EXHIBIT 10.32
AMENDED EQUITY CONVERSION AGREEMENT
This Agreement is made as of July 18, 1994, by and between Boomtown, Inc.,
a Delaware corporation ("Boomtown"), and Xxxx X. Xxxxxxxx ("Xxxxxxxx").
R E C I T A L S
A. Pursuant to an Agreement to Lease dated as of April 12, 1993 (the
"Agreement to Lease") as amended on September 16, 1993, Boomtown and Xxxxxxx
Xxxxxxxx entered into an agreement providing for the lease of certain property
located in Biloxi, Mississippi pursuant to a lease (the "Lease") in the form
attached to the Agreement to Lease as Exhibit II, and the development and
operation of gaming facilities on a gaming vessel, dockside or otherwise.
B. Pursuant to an Agreement of Limited Partnership of Mississippi-I
Gaming, L.P., a Mississippi Limited Partnership in the form attached as Exhibit
3.2 to the Agreement to Lease, Boomtown established a partnership (the
"Partnership") to develop and operate the gaming facilities referred to above.
C. Pursuant to a Partnership Admission Agreement dated as of July 18,
1994, Xxxxxxxx is being admitted as a limited partner of the Partnership.
Concurrently with the execution and delivery of this Agreement, Boomtown,
Xxxxxxxx and Bayview Yacht Club, Inc. are executing and delivering an Amended
and Restated Agreement of Limited Partnership regarding the Partnership (as
amended, the "Partnership Agreement").
D. The parties hereto desire pursuant to this Agreement to set forth the
terms and conditions pursuant to which the entire interest in the Partnership of
Xxxxxxxx shall be sold to Boomtown.
SECTION 1
Sale of Partnership Interest
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1.1 Sale. Subject to the terms and conditions hereof, at the Closing (as
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defined in Section 2.1 hereof), Xxxxxxxx and any of Xxxxxxxx'x Authorized
Transferees (as defined in Section 6 of the Partnership Agreement) who own an
interest in the Partnership (Xxxxxxxx and any Authorized Transferee who owns an
interest in the Partnership are collectively referred to herein as the "Xxxxxxxx
Parties") shall sell to Boomtown and Boomtown shall purchase from the Xxxxxxxx
Parties the entire interest in the Partnership owned by the Xxxxxxxx Parties
(such entire interest is hereinafter referred to as the "Partnership Interest"),
for the consideration described in Section 2.2 hereof.
SECTION 2
Closing; Delivery
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2.1 Closing. The closing of the purchase and sale of the Partnership
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Interest hereunder (the "Closing") shall be held at the offices of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, or at
such other place as the parties may agree, on a date (the "Closing Date") not
later than thirty (30) days following the date of the Valuation Certificate
described in Section 7.3(c) hereof and at a time as may be agreed among Boomtown
and the Xxxxxxxx Parties.
2.2 Delivery. At the Closing, Boomtown shall deliver to the Xxxxxxxx
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Parties (i) stock certificates in the names of the Xxxxxxxx Parties representing
shares of Common Stock of Boomtown ("Boomtown Common Stock") having an aggregate
value equal to the Aggregate Value of the Partnership Interest (as determined
pursuant to Section 7.3 hereof), or (ii) cash in an aggregate amount equal to
the Aggregate Value of the Partnership Interest, or (iii) a combination of cash
and Boomtown Common Stock having an aggregate value equal to the Aggregate Value
of the Partnership Interest, as elected by the Xxxxxxxx Parties pursuant to
Section 7.2 hereof, subject to the provisions of Section 7.7 hereof.
2.3 Legends on Certificates. The Xxxxxxxx Parties agree that any stock
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certificates representing shares of Boomtown Common Stock delivered pursuant to
Section 2.2 hereof and any securities delivered in respect of such Boomtown
Common Stock upon any stock split, stock dividend, recapitalization or similar
event, shall be stamped or imprinted with legends in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER, INCLUDING SALE, PLEDGE OR OTHER HYPOTHECATION AND RIGHTS OF FIRST
REFUSAL AS SET FORTH IN AN AGREEMENT DATED AS OF JULY 18, 1994. A COPY OF
SUCH PROVISIONS ARE AVAILABLE FROM THE SECRETARY OF THE COMPANY AT THE
COMPANY'S PRINCIPAL OFFICES.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL FOR THE HOLDER SATISFACTORY TO THE
COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
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SECTION 3
Representations and Warranties of Boomtown
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Boomtown hereby represents and warrants to Xxxxxxxx as follows:
3.1 Corporate Power. Boomtown has all requisite corporate power to
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execute and deliver this Agreement, to sell and issue the Boomtown Common Stock
hereunder and to carry out and perform its obligations under the terms of this
Agreement, subject to any required approval of the transactions contemplated
hereby by Boomtown's stockholders which, if required, will be obtained prior to
the Closing Date.
3.2 Authorization. All corporate action on the part of Boomtown and its
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directors necessary for the authorization, execution, delivery and performance
of this Agreement by Boomtown and the performance of Boomtown's obligations
hereunder has been taken, provided that the approval of the transactions
contemplated hereby by Boomtown's stockholders, if required, will be obtained
prior to the Closing Date. This Agreement, when executed and delivered by
Boomtown shall constitute a valid and binding obligation of Boomtown,
enforceable in accordance with its terms, subject to any required approval of
Boomtown's stockholders. The Boomtown Common Stock which may be delivered
pursuant to Section 2.2 hereof, when issued in compliance with the provisions of
this Agreement at the Closing Date, will be validly issued, fully paid and
nonassessable and will be free of any liens or encumbrances. At the Closing
Date the Boomtown Common Stock which may be delivered pursuant to Section 2.2
hereof will not be subject to any preemptive rights or rights of first refusal.
3.3 No Conflict. The execution and delivery of this Agreement do not, and
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the consummation of the transactions contemplated hereby will not, conflict with
or violate or result in a default under the provisions of any contract or other
agreement to which Boomtown is a party or result in any violation of any
provision of the Certificate of Incorporation or Bylaws of Boomtown or any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Boomtown.
3.4 Governmental Consents, Etc. No consent, approval or authorization of
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or designation, declaration or filing with any governmental authority on the
part of Boomtown is required in connection with the valid execution and delivery
of this Agreement by Boomtown or the consummation by Boomtown of the
transactions contemplated hereby, other than (i) such licenses and approvals as
may be referenced in the Agreement to Lease and the agreements delivered in
connection therewith, (ii) in the event Boomtown Common Stock is delivered
pursuant to Section 2.2 hereof, any necessary filings and qualifications
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under applicable state and federal securities laws, and (iii) any licenses,
approvals, filings and qualifications required under applicable state gaming
laws.
SECTION 4
Representations and Warranties of Xxxxxxxx
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Xxxxxxxx hereby represents and warrants to Boomtown as follows:
4.1 Power; Authorization. Xxxxxxxx has full right, power and authority to
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execute and deliver this Agreement and to carry out and perform his obligations
under the terms of this Agreement. This Agreement, when executed and delivered
by Xxxxxxxx, shall constitute a valid and binding obligation of Xxxxxxxx,
enforceable in accordance with its terms.
4.2 No Conflict. The execution and delivery of this Agreement do not, and
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the consummation of the transactions contemplated hereby will not, conflict with
or violate or result in a default under the provisions of any contract or other
agreement to which Xxxxxxxx is a party or result in any violation of any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Xxxxxxxx.
4.3 Governmental Consent, Etc. No consent, approval or authorization of
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or designation, declaration or filing with any governmental authority on the
part of Xxxxxxxx is required in connection with the valid execution and delivery
of this Agreement by Xxxxxxxx or the consummation by Xxxxxxxx of the
transactions contemplated hereby, other than (i) such licenses and approvals as
may be referenced in the Agreement to Lease and the agreements delivered in
connection therewith and (ii) any licenses, approvals, filings and
qualifications required under applicable state gaming laws.
SECTION 5
Conditions to Closing of the Xxxxxxxx Parties
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The Xxxxxxxx Parties' obligation to sell the Partnership Interest at the
Closing is subject to the fulfillment (or waiver by Xxxxxxxx Parties holding a
majority in interest of the Partnership Interest) on or prior to the Closing
Date of the following conditions:
5.1 Representations and Warranties Correct. The representations and
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warranties made by Boomtown in Section 3 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects
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on the Closing Date with the same force and effect as if they had been made on
and as of that date.
5.2 Covenants. All covenants, agreements and conditions contained in this
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Agreement to be performed by Boomtown on or prior to the Closing Date shall have
been performed or complied with in all material respects.
5.3 Securities Law Compliance. In the event the Xxxxxxxx Parties have
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elected to receive Boomtown Common Stock as all or part of the consideration to
be delivered in exchange for the Partnership Interest, Boomtown shall have
obtained all necessary permits and qualifications, or secured an exemption
therefrom, required by applicable state and federal securities laws for the
offer and sale of the Boomtown Common Stock hereunder.
5.4 Stockholder Consent. This Agreement and the transactions contemplated
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hereby shall have been approved by the stockholders of Boomtown, or the Chief
Executive Officer of Boomtown shall have delivered a letter to Xxxxxxxx
certifying that such approval is not required.
5.5 Compliance with Applicable Gaming Laws. Each of Boomtown and the
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Xxxxxxxx Parties shall have obtained all licenses, approvals, permits and
qualifications, or secured an exemption therefrom, required under applicable
state gaming laws in connection with the purchase and sale of the Partnership
Interest hereunder.
SECTION 6
Conditions to Closing of Boomtown
---------------------------------
Boomtown's obligation to purchase the Partnership Interest at the Closing
is subject to the fulfillment (or waiver by Boomtown) on or prior to the Closing
Date of the following conditions:
6.1 Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by Xxxxxxxx (and any other Xxxxxxxx Parties) in Section 4 hereof
shall be true and correct in all material respects when made, and shall be true
and correct in all material respects on the Closing Date with the same force and
effect as if they had been made on and as of such date.
6.2 Covenants. All covenants, agreements and conditions contained in this
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Agreement to be performed by Xxxxxxxx Parties on or prior to the Closing Date
shall have been performed or complied with in all material respects.
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6.3 Securities Law Compliance. In the event the Xxxxxxxx Parties have
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elected to receive Boomtown Common Stock as all or part of the consideration to
be delivered in exchange for the Partnership Interest, Boomtown shall have
obtained all necessary permits and qualifications, or secured an exemption
therefrom, required by applicable state and federal securities laws for the
offer and sale of the Boomtown Common Stock hereunder.
6.4 Investment Representation Letter. In the event the Xxxxxxxx Parties
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have elected to receive Boomtown Common Stock as all or part of the
consideration to be delivered in exchange for the Partnership Interest, each
Xxxxxxxx Party shall have delivered to Boomtown an investment representation
letter in form and substance satisfactory to Boomtown stating, among other
things, (i) that such Xxxxxxxx Party is purchasing the Boomtown Common Stock for
investment purposes for its own account and not with a view to distributing the
Boomtown Common Stock; (ii) such Xxxxxxxx Party's understanding that the
Boomtown Common Stock constitutes "restricted securities" under federal
securities laws and can only be resold under limited circumstances without
registration under the Securities Act of 1933, and (iii) that such Xxxxxxxx
Party agrees that if it should later desire to transfer any shares of Boomtown
Common Stock, it shall not do so without first obtaining an opinion of counsel
satisfactory to Boomtown that such proposed disposition or transfer may lawfully
be made.
6.5 Stockholder Consent. This Agreement and the transactions contemplated
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hereby shall have been approved by the stockholders of Boomtown, if required.
6.6 Compliance with Applicable Gaming Laws. Each of Boomtown and the
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Xxxxxxxx Parties shall have obtained all licenses, approvals, permits and
qualifications, or secured an exemption therefrom, required under applicable
state gaming laws in connection with the purchase and sale of the Partnership
Interest hereunder.
SECTION 7
Exchange Option
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7.1 Exchange Option. At any time at least three (3) years after the
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Commencement Date (as defined in the Lease) and prior to the Exchange
Termination Date (as defined in Section 7.8 hereof), Boomtown may elect to
require the Xxxxxxxx Parties to sell to Boomtown, or Xxxxxxxx Parties holding at
least a majority in interest of the Partnership Interest may elect to require
Boomtown to purchase from all Xxxxxxxx Parties, the Partnership Interest on the
terms and conditions set forth herein (the "Exchange Option").
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7.2 Exchange Consideration. The consideration to be delivered by Boomtown
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in exchange for the Partnership Interest shall be either (i) cash having a value
equal to the Aggregate Value of the Partnership Interest (as determined pursuant
to Section 7.3 hereof), (ii) that number of shares of Boomtown Common Stock
equal to the Aggregate Value of the Partnership Interest divided by the value of
a share of Boomtown Common Stock as determined pursuant to Section 7.3(b), or
(iii) a combination of cash and Boomtown Common Stock which have an aggregate
value equal to the Aggregate Value of the Partnership Interest, as elected by
Xxxxxxxx Parties holding at least a majority in interest of the Partnership
Interest.
7.3 Valuation.
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(a) Partnership. The Aggregate Value of the Partnership shall equal
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the following:
(i) That amount equal to the difference between (A) six (6) times
the sum of the Partnership's (w) consolidated net income for the last completed
fiscal year immediately preceding the date of the Exchange Notice (as defined in
Section 7.4 hereof), plus (x) depreciation and amortization charges for such
fiscal year, plus (y) the provision for any income taxes for accounting purposes
for such fiscal year, and plus (z) interest expense on long-term debt for such
fiscal year, less (B) the sum of all the Partnership's Indebtedness, all as
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied. As used in this Section 7.3,
Indebtedness means long-term debt of the Partnership which was incurred directly
for the benefit of the business operated by the Partnership (and which business
is within the purpose and scope of the Partnership as set forth in Section 2.3
of the Partnership Agreement), provided that debt in excess of Two Million Five
Hundred Thousand Dollars ($2,500,000) which is incurred in connection with the
construction or acquisition of property, plant or equipment shall not be
included until one (1) year after the in-service date for the asset with which
the debt is associated.
The Aggregate Value of the Partnership Interest shall be determined by
multiplying the fraction of the Partnership represented by the Partnership
Interest by the Aggregate Value of the Partnership.
(b) Boomtown Common Stock. The value of Boomtown Common Stock for
---------------------
purposes of the Exchange Option shall be the average closing price thereof as
reported on the National Association of Securities Dealers, Inc. National
Market System (or, if at the time of delivery of the Exchange Notice the
Boomtown Common Stock is traded on an exchange, as reported on such exchange),
for the thirty (30) trading days immediately preceding the date of the Exchange
Notice.
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(c) Valuation Certificate. The Aggregate Value of the Partnership
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shall be calculated by the principal financial officer of the Partnership, and
shall be concurred in by the independent public accounting firm employed by the
Partnership. Within thirty (30) days after the date of the Exchange Notice, the
principal financial officer of the Partnership shall deliver to each of Boomtown
and the Xxxxxxxx Parties a certificate (the "Valuation Certificate"), signed by
such officer and an officer of the Partnership's independent public accounting
firm. The Aggregate Value of the Partnership set forth in the Valuation
Certificate shall represent the final determination of the Aggregate Value of
the Partnership for purposes of this Agreement.
7.4 Notice of Election to Exchange. The Exchange Option shall be
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exercisable at any time on or after the date which is three (3) years after the
Commencement Date and prior to the Exchange Termination Date, by delivery of a
notice of election to exchange (the "Exchange Notice") (i) by Boomtown to each
of the Xxxxxxxx Parties, with a copy to the principal financial officer of the
Partnership, or (ii) by Xxxxxxxx Parties holding at least a majority in interest
of the Partnership Interest to Boomtown and to all other Xxxxxxxx Parties, with
a copy to the principal financial officer of the Partnership, stating that the
party or parties delivering the Exchange Notice have elected to implement the
Exchange Option and, in the case of an Exchange Notice sent by the Xxxxxxxx
Parties, stating the form of consideration the Xxxxxxxx Parties have elected to
receive.
7.5 Consideration. In the event Boomtown has delivered the Exchange
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Notice, within fifteen (15) days after the date of the Exchange Notice, Xxxxxxxx
Parties holding at least a majority in interest of the Partnership Interest
shall deliver to Boomtown a Notice of Election of Consideration, which shall
specify the form of consideration the Xxxxxxxx Parties have elected to receive
in exchange for the Partnership Interest, as determined in accordance with the
provisions of Section 7.2 hereof. In the event the Xxxxxxxx Parties fail to
deliver to Boomtown a Notice of Election of Consideration within such fifteen
(15) day period, Boomtown shall have the right to determine, in accordance with
the provisions of Section 7.2 hereof, the form of consideration to be given to
the Xxxxxxxx Parties.
7.6 Closing. The closing of the purchase and sale of the Partnership
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Interest to Boomtown shall be held as specified in Section 2.1 hereof, on a date
not later than thirty (30) days following the date of the Valuation Certificate.
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7.7 Acquisition of Boomtown.
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(a) Consideration. In the event of a merger or consolidation of
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Boomtown with or into any other entity, following which (i) an entity other than
Boomtown is the surviving corporation or (ii) such other entity becomes the
parent corporation of Boomtown, or a sale of all or substantially all of
Boomtown's assets, which event occurs prior to (A) the Closing of the purchase
and sale of the Partnership Interest hereunder and (B) the Exchange Termination
Date, then if the consideration delivered to the stockholders of Boomtown in
such transaction is securities of the acquiring entity, thereafter upon exercise
of the Exchange Option the Xxxxxxxx Parties shall have the right to receive
securities of the acquiring entity; provided that (i) if in the reasonable
opinion of Boomtown the foregoing provisions of this Section 7.7 would impair
Boomtown's ability to consummate such transaction on terms which are in the best
interests of Boomtown and its stockholders, or (ii) if the consideration
delivered to the stockholders of Boomtown in such transaction is cash and/or
property other than securities, then the Xxxxxxxx Parties shall be required to
elect cash in exchange for the Partnership Interest, and the provisions of this
Agreement providing for the transfer of shares of Boomtown Common Stock shall
have no further force or effect.
(b) Valuation of Acquiror Securities. For purposes of Section 7.7(a)
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hereof, the securities of the acquiring corporation shall be valued in
accordance with the formula set forth with respect to Boomtown Common Stock in
Section 7.3(b) hereof; provided that if such securities are not publicly traded,
then the value of the securities shall be determined by an independent appraiser
mutually selected by Boomtown and Xxxxxxxx Parties representing a majority in
interest of the Partnership Interest, and the costs and expenses of such
appraiser shall be shared equally by Boomtown and the Xxxxxxxx Parties. In the
event Boomtown and the Xxxxxxxx Parties are unable to agree on the selection of
an independent appraiser, each shall select an appraiser and the two selected
appraisers shall select a third, whose determination as to the value of the
securities shall be final. The costs and expenses of such latter appraiser
shall be shared equally by Boomtown and the Xxxxxxxx Parties. In the event an
independent appraisal of the securities is required, notwithstanding anything to
the contrary contained in Sections 2.1 and 7.6 hereof, the closing of the
purchase and sale of the Partnership Interest shall occur on a date not later
than sixty (60) days following the date of the Valuation Certificate.
7.8 Exchange Termination Date. The Exchange Option shall terminate and
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have no further force or effect on the date which is seven (7) years from the
date of this Agreement (the "Exchange Termination Date"), provided that the
obligations of Boomtown and the Xxxxxxxx Parties under the
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Exchange Option shall apply to any Exchange Notice delivered prior to the
Exchange Termination Date.
SECTION 8
Boomtown Right of First Refusal on Transfer
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8.1 Right of First Refusal. In the event that the Xxxxxxxx Parties elect
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to receive Boomtown Common Stock as all or a portion of the consideration to be
delivered in exchange for the Partnership Interest, then Boomtown shall have the
right of first refusal (the "First Refusal Right") described in this Section 8.
8.2 Election to Transfer. Prior to making any sale or transfer of
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Boomtown Common Stock, any Xxxxxxxx Party electing to transfer Boomtown Common
Stock (the "Transferor") shall give Boomtown the opportunity to purchase the
Boomtown Common Stock it has elected to transfer in the following manner:
(a) Transfer Notice. The Transferor shall deliver a notice (the
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"Transfer Notice") to Boomtown in writing stating its intention to transfer
Boomtown Stock, and specifying the name of the proposed purchaser or transferee,
the amount of Boomtown Common Stock proposed to be sold or transferred, the
proposed price per share therefor (the "Transfer Price"), the proposed form of
consideration therefor, and any other material terms upon which such disposition
is proposed to be made.
(b) Exercise Notice. Boomtown shall have the right, exercisable by
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written notice given by Boomtown to the Transferor within thirty (30) days after
receipt of such Transfer Notice, to purchase all of the Boomtown Common Stock
specified in such Transfer Notice at the Transfer Price by payment of the
consideration described in the Transfer Notice; provided that if the
consideration to be delivered is property other than cash, then Boomtown shall
pay the fair market value of such shares, as determined in accordance with the
formula set forth in Section 7.3(b) hereof.
(c) Closing. If Boomtown exercises its First Refusal Right hereunder,
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the closing of the purchase of the Boomtown Common Stock with respect to which
such right has been exercised shall take place within ninety (90) calendar days
after the date on which Boomtown has given notice of such exercise, which period
of time shall be extended in order to comply with applicable laws and
regulations. Upon the exercise by Boomtown of its First Refusal Right, Boomtown
and the Transferor shall be legally obligated to consummate the purchase
contemplated thereby and shall use their best efforts to secure any approvals
required in connection therewith.
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(d) Transfer to Third Party. If Boomtown does not exercise its First
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Refusal Right with respect to a Transfer Notice within the time specified for
such exercise, the Transferor shall have the right, during the period of sixty
(60) calendar days following the expiration of such time for exercise, to sell
the Boomtown Common Stock specified in such Transfer Notice at the Transfer
Price and on other terms substantially similar to the terms specified in the
Transfer Notice.
8.3 Assignment of Rights. In the event that Boomtown elects to exercise
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the First Refusal Right, Boomtown may specify in its notice of intention to
exercise such right a person as its designee to purchase the Boomtown Common
Stock to which the Transfer Notice relates.
8.4 Exclusion. The First Refusal Right shall not apply to (i) any sale or
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transfer to a partner, stockholder, ancestor, descendant, sibling or spouse of a
Xxxxxxxx Party, or to a custodian, trustee, executor or other fiduciary for the
account of a Xxxxxxxx Party or any ancestor, descendant, sibling or spouse of a
Xxxxxxxx Party, provided that the transferee executes a writing reasonably
satisfactory to Boomtown agreeing to be bound by the provisions of this Section
8, or (ii) open market transfers pursuant to Rule 144 under the Securities Act
of 1933, provided that the Transferor has no reason to believe that the
purchaser of such stock will own following such sale or series of sales Boomtown
Common Stock aggregating five percent (5%) or more of the outstanding Boomtown
Common Stock.
SECTION 9
Miscellaneous
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9.1 Assumption. In the event that Xxxxxxxx elects to designate any
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Authorized Transferee to acquire an interest in the Partnership, in accordance
with the terms of the Partnership Agreement, then as a condition precedent to
such acquisition, each such Authorized Transferee shall execute and deliver to
Boomtown a writing reasonably acceptable to Boomtown pursuant to which such
Authorized Transferee (i) agrees to be bound by all the terms and conditions of
this Agreement and (ii) makes the representations and warranties set forth in
Section 4 hereof, with such changes to the form of such representations and
warranties as may be necessary in the case of Authorized Transferees who are
partnerships or corporate entities rather than individuals.
9.2 Further Assurances. Each of Boomtown and the Xxxxxxxx Parties shall
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take all such actions, and shall execute and deliver all such documents and
instruments, as may be reasonably requested by the other to carry out the
purposes
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and intent of the provisions of this Agreement and to fulfill the Conditions to
Closing of such party as set forth herein.
9.3 Governing Law; Arbitration. This Agreement shall be governed in all
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respects by the laws of the State of Delaware. Any controversy or claim arising
out of or relating to this Agreement shall be settled by arbitration in the
State of Nevada. Such arbitration shall be in accordance with the rules of the
American Arbitration Association, and judgment upon the award may be entered in
any court of competent jurisdiction. The prevailing party or parties in such
arbitration and any ensuing legal action shall be reimbursed by the party or
parties who do not prevail for their reasonable attorneys', accountants' and
experts' fees and the costs of such actions.
9.4 Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
9.5 Entire Agreement; Amendment. This Agreement constitutes the full and
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entire understanding and agreement between the parties with regard to the
subject matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by (i) Boomtown and (ii) Xxxxxxxx Parties holding a majority in interest
of the Partnership Interest.
9.6 Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to Boomtown, to Xxxxxxxxxx 00/Xxxxxx Xxxx, Xxxxx, Xxxxxx 00000,
Attention: Chief Financial Officer; or at such other address as Boomtown shall
have furnished to the Xxxxxxxx Parties in writing, or (b) if to any Xxxxxxxx
Party to 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000; or at such other
address as a Xxxxxxxx Party shall have furnished to Boomtown in writing.
9.7 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any party upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party or any breach or default under this Agreement, or any waiver on the part
of any holder of any provisions or conditions of this Agreement, must be in
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writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
9.8 Counterparts. This Agreement may be executed in two counterparts,
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each of which shall be enforceable against the party actually executing such
counterparts, and both of which together shall constitute one instrument.
9.9 Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
9.10 Termination. In the event that within two (2) years after the
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Commencement Date the Xxxxxxxx Parties have not received the licenses required
by Section 3.10 of the Lease, this Agreement shall be null and void and shall
have no further force or effect.
IN WITNESS WHEREOF, the parties hereto have set their names as of the date
first above written.
BOOMTOWN, INC.
By:____________________________
Title:_________________________
XXXX X. XXXXXXXX
_______________________________
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