agent shall distribute the excess Proceeds, subject to the rights of the Mortgagees. Nothing contained in this Section 14.4 shall impair or abrogate any rights of Developer against the condemning authority in connection with any Condemnation. All fees and expenses of the Escrow Agent shall be paid by Developer.

An event of “Force Majeure” shall mean the following events or circumstances, to the extent that they delay or otherwise adversely affect the performance beyond the reasonable control of Developer, or its agents and contractors, of their duties and obligations under this Agreement or the Ground Lease:

Developer shall promptly notify the City in writing of the occurrence of an event of Force Majeure, of which it has knowledge, describe in reasonable detail the nature of the event and provide a good faith estimate of the duration of any delay expected in Developer’s performance obligations.

Notwithstanding any other provision of this Agreement to the contrary, Developer shall be entitled to an adjustment in the time for or excuse of the performance of any duty or obligation of Developer under this Agreement for Force Majeure events, but only for the number of days due to and/or resulting as a consequence of such causes and only to the extent that such occurrences actually prevent or delay the performance of such duty or obligation or cause such performance to be commercially unreasonable.

Any notice required to be given under this Agreement must be in writing and must be delivered (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid, or (iv) by electronic mail. Electronic mail notices will be deemed valid and received by the addressee when delivered by e-mail and (a) opened by the recipient on a business day at the address set forth below, and (b) followed by delivery of actual notice in the manner described in either (i), (ii) or (iii) above within three business days thereafter at the appropriate address set forth below. Unless otherwise expressly provided in this Agreement, notices will be deemed received upon the earlier of (a) actual receipt; (b) one business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (c) three business days following deposit in the U.S. mail, as evidenced by a return receipt. By notice complying with the requirements of this Section 17.1, each party will have the right to change the address or the addressee, or both, for all future notices to the other party, but no notice of a change of addressee or address will be effective until actually received.

If to the City:

Hon. Ann Taylor

Mayor, City of Waukegan

100 North Martin Luther King Jr. Avenue

Waukegan, Illinois 60085

mayor.taylor@waukeganil.gov

with copies to:

Noelle Kischer-Lepper

Director of Development and Planning

City of Waukegan

100 North Martin Luther King Jr. Avenue

Waukegan, Illinois 60085

Noelle.Kischer-Lepper@waukeganIL.gov

and

Stewart Weiss

Hart Passman

Elrod Friedman LLP

325 North LaSalle Street, Ste. 450

Chicago, Illinois 60654

Stewart.Weiss@elrodfriedman.com

Hart.Passman@elrodfriedman.com

If to Developer:

Jeff Babinski

General Manager

FHR-Illinois LLC

600 Lakehurst Road

Waukegan, IL 60085

jbabinski@americanplace.com

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with copies to:

Alex J. Stolyar

Chief Development Officer

FHR-Illinois LLC

c/o Full House Resorts Inc.

1980 Festival Plaza Dr., Suite 680

Las Vegas, NV 89135

astolyar@fullhouseresorts.com

and

Elaine Guidroz

General Counsel

FHR-Illinois LLC

c/o Full House Resorts Inc.

1980 Festival Plaza Dr., Suite 680

Las Vegas, NV 89135

eguidroz@fullhouseresorts.com

and

Kimberly M. Copp, Esq.

Cezar M. Froelich, Esq.

Taft Stettinius & Hollister LLP

111 E. Wacker Drive, Suite 2800

Chicago, Illinois 60601

cfroelich@taftlaw.com

kcopp@taftlaw.com

Additionally, if notice is required to be delivered to a Mortgagee pursuant to Section 8.7.e, then it shall be delivered to Mortgagee at the address provided in the mortgage.

The failure of either Party to promptly insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any exhibit hereto, or any other agreement contemplated hereby, shall not be deemed a waiver of any right or remedy that such Party may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision.

Additionally, no waiver of any provision of this Agreement will be deemed to or constitute a waiver of any other provision of this Agreement (whether or not similar) nor will any waiver be deemed to or constitute a continuing waiver unless otherwise expressly provided in this Agreement.

Unless otherwise provided in this Agreement, whenever the permission, authorization, approval, acknowledgement, or similar indication of assent of any Party to this Agreement, or of any duly authorized officer, employee, agent, or representative of any party to this Agreement, is required, the consent, permission, authorization, approval, acknowledgement, or similar indication of assent must be in writing.  For the purpose of this Section 17.3, email shall be deemed to be “writing.”

In construing this Agreement, plural terms are to be substituted for singular and singular for plural, in any place in which the context so requires.  This Agreement has been negotiated by the City and Developer, and the Agreement, including the exhibits and schedules attached hereto, shall not be deemed to have been negotiated and prepared by the City or Developer, but by each of them. This Agreement will be construed without regard to the identity of the Party who drafted the various provisions of this Agreement. Every provision of this Agreement will be construed as though all Parties to this Agreement participated equally in the drafting of this Agreement. Any rule or construction that a document is to be construed against the drafting party will not be applicable to this Agreement.

This Agreement will be interpreted according to the internal laws, but not the conflicts of laws rules, of the State of Illinois. The Parties expressly agree that the sole and exclusive place, status and forum of this Agreement shall be the City of Waukegan, Illinois. All actions and legal proceedings which in any way relate to this Agreement shall be solely and exclusively brought, heard, conducted, prosecuted, tried and determined within the City. It is the express intention of the Parties that the exclusive venue of all legal actions and procedures of any nature whatsoever which relate in any way to this Agreement shall be the 19th Judicial Circuit Court of Lake County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division (“Court”). The Parties waive their respective right to transfer or change the venue of any litigation filed in the 19th Judicial Circuit Court of Lake County, Illinois or the Northern District of Illinois, Eastern Division.

If, at any time during the Term, Developer is not a resident of the State or has no officer, director, employee, or agent thereof available for service of process as a resident of the State, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, director, employee, or agent available for service of process in the State, Developer or its assignee hereby designates the Secretary of the State, as its agent for the service of process in any court action between it and the City or arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State for service upon a non-resident.

This Agreement, and all the documents and agreements described or referred to herein, including the exhibits and schedules attached hereto, constitute the full and complete agreement between the Parties with respect to the subject matter hereof, and supersedes and controls in its entirety over any and all prior agreements, understandings, representations and statements whether written or oral by each of the Parties, including the Memorandum of Key Terms and the Temporary Construction Easement.

It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a day other than a Business Day, it shall be postponed to the next following Business Day. Unless otherwise specified in this Agreement, any reference to days in this Agreement will be construed to be calendar days. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event on which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless the last day is not a Business Day, in which event the period shall run until the end of the next day which is neither a Business Day. The final day of any period will be deemed to end at 5:00 p.m., Central prevailing time.

Exhibits A through O, referred to and attached to this Agreement, are each an essential part of this Agreement.

The Parties agree that nothing contained in this Agreement or any other documents executed in connection herewith is intended or shall be construed to establish the City and Developer as joint venturers or partners.

If this Agreement contains any unlawful provisions not an essential part of this Agreement and which shall not appear to have a controlling or material inducement to the making thereof, such provisions shall be deemed of no effect and shall be deemed stricken from this Agreement without affecting the binding force of the remainder. In the event any provision of this Agreement is capable of more than one interpretation, one which would render the provision invalid and one which would render the provision valid, the provision shall be interpreted so as to render it valid.

No approval to be made by the City under this Agreement or any inspection of the Work by the City shall render the City liable for failure to discover any defects or non-conformance with this Agreement, or a violation of or noncompliance with any federal, State or local statute, regulation, ordinance or code.

Subject to Section 17.7, time is of the essence in the performance of this Agreement.

The table of contents, headings, titles, and captions in this Agreement are for convenience of reference only and in no way define, limit, extend, or describe the scope or intent of this Agreement or in any way affect this Agreement.

This Agreement may not be amended, addended, supplemented, or otherwise modified except by a written instrument signed by the Parties.

The Parties acknowledge that the IGB may, subsequent to the Effective Date, promulgate regulations under or issue interpretations of or policies or evaluation criteria concerning the Act which regulations, interpretations, policies or criteria may conflict with, or may not have been contemplated by, the express terms of this Agreement. In addition, the Parties acknowledge that environmental permits and approvals may necessitate changes to this Agreement. In such event, the Parties agree to negotiate in good faith any amendment to this Agreement necessary to comply with the foregoing two sentences, whether such changes increase or decrease either of the Parties’ respective rights or obligations hereunder.

Unless otherwise explicitly provided in this Agreement, any reference to any Requirements of Law will be deemed to include any modifications of, or amendments to the Requirements of Law as may, from time to time, hereinafter occur.

The table of contents is for the purpose of convenience only and is not to be deemed or construed in any way as part of this Agreement or as supplemental thereto or amendatory thereof.

Except as expressly provided in the Releases and Section 15 (Indemnification), the provisions of this Agreement are and will be for the benefit of Developer and City only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement.

If, as a result of the Agreement, the City, the City Council, or any employee, agent, or representative of the City is required to be licensed or approved by the IGB, the reasonable costs of such licensing, approval or investigation shall be paid by Developer no later than ten (10) Business Days following receipt of a written request from the City.

The City and Developer will cooperate and work together in good faith to the extent reasonably necessary and commercially reasonable to accomplish the mutual intent of the Parties that the Project be successfully completed as expeditiously as is reasonably possible and operated and maintained in good standing.

The City shall, at any time and from time to time, upon not less than ten (10) Business Days prior written notice from any lender of Developer, execute and deliver to any lender of Developer an estoppel certificate in the form attached hereto as Exhibit L or as may be reasonably required by any such lender.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original document and together shall constitute one instrument.

The City will record this Agreement against the Development Property, at the sole cost and expense of Developer, with the Office of the Lake County Recorder of Deeds promptly following the full execution of this Agreement by the Parties.

Any reports or other items to be delivered or furnished to the City hereunder (other than notices, demands or communications under Section 17.1 (Notices)) shall be delivered or furnished to the attention of the Director of Planning & Zoning and/or Corporation Counsel of the City.

Any action, consent, or approval needed to be taken or given under this Agreement by the City may only be performed by the Mayor or his/her designee, to the extent provided for by the Code of Ordinances and any other Ordinance or Resolution duly adopted by the City subsequent to the Effective Date of this Agreement.  

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers on the date first set forth above at Waukegan, Illinois.

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