EXHIBIT 10.39
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and
entered into as of the 11th day of December, 1997, by and between
Showboat Development Company, a Nevada corporation (the
"Seller"), and Futuresouth, Inc., a Missouri corporation (the
"Buyer").
RECITALS
A. Seller is the owner of 100 shares of common stock (the
"Shares"), $1.00 par value (the "Common Stock"), of Showboat
Xxxxx, Inc., a Nevada corporation (the "Company"). The Shares
represent one hundred percent (100%) of the total outstanding
Common Stock, equity and ownership of the Company.
B. Company is the general partner of Southboat Limited
Partnership (the "Partnership").
C. Buyer desires to acquire the Shares from Seller upon
the terms and conditions hereinafter set forth.
D. Seller desires to sell the Shares upon the terms and
conditions hereinafter set forth.
Now, Therefore, for and in consideration of the premise
and mutual covenants, agreements, understandings, undertakings,
representations, warranties and promises, and subject to the
conditions hereinafter set forth, and intending to be legally
bound thereby, the parties do hereby covenant and agree that the
Recitals set forth above are true and accurate, and further
covenant and agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 PURCHASE AND SALE
Subject to the provisions hereof, on the Closing Date (as
hereinafter defined), Seller shall sell, transfer, assign and
deliver the Shares to Buyer, and Buyer shall buy the Shares from
Seller.
1.2 CONSIDERATION
In consideration of the sale of the Shares to Buyer, Buyer
shall pay the sum of One Hundred Ten Dollars and 00/100th Dollars
($110.00) and other consideration provided herein.
1.3 REIMBURSEMENT OF EXPENSES
a. Seller represents and warrants that Seller has
incurred approximately $4.8 million in direct out-of-
pocket expenses in connection with development of the
Project, which expenses are described on SCHEDULE 1.3
attached hereto (the "Seller Development Costs").
SCHEDULE 1.3 is a complete listing of the Seller
Development Costs. Seller represents the Seller
Development Costs were incurred in (i) developing the
plans for the proposed riverboat casino complex, (ii)
obtaining financing commitments for the riverboat
casino complex, (iii) coordinating interactions with
and making applications and presentations to the
Missouri Gaming Commission for a gaming license, and
(iv) coordinating interactions with and making
applications and presentations to St. Louis County, for
selection and negotiation of a lease for riverboat
casino site. The Seller Development Costs do not
include Seller's soft costs for which no reimbursement
is contemplated. Seller agrees upon the request of the
Partnership to provide the Partnership with such
documentation of the Seller Development Costs as may be
requested.
b. Buyer has advised Seller that Buyer intends to
transfer the general partner interest held by the
Company in the Partnership to another gaming operator
(the "New Gaming Operator"). Buyer recognizes that the
work previously done on the Project and the Project
Documents by Seller and the incurrence of the Seller
Development costs in performing such work will have
considerable value to the Partnership and may save the
Partnership money in connection with completing the
Project. Within 60 days after Buyer brings a New
Gaming Operator into the Partnership, Buyer, Seller and
the New Gaming Operator shall meet and attempt to reach
agreement in good faith on the dollar amount of the
Seller Development Costs to be reimbursed to Seller in
light of Seller's efforts, time and energies in
securing, negotiating, developing and maintaining the
Project and the Project Documents, and that amount
(which may not exceed the Seller Development Costs)
shall be the amount to be reimbursed to Seller (this
amount is referred to as the "Adjusted Reimbursement
Costs").
c. In the event that the Seller and the Partnership can
not agree on the amount of the Adjusted Reimbursement
Costs, either the Seller or the Partnership may request
that the issue be submitted to binding arbitration, and
be referred to a panel of three neutral arbitrators for
final determination pursuant to the Commercial Rules of
the American Arbitration Association (the "AAA"). Such
arbitration will be administered by the AAA and held in
St. Louis, Missouri. Any such arbitration will be
initiated by a written request for arbitration
delivered by one party to the other and to the AAA.
The arbitrators will be attorneys with gaming
experience selected in accordance with the rules of the
AAA. The hearing will begin sixty (60) days after the
arbitrators are selected, and a final decision or award
will be made within thirty (30) days of the closing of
the hearing. The decision or award and the basis
therefor will be in writing and delivered to the
parties. The final decision will be binding on Seller
and the Partnership and enforceable in any court
-2-
of law having jurisdiction. Each party shall bear
its own costs incurred in connection with the
arbitration.
d. If the riverboat casino project (the "Project")
(the term Project as used in this Agreement includes
all aspects of the riverboat gaming project including
but not limited to the Lease of the site with the St.
Louis County Port Authority) contemplated by the
Southboat Limited Partnership Agreement is completed
and opens for gaming business, the Partnership shall,
if permitted by law and by the and the rules and
regulations of the Missouri Gaming Commission, pay to
Seller an amount equal to the Adjusted Reimbursement
Cost (without interest) payable only in the manner set
forth in this paragraph. The Partnership shall pay
five percent (5%) of its net earnings as computed in
accordance with generally accepted accounting
principles before taking into account depreciation and
amortization (on intangible assets). Moreover, Buyer
shall have been fully reimbursed for the $500,000 in
development costs that Buyer has invested in the
Project before any Adjusted Reimbursement Costs are
paid to Seller. Partnership payments pursuant to this
paragraph shall be made annually within 120 days after
the close of its fiscal year.
e. The Adjusted Reimbursement Costs are payable only
to the extent that all terms and conditions in this
Section 1.3 are satisfied, otherwise the Seller is
irrevocably waiving any right to recover the Seller
Development Costs and the Adjusted Reimbursement Costs.
For example, without limiting the preceding sentence,
Seller forfeits all right to recover the Seller
Development Costs and the Adjusted Reimbursement Costs
if the Project does not open for business, or if the
Partnership is not legally permitted to make said
payments. Seller also acknowledges that it is
irrevocably waiving any right to recover that amount by
which the Seller Development Costs exceed the Adjusted
Reimbursement Costs.
f. Seller represents and warrants that it is the sole
owner of the Seller Development Costs and that no other
person has any rights to recover the Seller Development
Costs from Buyer or the Partnership. Seller agrees to
indemnify and hold Buyer and the Partnership harmless
with respect to any claims made against them for
recovery of any of the Seller Development Costs,
excluding the Partnership's obligations to Seller under
this Section 1.3.
ARTICLE II
CLOSING
2.1 CLOSING DATE
The closing (the "Closing") under this Agreement
for the purchase and sale of the Shares shall be
at the offices of the Company, unless otherwise
agreed to in writing by each of the parties
-3-
hereto, on December 12, 1997 (the "Closing Date"). The Closing
shall take place at 10:00 a.m. Pacific Standard Time on the
Closing Date.
2.2 SELLER'S CLOSING DOCUMENTS
At the Closing, Seller shall deliver to Buyer the following
documents:
a. the certificate representing all of the Shares duly
endorsed in blank;
b. a certified resolution of the Company removing all
officers and directors appointed by the Company and
replacing said officers and directors with officers and
directors identified by Buyer as of the Closing; and
c. an executed amendment to the articles of
incorporation of the Company changing the name of the
Company to Southboat Xxxxx, Inc.; and
d. the Project Documents (as defined in section 7.1).
2.3 PURCHASER'S CLOSING DOCUMENTS
a. At the Closing, Buyer shall deliver to Seller the
amount of One Hundred Ten Dollars and 00/100th Dollars
($110.00).
b. At the Closing, Buyer shall cause to be delivered
to Seller a faxed copy of a letter signed by the St.
Louis County Port Authority addressed to the Bank of
New York in the form attached hereto directing the
release from escrow of Seller's Security Deposit and
Guarantees (with original to be delivered by overnight
delivery to Seller's counsel).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and
warranties to Buyer, and Seller warrants that the following are
true and accurate on the date hereof and will be true and
accurate at all times thereafter through the Closing Date.
3.1 TITLE TO SHARES
Seller is the record and beneficial owner of the Shares,
free and clear of all liens, encumbrances, security agreements,
options, charges, restrictions or any other claims of any type,
kind or nature whatsoever. The Shares are fully paid and
nonassessable and have been duly and validly issued by Company,
and were not issued in violation of any preemptive rights.
-4-
3.2 AUTHORITY
Seller has the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement, including the sale and delivery of the Shares to
Buyer.
3.3 BINDING NATURE OF AGREEMENT
This Agreement constitutes the valid and binding obligation
of Seller, enforceable against Seller in accordance with its
terms.
3.4 NO VIOLATION
Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof by Seller will conflict with, or
result in a breach of or default under, any of the terms or
provisions of (i) any agreement, note, indenture, mortgage, deed
of trust, instrument lease or franchise to which Seller is a
party or by which it or any of its assets or properties are
bound; or (ii) any law, judgment, order, arbitration award, rule,
regulation, ordinance, writ, injunction or decree of any
governmental agency or instrumentality or court applicable to or
having jurisdiction over Seller or any of its assets or
properties.
3.5 NO COMPANY LIABILITIES
The Company has no liabilities as of the date hereof other
than the Box Suite Lease and Ticket Option Agreement between the
Rams Football Company, Inc. and the Company, and Seller
represents that all amounts then due under said agreements
through the Closing Date have been paid. For purposes of this
Agreement the term "liabilities" shall include without limitation
any direct or indirect liability or obligation, indebtedness,
guaranty, endorsement, claim, loss, damage, deficiency, cost,
expense, obligation or responsibility, either accrued, absolute,
contingent, mature, not mature or otherwise.
3.6 NO COMMISSION OR FINDER'S FEE
Seller has not dealt with any broker or finder in
connection with the Project (which term includes the Lease) or
any of the transactions contemplated by this Agreement other
than a consulting agreement with Xxxxxxx X. Xxxxxxxx (a copy of
which was provided to Buyer on December 8, 1997), and no broker
or other person is entitled to any commission or finder's fee in
connection with such transactions or the Project. Seller is
solely responsible for paying all amounts owed to Xxxxxxx X.
Xxxxxxxx pursuant to his Consulting Agreement with Seller dated
August 15, 1997, or otherwise, and Seller agrees to indemnify and
hold Buyer and the Partnership harmless with respect to all
amounts owed to Xxxxxxx X. Xxxxxxxx.
3.7 NO REPRESENTATIONS UNTRUE
No representation made by Seller in this Agreement contain
or will contain any untrue statement of material fact or omit to
state any material fact known to Seller necessary to make any
-5-
statement, warranty or representations not misleading to Buyer.
Seller knows of no material facts or conditions adversely
affecting the value of the Shares, which have not been disclosed
to Buyer. Except as set forth in this Agreement, Seller does not
make any representations or warranties to Buyer.
3.8 NO FUTURE INTERESTS
Seller hereby represents and warrants that it has conducted
all necessary due diligence with respect to the subject matter of
this Agreement, including its own investigation of the future
prospects of the Project and hereby represents and warrants that
it is freely and voluntarily entering into the transactions
described in this Agreement based solely on its own due
diligence. Seller acknowledges that it is not relying on any
representations by Buyer in entering into this transaction, and
that it has no basis to rescind this transaction or seek other
relief against the Buyer or the Partnership in the event that the
Partnership is able to obtain a gaming license (except for any
payments made pursuant to Section 1.3. Seller represents and
warrants that it fully understands that it is permanently
terminating all interest it has in the Project, the Project
Documents and the Partnership and that it will have no interest
of any kind in the Project, the Project Documents or the
Partnership and no right to payments of any kind (except for any
payments made pursuant to Section 1.3) in the event that the
Partnership is able to obtain a gaming license and open the
Project for a gaming business. Without limiting the foregoing,
Seller acknowledges that it has no rights in the gaming
application fee paid to the Missouri Gaming Commission and that
all rights in said fees now belong to the Partnership.
3.9 ALL COMPANY AND PARTNERSHIP AGREEMENTS DISCLOSED
Attached hereto as SCHEDULE 3.9 is a list of all agreements
under which either the Company or the Partnership has any future
obligations. A copy of all agreements listed on SCHEDULE 3.9 is
attached to said Schedule. Seller represents that the agreements
listed on SCHEDULE 3.9 and attached hereto are true and complete
copies of the agreements that are binding on Company and/or the
Partnership, and that there are no amendments, side agreements or
other undisclosed agreements that would change the terms of any
of the attached agreements, and that there are no defaults under
said agreements. Seller further warrants that Company and the
Partnership have paid all amounts due under the agreements listed
on SCHEDULE 3.9 through the Closing Date.
3.10 ALL LIABILITIES DISCLOSED
The Partnership has no liabilities (as defined in section
3.5), except for those disclosed on SCHEDULE 3.10 attached
hereto. Without limiting the foregoing, the Seller represents
that neither the Partnership, nor the Company has any obligation
to make any payments, grant any equity interests in the Project
or pay any other consideration to any person in the event that
the Partnership is able to open a gaming business.
-6-
3.11 PROPERTY
Attached hereto as SCHEDULE 3.11 is a list of all property
owned or leased by the Company or by the Partnership (the
"Property"). Seller warrants that the Company or the Partnership
holds good title to all of the Property free and clear of all
liens, claims and encumbrances. Seller shall cooperate in taking
any actions necessary to vest title and control of the Property
in Buyer, such as changing signature cards on bank accounts.
3.12 TAX RETURNS
The Company and the Partnership have filed all tax returns
that were due prior to the Closing Date and have paid all taxes
that are owed by the Company or the Partnership for all periods
prior to the Closing Date. There is no pending audit concerning
any Company or Partnership tax returns. The representations in
this section apply to all taxes applicable to the Company and the
Partnership, including without limitation all federal, state
(Nevada and Missouri) and local income, franchise, property and
gaming taxes.
3.13 OWNERSHIP OF COMPANY
The 100 Shares being transferred to Buyer constitute all
outstanding stock that has been issued by Company. Company has
no other outstanding stock and has no obligation, contingent or
otherwise, to issue any stock to any person. Without limiting
the foregoing, Company warrants that it has not issued any
warrants or stock options.
3.14 OWNERSHIP OF PARTNERSHIP
Company owns an 80% interest in the Partnership ("Company's
80% Partnership Interest"), and Buyer by acquiring ownership of
Company will be acquiring ownership of 100% of the Partnership.
Company's 80% Partnership Interest is free and clear of all
liens, encumbrances, security agreements, options, charges,
restrictions or any other claims of any type, kind or nature
whatsoever. Company's 80% Partnership Interest and Buyer's 20%
interest in the Partnership constitute the entire equity interest
in the Partnership, and the Partnership has no obligation,
contingent or otherwise, to issue any equity interest to any
person.
3.15 COMPANY
Company is duly organized under the laws of the State of
Nevada, is qualified to do business in the State of Missouri, and
is in good standing in the States of Nevada and Missouri.
3.16 COMPLIANCE WITH LAW
Seller represents and warrants that Seller, Company and the
Partnership have not violated any laws or governmental
regulations in connection with their activities to establish a
gaming business in Missouri.
-7-
3.17 DISCLOSURE UNDER PARTNERSHIP AGREEMENT
Except as disclosed on Schedule 3.17 Seller has no
involvement in any gaming projects in the State of Missouri or in
East St. Louis, Illinois other than the Project.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to
Seller, and Buyer hereby warrants that the following are true and
accurate on the date hereof and will be true and accurate at all
times thereafter through the Closing Date.
4.1 AUTHORITY
Buyer has the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement.
4.2 BINDING NATURE OF AGREEMENT
This Agreement constitutes the valid and binding obligations
of Buyer, enforceable against Buyer in accordance with its terms.
4.3 DIFFERENCE IN FACTS
Buyer hereby represents and warrants that it has conducted
all necessary due diligence with respect to the subject matter of
this Agreement and hereby represents and warrants that it accepts
the Company "as is" and accepts that any and all liabilities
and/or obligations of the Company for any and all acts committed
prior to the purchase of the Shares contemplated by this
Agreement, except that nothing herein shall be deemed to release
Seller from any liability that it has for its obligations,
representations and warranties in this Agreement.
4.4 NO VIOLATION
Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof by Buyer will conflict with, or
result in a breach of or default under, any of the terms or
provisions of: (i) any agreement, note, indenture, mortgage,
deed of trust, instrument, lease or franchise to which Buyer is a
party or by which it or any of its assets or properties are
bound; or (ii) any law, judgment, order, arbitration award, rule,
regulation, ordinance, writ, injunction or decree of any
governmental agency or instrumentality or court applicable to or
having jurisdiction over Buyer or any of its assets or
properties.
4.5 NO RELIANCE
Buyer acknowledges that Seller has not made and does not
make any representations or warranties concerning the past or
future performance of the Company, except for any
-8-
representations set forth in this Agreement. In making its
investment decision, Buyer has relied upon its own examination of
the Company, including the merits and risks involved. Buyer has
consulted its own attorney, business advisor or tax advisor as to
legal, business or tax advice. Buyer possesses sufficient
business probity and sophistication to assess the risks of
purchasing the Shares or has consulted with persons of its own
choosing who possess such probity and sophistication to advise
Buyer of the risks attendant to the investment called for under
this Agreement.
4.6 INVESTMENT INTENT
Buyer is acquiring the Shares for its own account, for
investment and not with a view to the resale or distribution
thereof, and Buyer understands the nature and effect of this
representation.
4.7 NO COMMISSION OR FINDER'S FEE
Buyer has not dealt with any broker or finder in connection
with any of the transactions contemplated by this Agreement, and
to the best of its knowledge, no broker or other person is
entitled to any commission or finder's fee in connection with
such transactions.
4.8 NO REPRESENTATIONS UNTRUE
No representation made by Buyer in this Agreement contains
or will contain any untrue statement of material fact or omit to
state any material fact known to Buyer necessary to make any
statement, warranty or representation not misleading to Seller.
Except as set forth in this Agreement, Buyer does not make any
representations or warranties to Seller.
ARTICLE V
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
5.1 SATISFACTION OF CONDITIONS PRECEDENT
The obligation of Seller to sell and transfer the Shares
under this Agreement is subject to the satisfaction, on or before
the Closing Date, of all the conditions set forth in this Article
V. Seller may waive any or all of these conditions in whole or
in part without prior notice; provided, however, that no such
waiver of a condition shall constitute a waiver by Seller of any
of its other rights or remedies, at law or in equity, if Buyer
should be in default of any of its representations, warranties,
or covenants under this Agreement.
5.2 RETURN OF SECURITY DEPOSIT
Seller shall have received a faxed copy of a letter in the
form attached to this Agreement signed by the St. Louis County
Port Authority irrevocably instructing the Bank of New York to
deliver the $750,000 security deposit plus interest earned
thereon deposited in the St. Louis County Port
Authority/Southboat Limited Partnership escrow account at the
Bank of New York, Account Number 484299 thereon to
Seller. Buyer, the Company and the Partnership hereby
-9-
waive any and all claims they may have to share in said security
deposit and interest earned thereon. Seller represents and
warrants to Buyer, the Partnership and the St. Louis County Port
Authority that all sums owing to the Bank of New York and to any
predecessor escrow agent under the Escrow Agreement dated October
13, 1995 by and between the St. Louis County Port Authority, the
Partnership and Boatmen's Trust Company at any time through
termination of the Escrow Agreement have been paid in full, and
Seller agrees it is solely responsible for paying all amounts, if
any, still owing to the Escrow Agent under said Escrow Agreement.
5.3 RELEASE OF GUARANTEES
Seller shall have received a faxed copy of a letter in the
form attached to this Agreement signed by the St. Louis County
Port Authority irrevocably instructing the Bank of New York to
deliver to Seller the Guarantee of Minimum Rent and the
Completion Guarantee, each dated as of October 13, 1995.
ARTICLE VI
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
6.1 SATISFACTION OF CONDITIONS PRECEDENT
The obligation of Buyer to purchase the Shares under this
Agreement is subject to the satisfaction, on or before the
Closing Date, of all the conditions set forth in this Article VI.
Buyer may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Buyer of any of its
other rights or remedies, at law or in equity, if Seller should
be in default of any of its representations, warranties, or
covenants under this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES
All representations and warranties by Seller in this
Agreement shall be true and correct as of the Closing Date and
Seller shall have performed all of its obligations under this
Agreement which are to be performed on or before Closing.
6.3 ACCEPTANCE OF FUTURESOUTH
The St. Louis County Port Authority shall have provided
Seller with its written consent and acceptance of Buyer as the
controlling shareholder of Company, subject to such terms and
conditions as are acceptable to Buyer.
-10-
ARTICLE VII
ADDITIONAL COVENANTS BY SELLER
7.1 DELIVERY OF PROJECT DOCUMENTS
(a) Seller shall deliver to Buyer at or prior to Closing
all books, records and other documents in the possession of or
under the control of Seller, the Company, the Partnership, or any
of their affiliates, that relate to the Project or the business
of the Company or the Partnership, including, but not limited to,
all engineering studies, architectural and engineering drawings
and plans, elevations, site studies, Coast Guard permit
applications, if any, the Partnership's Missouri Gaming
Commission application, title insurance commitments, surveys,
environmental reports, market studies, information, presentations
and other material used for any attempts to sell the Project or
any part thereof, agreements, the Company's corporate minute
books, the Company's and the Partnership's tax returns and all
correspondence (collectively, the "Project Documents"). To the
extent not delivered at Closing, Seller has a continuing
obligation after Closing to supply such Project Documents to
Buyer. Seller forfeits its right to receive the Adjusted
Reimbursement Costs if Buyer has not received substantially all
of the Project Documents within 30 days after the Closing Date.
Seller is assigning all of its right, title and interest in the
Project Documents to Buyer. Seller does not represent or warrant
the completeness, accuracy of the contents or usefulness of any
of the Project Documents. Buyer either possesses sufficient
business probity and sophistication to assess the risks of
relying on the Project Documents or has consulted with persons of
its own choosing who possess such probity and sophistication to
advise Buyer of the risks attendant to the reliance on the
Project Documents. Seller agrees to make available at Buyer's
expense employees of Seller who have knowledge of the Project
Documents upon the written request of Buyer and upon the mutual
agreement of Seller and Buyer.
(b) Seller further represents that Buyer has not pledged,
mortgaged, hypothecated or transferred the Project Documents and
there are no payments due to anyone if the Project Documents are
used by Buyer. Seller hereby irrevocably consents to Buyer
having access to and use of all Project Documents, and Seller
shall if requested by Buyer, at Buyer's expense, provide any
consents that may be reasonable required by third parties in
order for Buyer to use and have access to the Project Documents.
Without limiting the preceding sentence, Seller hereby authorizes
the Missouri Gaming Commission to disclose the Partnership's
gaming application and all materials related thereto (other than
the personal disclosure gaming applications filed by officers,
directors and key employees of Showboat, Inc. and any of its
subsidiaries.
7.2 COOPERATION
Seller agrees to cooperate with Buyer after Closing in
providing, at Buyer's expense such documents as may be reasonably
required to effectuate the transactions described in this
Agreement, including but not limited to providing any additional
consents, amendments to the gaming applications, assignments or
other documents as may be required by any third party, including
but not limited to any documents required by the Missouri Gaming
Commission, St. Louis County or the Coast Guard.
-11-
7.3 NO EMPLOYEES
Seller warrants that the Company and the Partnership do not
have and have not had any employees at any time prior to the
Closing Date, and as of closing all of Seller's directors and
officers shall have resigned their offices with the Company and
the Partnership.
7.4 CONFIDENTIALITY
(a) Seller and Buyer agree to keep the terms of this
Agreement confidential following the Closing, provided that
nothing herein shall prevent Seller or Buyer from making such
disclosures as are required by government agencies or by court
order, and Buyer may disclose this Agreement to third parties
that are involved in the Project to the extent Buyer determines
such disclosure is appropriate. In the event that either Seller
or Buyer reasonably believes that public disclosure of this
Agreement is appropriate Seller and Buyer shall prepare a
mutually agreeable press releases.
(b) Seller agrees to keep the Project Documents
confidential following the Closing, provided that nothing herein
shall prevent Seller from making such disclosures as are required
by government agencies or by court order.
(c) Buyer agrees to keep the Partnership's gaming
application confidential to the extent that the application
contains personal information regarding officers and directors of
Showboat, Inc. and any of its subsidiaries, provided that nothing
herein shall prevent Buyer from making such disclosures as are
required by government agencies or by court order.
7.5 PRESERVATION OF LEASE AND GAMING APPLICATION
Seller agrees to not do anything that would cause a
termination of the Lease and Development Agreement between
Partnership and the St. Louis County Port Authority (the "Lease")
prior to Closing, and agrees to execute at Closing any documents
required to retract the termination notice it had given with
respect to the Lease. Seller also agrees not to withdraw the
Partnership's application to the Missouri Gaming Commission for a
class A owner's and class B operator's license or do anything
else that would adversely affect that license application, except
that Seller may notify the Missouri Gaming Commission of its
withdrawal from the Project and may withdraw its application for
an operator's license. In accordance with Missouri gaming rules
and regulations, Buyer shall cause the Partnership to amend said
application with the Missouri Gaming Commission to reflect the
change in ownership contemplated under this Agreement. Seller
shall coordinate any notifications it makes to the Missouri
Gaming Commission, St. Louis County and the Coast Guard with
Buyer. Following Closing Seller agrees not to do anything that
adversely affects the Partnership's gaming application, except
that it is recognized that Seller is permitted to withdraw from
the Project and that Seller may respond to questions by any
gaming authority regulating its or any of its affiliates
regarding the Project and Seller's sale of the Shares to Buyer.
-12-
ARTICLE VIII
COSTS
Buyer and Seller shall each bear their own costs and
expenses incurred or to be incurred in negotiating and preparing
this Agreement and in taking whatever actions that may be
necessary or appropriate to consummate the transactions
contemplated by this Agreement, including the costs of obtaining
any consents or approvals.
ARTICLE IX
RELEASE AND INDEMNITY BY BUYER
9.1 RELEASE BY BUYER
Buyer, for itself and its successors and assigns, releases
and forever discharges Seller, including the officers, directors,
employees and agents of the Seller, or any affiliated companies
of the Seller, of and from any and all manner of action and
causes of action, suits, debts, dues, accounts, contracts,
agreements, judgments, claims and demands whatsoever, whether in
law or in equity, whether known or unknown, anticipated or
unanticipated, disclosed or undisclosed, which now exist or may
hereafter arise from any matter, fact, circumstance, happening,
or thing whatsoever occurring or failing to occur from the
beginning of the world to the date of this Agreement. Buyer does
not release any claims that may arise under this Agreement.
9.2 INDEMNIFICATION BY BUYER
Buyer shall defend, indemnify, and hold completely free and
harmless the Seller, including the officers, directors, employees
and agents of the Seller, or any affiliated companies of the
Seller, from any and all actions and causes of action, suits,
debts, dues, accounts, contracts, agreements, judgments, claims,
and demands (including attorneys' fees and costs) related to the
Company, Southboat Limited Partnership Agreement or the Lease,
except that Buyer is not obligated to indemnify Seller for any
matters that were not disclosed to Buyer or for any matters that
violate Seller's representations, warranties and covenants under
this Agreement.
ARTICLE X
RELEASE AND INDEMNITY BY SELLER
10.1 RELEASE BY SELLER OF BUYER
Seller, for itself and its successors and assigns, releases
and forever discharges Buyer, Company, the Partnership, including
the affiliates, officers, directors, employees and agents of the
foregoing (collectively referred to as the "Buyer Released
Parties"), of and from any and all manner of action and causes of
action, suits, debts, dues, accounts, contracts, agreements,
judgments, claims and demands whatsoever, whether in law or in
equity, whether known or unknown, anticipated or unanticipated,
disclosed or undisclosed, which now exist or may
-13-
hereafter arise from any matter, fact, circumstance, happening,
or thing whatsoever occurring or failing to occur from the
beginning of the world to the date of this Agreement. Seller
does not release any claims that may arise under this Agreement.
10.2 INDEMNIFICATION BY SELLER
Seller shall defend, indemnify, and hold completely free
and harmless the Buyer, including the officers, directors,
employees and agents of the Buyer, or any affiliated companies
of the Buyer, from any and all loss, liability and expense
(including attorneys' fees and costs) related to any default by
Seller in its obligations under this Agreement, including any
loss, liability and expense incurred by Buyer as a result of
any of Seller's representations and warranties in this
Agreement not being correct.
ARTICLE XI
GENERAL PROVISIONS
11.1 CAPTIONS
The subject headings or captions of the selections and
subsection of this Agreement are included only for the purposes
of the convenience and shall not affect the construction or
interpretation of any provisions contained herein.
11.2 ENTIRE AGREEMENT
This Agreement (together with all exhibits, documents,
agreements and instruments executed or furnished in connection
herewith) constitutes the entire agreement between the parties
pertaining to the subject matter hereof, and supersedes any and
all prior or contemporaneous written or oral negotiations,
agreements, representations, and understandings of the parties
with respect to such subject matter.
11.3 EXPENSES
If any legal action or any arbitration or other proceeding
is brought is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default, or
misrepresentations in connection with any the provisions of this
Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other
relief to which it may be entitled.
11.4 NOTICE
Any and all notices required under this Agreement shall be
in writing and shall be either: (i) hand-delivered; (ii) mailed,
first-class postage prepaid, certified mail, return receipt
requested; or (iii) delivered via a nationally recognized
overnight courier service, addressed to:
-14-
Seller: Showboat Development Company
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
H. Xxxxxxx Xxxxx, President and Chief
Executive Officer
Copy to: Xxxx X. Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Buyer: Futuresouth, Inc.
00000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxx Xxxx, President and Chief
Executive Officer
Copy to: Xxxxxxxxx X. Xxxxxx
Riezman & Blitz, P.C.
7700 Bonhomme, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
All notices hand-delivered or delivered via overnight
courier shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of
three (3) business days after the date postmarked. Any changes
in any of the addresses listed herein shall be made by notice as
provided in this Section 11.4.
11.5 MODIFICATION, AMENDMENT OR WAIVER
This Agreement may not be amended, supplemented or
otherwise modified, and none of its terms may be waived,
unless such amendment, supplement, modification or waiver is in
an express writing and executed by the party or parties to be
bound thereby. The failure of any party at any time or
times to require performance of any provision hereof shall not
affect the right of such party at a later time to enforce the
same, and no waiver of any term or provision hereof on any one
occasion shall be deemed to be a waiver of the same or any other
provision hereof at any subsequent time or times.
11.6 BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors,
predecessors, parents, affiliates, subsidiaries, divisions,
officers, directors, shareholders, employees, advisors,
consultants, insurers, attorneys, heirs, executors,
administrators and any persons claiming rights by, through or
under them; provided, however, that no assignment of any rights
or delegation of any obligations provided for herein may be made
by either party to this Agreement without the prior written
consent of the other party.
-15-
11.7 CONSTRUCTION
This Agreement shall be construed in accordance with its
intent and without regard to any presumption or any other rule
requiring construction against the party causing the same to be
drafted.
11.8 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada in effect on the
date of this Agreement without resort to any conflict of laws
principles.
11.9 COUNTERPARTS
This Agreement may be executed at different times and in
multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
11.10 NO THIRD PARTIES BENEFITTED
This Agreement is made and entered into for the sole
protection and benefit of Buyer and Seller, their successors and
assigns, and no other person or persons shall have any right of
action hereon.
11.11 SEVERABILITY
If any provision of this Agreement, or any portion of any
provision, shall be deemed invalid or unenforceable for any
reason whatsoever, such invalidity or unenforceability shall not
affect the enforceability and validity of the remaining
provisions hereof.
11.12 TIME OF THE ESSENCE
At all times stated herein, time shall be of the essence.
11.13 GENDER
Each party to this Agreement agrees that masculine or
feminine pronouns shall be substituted for the neuter form and
vice versa and the plural shall be substituted for the singular
form and vice versa in any place or places herein which the
context requires such substitution or substitutions.
11.14 NEUTRAL INTERPRETATION
The provisions contained herein shall not be construed in
favor of or against any party because that party or its counsel
drafted this Agreement, but shall be construed as if all parties
prepared this Agreement, and any rules of construction to the
contrary are hereby specifically waived. The terms of this
Agreement were negotiated at arm's length by the parties hereto.
-16-
11.15 SURVIVAL
All representations, warranties and covenants in this
Agreement shall survive closing.
11.16 COUNTERPARTS
This Agreement may be executed in counterparts. The
parties may sign this Agreement and fax a signed copy to the
other party. Any party receiving a copy bearing a facsimile
signature may rely on such facsimile signature and the facsimile
copy is binding on the party that signed it.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
In Witness Whereof, the parties hereto have duly executed
this Agreement on the date first set forth above.
SELLER BUYER
SHOWBOAT DEVELOPMENT COMPANY, FUTURESOUTH, INC., a Missouri
a Nevada corporation corporation
By: /s/ By: /s/
H. Xxxxxxx Xxxxx Xxxxxx Xxxx
President and Chief President and Chief
Executive Officer Executive Officer
-17-
EXHIBIT 1.3
SCHEDULE OF SELLER'S REIMBURSEMENT COSTS
-18-
SCHEDULE 3.9
SCHEDULE OF AND COPIES OF ALL AGREEMENTS UNDER WHICH
PARTNERSHIP OR COMPANY HAS OBLIGATIONS
1. Release of All Claims and Indemnification Agreement among
Showboat Xxxxx, Inc., Showboat, Inc., Showboat Development
company and Futuresouth, Inc. dated May 1, 1995.
2. Release of all Claims and Indemnification Agreement among
Futuresouth, Inc., Showboat Xxxxx, Inc., Showboat, Inc. and
Showboat Development Company dated May 2, 1995.
3. Management Agreement by and between Southboat Partnership and
Showboat Operating Company dated as of May 2, 1995.*
4. Administrative Services Agreement by and between Showboat
Operating Company and Southboat Partnership dated as of May 2,
1995.*
5. Trademark License Agreement by and between Showboat, Inc. and
Southboat Partnership dated as of May 2, 1995.*
6. Agreement of Limited Partnership of Southboat Limited
Partnership dated May 1, 1995
7. Letter Agreement between Showboat Xxxxx, Inc., Futuresouth,
Inc. and Southboat Limited Partnership dated as of September
20, 1995.
8. Lease and Development Agreement dated as of October 13, 1995,
First Amendment to Lease and Development Agreement dated as of
May 1996, and Second Amendment to Lease and Development
Agreement dated as of December 12, 1996.
9. Box Suite Lease and Ticket Option Agreement between the Rams
Football Company, Inc. and Showboat Xxxxx, Inc.
*Agreements by their terms terminate once Showboat no longer
maintains an equity interest in the Southboat Limited
Partnership.
-19-
SCHEDULE 3.10
SCHEDULE OF ALL PARTNERSHIP LIABILITIES
All liabilites due and owing as of the Closing Date have
been paid.
-20-
SCHEDULE 3.11
SCHEDULE OF ALL PARTNERSHIP AND COMPANY PROPERTY
Showboat Xxxxx, Inc. has no property other than $100 in a
bank account.
Southboat Limited Partnership has no property other than
the property leased pursuant to the Lease and Development
Agreement dated October, 13, 1995.
-21-
SCHEDULE 3.17
DISCLOSURE OF ALL OTHER GAMING PROJECTS SELLER IS INVOLVED IN
LOCATED IN MISSOURI OR EAST ST. LOUIS, ILLINOIS
None.
-22-
