EXHIBIT 10.53
AMENDED AND RESTATED
EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into this ____ day of
___________________, 1999, by and between Iowa West Racing Association
(hereinafter referred to as "Iowa West"), an Iowa nonprofit corporation, and
Harveys Iowa Management Company, Inc. (hereinafter referred to as "Harveys"), a
Nevada corporation qualified to do business in Iowa.
WITNESSETH
WHEREAS, on or about August 22, 1994, Iowa West and Harveys entered
into that certain Excursion Boat Sponsorship and Operations Agreement (the
"Sponsorship Agreement"); and
WHEREAS, Paragraph 14(e) of the Sponsorship Agreement requires that any
amendment or supplementation of the Sponsorship Agreement would only be
effective if it was in writing between the parties thereto; and
WHEREAS, the parties do now wish to amend and restate the
Sponsorship Agreement as hereinafter set forth;
NOW THEREFORE in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, receipt whereof is
hereby acknowledged, it is hereby mutually understood and agreed as follows:
1. LICENSE APPLICATION.
Iowa West shall, each year, or as otherwise required, promptly
apply to the Iowa Racing and Gaming Commission (the "Commission") pursuant to
Chapter 99F as a sponsor for a license to conduct gambling games. Harveys will
promptly, each year, or as otherwise required, apply to the Commission for a
license to operate an excursion gambling boat under Chapter 99F.
2. CONDITIONS PRECEDENT TO SPONSORSHIP AND OPERATIONS
AGREEMENT.
This Agreement shall be effective only upon approval of this
Agreement, and any amendments thereto, by the Commission.
3. NON-ASSIGNABILITY OF LICENSES.
Neither party may assign any of its rights, duties or
obligations under any license issued by the Commission without the prior
approval of the Commission.
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4. LICENSE AGREEMENT AND OPERATION FEE.
(a) Harveys shall pay to Iowa West an operation fee equal to
3.69 percent of the Adjusted Gross Gaming Receipts generated by the excursion
gambling boat during the term of this Agreement and any extension. Such
operation fee shall be paid monthly, on or before the 10th day of the month
following the month in which such operation fee was generated. As used herein,
the term "Adjusted Gross Gaming Receipts shall have that same meaning as set
forth in Iowa Code Section 99F.1(1).
(b) Harveys shall be solely responsible for the payment of all
admission fees owing to the state and local governments under Sections99F.10 of
the Iowa Code, including admission fees relating to passengers with
complimentary passes. The parties agree that the fees set forth above are the
only sums to which Iowa West is entitled under this Agreement; all such fees
paid to Iowa West are deemed and agreed to be subject to the restrictions
imposed by Sections 99F.6(4) of the Iowa Code.
(c) Harveys shall pay to the Commission all the wagering taxes
imposed by Section 99F.11 of the Iowa Code.
(d) Harveys shall indemnify and hold Iowa West harmless from
any and all claims relating to all sums due for admission fees owing to any
government entity under Sections99F.10 of the Iowa Code; including all income or
excise taxes owed to the United States or any state government, and all wagering
taxes owing to the State of Iowa under Section 99F.11 of the Iowa Code.
5. LICENSE APPLICATION FEES.
Each party hereto shall be responsible for their own license
application fees and expenses resulting from this Agreement, and any application
fee required hereunder, including DCI investigation fees, attorneys fees in
connection with this Agreement, and the license applications to the Commission
contemplated hereby.
6. TERM OF THE AGREEMENT.
(a) This Agreement shall become effective at 12:01 A.M. on
the 1st day following both Commission approval and the close of escrow pursuant
to the Purchase Agreement between Iowa West and HBR Realty Company, Inc., and
shall terminate at 11:59 p.m. on December 31, 2010, unless extended pursuant to
6(b), below.
(b) Provided that Harveys is not in default of this
Agreement, Harveys shall have the option to extend the term of this Agreement
for five (5) succeeding three (3) year terms, provided Harveys shall give
written notice of its desire to exercise each
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such option, which notice shall be delivered to Iowa West on or before 180 days
prior to December 31 in the year in which each such option expires. If Harveys
desires to exercise such option, all the terms and conditions of this Agreement
shall be applicable to such extended term.
7. HOLD HARMLESS AND INSURANCE REQUIREMENTS.
During the term of this Agreement, Harveys shall indemnify,
defend and hold harmless Iowa West, its officers, directors, employees, and
agents, from and against any and all liabilities, obligations, claims, damages,
causes of action, cost and expenses imposed upon, incurred by, or asserted
against them by reason of all operations, whether insurable or not, and any
accident, injury to or death of persons, or loss of or damage to property
occurring on the excursion gambling boat. Harveys further covenants and agrees
that it will at its own expense procure comprehensive public liability insurance
insuring both Harveys and Iowa West in an amount not less than $5,000,000.00
single limit. Said liability insurance policy shall apply with respect to all
insurable operations and functions of the excursion gambling boat. A copy of
policies of insurance protecting the interests of Iowa West shall be forwarded
directly to Iowa West.
8. NON-EXCLUSIVITY.
It is understood that Iowa West may enter into other
sponsorship agreements and in that event Iowa West agrees that the terms of such
agreements shall be at least as favorable to Iowa West as the terms set forth
herein and at least as onerous to the other operators as the terms set forth
herein. Iowa West agrees to provide a copy of such agreements to Harveys for
their review at least three (3) business days prior to execution. Harveys agrees
to review such agreements only with respect to compliance with this paragraph
and to consider all information contained therein as confidential. If, however,
the Commission determines that the Pottawattamie County area is able to support
only one excursion boat operator in addition to Bluffs Run Greyhound Park, Iowa
West agrees that Harveys will be the excursion boat operator Iowa West supports
and sponsors.
9. ASSIGNABILITY.
(a) Iowa West shall not have the right, power or authority
to assign all or any portion of this Agreement or its rights hereunder or to
delegate any duties or obligations arising under this Agreement voluntarily,
involuntarily or by operation of law, without Harveys prior written consent.
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(b) Harveys shall have the right, power and authority to
assign all or any portion of this Agreement or its rights hereunder or to
delegate any duties or obligations arising under this Agreement, voluntarily,
involuntarily, or by operation of law, and without Iowa West's consent subject
only to Commission or other governmental approval, if required.
(c) Notwithstanding anything herein to the contrary, both
parties hereto expressly acknowledge that Iowa West may form a single purpose
subsidiary in which to receive fees derived under this and other excursion boat
sponsorship agreements.
10. AMENDMENT.
This Agreement may be amended or modified at any time, but
only by a writing signed by both parties and, if required, approved
by the Iowa Racing and Gaming Commission.
11. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of
Iowa and the rules and regulations of the Commission, and each party shall be
responsible for its own compliance with all laws of the State of Iowa and the
rules of the Commission.
12. REPORTS, ACCOUNTING AND AUDITING.
(a) Iowa West and Harveys shall prepare and file all
reports, including financial reports, as required of each such party,
respectively by Iowa law and rules and regulations of the Commission. In
addition, each party shall keep such books and records and have audits performed
as required of them, respectively, by Iowa law and the Commission. Each party
shall be responsible for providing at its own expense all audit and accounting
services for any reports and audits required by the Commission.
(b) Each party agrees that the Commission and the other
party to this Agreement shall have the right to audit each parties records to
the extent necessary to provide verification of compliance under this Agreement.
In the event the Commission or either party determines that a party is not in
compliance with the terms of this Agreement, then in addition to all other
remedies provided for by law, each party shall have the right to specifically
enforce the terms and provisions of this Agreement.
13. DEFAULT.
The occurrence of any one or more of the following events
shall constitute a default by a party hereunder:
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(a) Failure of the party to perform or comply with any of
the duties and obligations imposed upon said party under the terms of this
Agreement.
(b) The suspension or revocation of the party's license
under Chapter 99F of the Iowa Code by the State of Iowa or the Commission.
(c) The party's adjudication as a bankrupt or as insolvent,
or the appointment of a receiver or an assignment for the benefit of the
creditors by or on behalf of either party.
(d) Liquidation or dissolution of the party, which
liquidation or dissolution is not caused by the other party.
If one of the foregoing acts of default occurs and is not remedied by the
defaulting party within thirty (30) days after the giving of written notice by
the non-defaulting party of said default, then the non-defaulting party shall
have all legal and equitable rights and remedies provided at law, including
termination of this Agreement, specific performance, or injunctive relief. The
remedies of the non-defaulting party shall be cumulative, and the exercise of
any one or more remedies provided at law shall not be construed as a waiver of
any other remedies. Further, no course of dealing between the parties or failure
on the part of a non-defaulting party to exercise any right or remedy shall
operate as a waiver of such right to claim a default in the future.
14. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been given if delivered in
person or if sent by certified mail postage prepaid, or by telecopy, or by
Federal Express (or other reputable overnight delivery service) to the other
party at the following addresses:
To Iowa West: Iowa West Racing Association
0000 00xx Xxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
with duplicate to: Xxxxx X. Xxxxxxxx
Xxxxxx Law Firm, P.C.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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To Harveys: Harveys Iowa Management Company,
Inc.
c/o Harveys Casino Resorts
Attention: Xxxxxxx X. Xxxxxxx,
President
X.X. Xxx 000
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
with duplicate to: Xxxxxxxxx & Xxxxxx, Ltd.
Attention: Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxx Xxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopy: 775-588-4970
or to such other address or such other Person as the addressee party shall have
last designated by notice to the other parties. All Notices shall be deemed to
have been given when received. All Notices given by telecopy shall be followed
by the delivery of a hard copy of such Notice, provided that such Notice shall
be deemed to have been given when received by telecopy.
(b) DISPUTE. In the event a dispute arises between the parties
hereto, the parties agree to utilize appropriate alternative dispute resolution
procedures, including but not limited to arbitration. The prevailing party shall
be entitled to recover its reasonable attorney's fees and court costs, if any,
incurred in connection with such dispute.
(c) RELATIONSHIP OF PARTIES. Nothing in this Agreement shall
be construed to create a partnership between the parties, a relationship of
employer and employee between the parties, or a relationship of principal and
agent between the parties.
(d) SUCCESSORS AND ASSIGNS. This Agreement and all of the
obligations, duties and rights of the parties hereunder shall inure to and be
binding upon the heirs, successors and assigns of the parties to the extent that
assignment is permitted under Paragraph 9 above.
(e) COMPLETE AGREEMENT. This Agreement embodies the entire
operating agreement between the parties and may be amended or supplemented only
by an instrument in writing executed by the parties against whom the enforcement
is sought. In addition to the acts and deeds recited in this agreement and
contemplated herein, the parties hereto shall execute any and all additional
agreements as may be necessary to consummate the transactions contemplated by
this agreement and to fulfill the intentions of this agreement.
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(f) WARRANTIES SURVIVE. All representations, warranties, and
indemnities set forth in this agreement shall survive the execution hereof.
(g) COUNTERPARTS. This agreement may be executed in a number
of identical counterparts, and if so executed, each such counterpart is deemed
an original for all purposes, and all such counterparts shall collectively
constitute one agreement.
(h) TIME IS OF THE ESSENCE. Time is of the essence of this
agreement and each and every provision contained herein.
(i) CONSTRUCTION. This Agreement shall be construed to comply
with all applicable Iowa laws, Commission rules and regulations relating to the
excursion boat gambling, and may be amended from time to time in order to comply
with such laws, Commission rules and regulations.
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TEXT CONTINUES ON PAGE 8]
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(j) HEADINGS. Paragraph headings herein are for reference
purposes only.
IN WITNESS WHEREOF, these parties do execute this Agreement as of the
date first above noted at Council Bluffs, Iowa.
IOWA WEST RACING ASSOCIATION
By: /s/ Xxxx X. Xxxxx
-------------------------------------
XXXX X. XXXXX, Vice-President
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
XXXXXX X. XXXXX ,Secretary
HARVEYS IOWA MANAGEMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
XXXXXXX X. XXXXXXX, President
By: /s/ Xxxx X. XxXxxxxxxx
-------------------------------------
XXXX X. XXXXXXXXXX, Secretary
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