EXHIBIT 10.05
GUARANTEE OF MINIMUM RENT
FOR VALUABLE CONSIDERATION, the receipt of which is
hereby acknowledged, and to induce the ST. LOUIS COUNTY PORT
AUTHORITY, a public body corporate and politic of the State of
Missouri ("Landlord") to enter into that certain Lease and
Development Agreement dated as of the date hereof (the "Lease")
with Southboat Limited Partnership, a Missouri limited
partnership ("Tenant"), SHOWBOAT, INC., a Nevada corporation
("Guarantor"), having its principal place of business at 0000
Xxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, does hereby
unconditionally covenant and agree with Landlord, its successors
and assigns, as follows:
1. Terms defined in the Lease and used in this
Guarantee of Minimum Rent (the "Rent Guarantee") shall have
the same meaning herein as so defined.
2. If an Event of Default shall occur under Section
25(a)(i) of the Lease at any time during the Guarantee Period (as
hereinafter defined) due to the failure of Tenant to pay, within
ten (10) days after notice of nonpayment (unless notice shall no
longer be required pursuant to such subsection), any component or
installment of Minimum Rent, or if the Lease shall be terminated
at any time during the Guarantee Period due to an Event of
Default, then Guarantor will well and truly immediately pay
Landlord on demand, in cash, the full sum of unpaid Minimum Rent
due Landlord under the Lease for the remainder of the Guarantee
Period, not to exceed the total amount of all Minimum Rent
allocable to the Guarantee Period (the "Guaranteed Amount"). As
used in this Rent Guarantee, the term "Guarantee Period" shall
mean that period commencing on the Commencement Date and ending
on the last day of the 15th Lease Year occurring after the
Commencement Date. Notwithstanding the first sentence of this
Section 2, in lieu of paying to Landlord in one lump sum the
entire Guaranteed Amount, Guarantor may elect to pay to Landlord
the Minimum Rent as and when the same would have otherwise been
due under the Lease through the remainder of the Guarantee Period
had the Lease not been terminated or had an Event of Default
under Section 25(a)(i) not occurred; provided, however, that in
order to avail itself of such payment option, Guarantor shall
deliver to Landlord, in addition to all accrued but unpaid sums
of Minimum Rent, if any, an irrevocable letter of credit in the
stated amount of $2 million issued by a national bank or
financial institution acceptable to Landlord in Landlord's
discretion and unconditionally permitting Landlord to draw the
entire stated amount of the letter of credit upon presentation to
the issuer of Landlord's certificate stating that Guarantor has
failed (a) to make timely payment, as and when due, of any
installment of Minimum Rent, or (b) to renew or replace the
letter of credit not later than 30 days prior to the expiration
of the term thereof. In addition, in the event Landlord becomes
entitled to draw down the letter of credit provided by Guarantor,
or in the event an Event of Default under this Guarantee shall
occur, Guarantor's option to make installment payments of Minimum
Rent shall be null and void, and Guarantor shall immediately pay
to Landlord, on demand, in cash, the full sum of the Guaranteed
Amount due but unpaid.
3. This Rent Guarantee constitutes an absolute and
unconditional guarantee of payment of Minimum Rent during the
Guarantee Period. It shall be enforceable against Guarantor, its
successors and assigns, without the necessity for any suit or
proceedings by Landlord against Xxxxxx, its successors and
assigns, and without the necessity of any notice of acceptance of
this Rent Guarantee. In addition, Guarantor further waives any
right Guarantor may have to seek a reduction in, or a credit
against payment of, the Guaranteed Amount, or any portion
thereof, for any reason other than payment of the Guaranteed
Amount or refusal to lease to a successor tenant meeting all of
the Stated Criteria (as defined in the Lease), including without
limitation any claim based on the failure of Landlord (a) to
mitigate its damages except as required in the Lease or in
accepting a tenant meeting all of the Stated Criteria, (b) to
obtain a new tenant, licensee or operator to replace or succeed
Tenant other than a tenant meeting all of the Stated Criteria, or
(c) to realize fair market value rentals or any other income from
the leasing, licensing or operation of the Premises; provided,
however, that the Guaranteed Amount shall be reduced by an amount
equal to any rent or license or operating fees actually received
by Landlord during the Guarantee Period from any new tenant,
licensee or operator of the Premises procured by Landlord, after
deduction of (i) any Rent and Additional Rent accrued under the
Lease but unpaid to Landlord, and (ii) Landlord's reasonable
expenses incurred in the enforcement of Tenant's obligations
under the Lease and Guarantor's obligations under this Rent
Guarantee, and in reletting or licensing the use of the Premises,
including, without limitation reasonable brokerage fees and
commissions and reasonable attorneys' fees and expenses.
4. Guarantor agrees that the validity of this Rent
Guarantee and the obligations of Guarantor shall in no way be
terminated, affected or impaired by reason of the assertion or
the failure or delay to assert by Landlord against Tenant, or
Xxxxxx's successors and assigns, any of the rights or remedies
reserved to Landlord pursuant to the provisions of the Lease.
The single or partial exercise of any right, power or privilege
under this Rent Guarantee shall not preclude any other or the
further exercise thereof or the exercise of any other right,
power or privilege by Landlord.
5. Failure of Guarantor to honor any demand for payment
under this Rent Guarantee within ten (10) days after notice
thereof by Landlord (which notice shall not be required more than
twice during any twelve month period) and to make immediate
payment of any sums due hereunder, or the breach by Guarantor of
any representation or warranty of Guarantor hereunder, shall
constitute an Event of Default hereunder.
6. This Rent Guarantee shall not be affected and the
liability of the Guarantor shall not be extinguished or
diminished by Landlord's receipt, application or release of
security given for the performance and observation of the
covenants and conditions in the Lease to be performed or observed
by Xxxxxx, its successors and assigns, including any sums paid by
Guarantor under the Guarantee of Completion issued by Guarantor
to Landlord on the date hereof (the "Completion Guarantee"), by
the cessation from any cause whatsoever of the liability of
Tenant, its successors and assigns, by reason of sums paid or
payable to Landlord from the proceeds of any insurance policy or
condemnation award (unless the Lease is terminated incident to
condemnation), or by any extensions, renewals, amendments,
indulgences, modifications, transfers or assignments in whole or
in part of the Lease, whether or not notice thereof is given to
Guarantor.
7. Xxxxxxxxx agrees that the liability of Guarantor
is co-extensive with that of Tenant and also joint and several.
8. Xxxxxxxx's acceptance of a note or collateral of
Tenant shall not constitute the full cash payment required herein.
This Rent Guarantee is given in addition to all other guarantees
which may pertain to Tenant's indebtedness, and is not subordinate
to any other guarantees. Landlord's rights under all guarantees,
including this Rent Guarantee, shall be cumulative and
independently enforceable. It shall not be a condition to the
enforcement of this Guarantee that any other guarantees or
collateral be resorted to by Landlord. Any such collateral or
guarantee, including the Completion Guarantee, may be applied by
Landlord in satisfaction of any obligation or liability of Tenant
under the Lease without thereby impairing, reducing, diminishing
or otherwise modifying the obligations of Guarantor under this
Rent Guarantee.
9. In order to induce Landlord to enter into the
Lease, Guarantor makes the following representations and
warranties to Landlord, all of which representations and
warranties shall be deemed restated as of the Commencement Date:
(a) Guarantor is duly formed and validly existing as a
Nevada corporation;
(b) the execution and delivery of this Rent Guarantee
and the performance by Guarantor of Guarantor's obligations
hereunder have been duly authorized by all requisite corporate
action;
(c) this Rent Guarantee constitutes the legal, valid
and binding obligation of Guarantor and is enforceable against
Guarantor in accordance with its terms;
(d) no litigation or regulatory proceedings are
pending or, to the best of Guarantor's knowledge, threatened
against Guarantor which, if adversely determined, would likely
have a material adverse impact on Guarantor or on this Rent
Guarantee;
(e) Guarantor is not a party to, and neither Guarantor
nor Guarantor's properties, real or personal, are subject to, any
agreement, order, proceeding, ruling or other matter in conflict
with any provision of this Rent Guarantee or which materially and
adversely affects its ability to perform its obligations
hereunder;
(f) Guarantor is solvent and is not a party to any
assignment for the benefit of creditors or bankruptcy proceeding;
and
(g) Guarantor is not in material default of any
contract or agreement to which it is a party which materially and
adversely affects Guarantor's ability to perform its obligations
under this Rent Guarantee.
10. Xxxxxxxxx agrees that it will, at any time and
from time to time, within ten (10) business days following written
request by Landlord, execute, acknowledge and deliver to Landlord
a statement certifying that this Rent Guarantee is unmodified and
in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating
such modifications). Guarantor agrees that such certificate may
be relied on by third parties. Should
Landlord be obligated byany bankruptcy or other law in
connection with any bankruptcyproceeding of Tenant or Guarantor
to repay to Tenant or toGuarantor or to any trustee, receiver or
other representative orany of them, any amounts previously paid
to Landlord, itssuccessors and assigns, this Rent Guarantee
shall be reinstatedin the amount of such repayments.
11. As a further inducement to Landlord to make and
enter into the Lease and in consideration thereof, Landlord and
Guarantor covenant and agree that in any action or proceeding
brought on, under or by virtue of this Rent Guarantee, Landlord
and Guarantor shall and do hereby waive trial by jury. Without
regard to principles of conflicts of laws, the validity,
interpretation, performance and enforcement of this Rent
Guarantee shall be governed by and construed in accordance with
the laws of the State of Missouri, and Guarantor hereby consents
to jurisdiction and venue in the United States District Court for
the Eastern District of Missouri, St. Louis, Missouri, wherein
Landlord at its election may bring an action for the enforcement
of this Rent Guarantee. If Landlord commences an action in
either of such courts, Guarantor hereby agrees that it will
submit to the personal jurisdiction of such court and will not
attempt to have such action dismissed, abated or transferred on
the ground of FORUM NON CONVENIENS.
12. Guarantor covenants and agrees that for so long as
the restrictive covenant described in Section 12 of the Lease shall
remain in effect as against Tenant, Guarantor shall not
participate in any manner in the ownership, sponsorship, control,
management, operation or use of any riverboat gaming facility
along either the Illinois or Missouri banks of the Mississippi
River from the southern boundary of the City of St. Louis to the
northern boundary of Jefferson County, Missouri. Guarantor
acknowledges that the restrictive covenant contained in this
Section 12 (and made by the Tenant under the Lease) is reasonable
under all of the circumstances. The provisions of this Section
12 shall survive any termination of this Rent Guarantee.
13. Guarantor covenants and agrees to pay interest to
Landlord on any and all sums due Landlord hereunder which remain
unpaid for more than five (5) days after delivery of Landlord's
demand for payment, commencing on the date such payment is due,
at the rate of two percent (2%) in excess of the from time to
time publicly announced corporate base rate of interest of The
Boatmen's National Bank of St. Louis.
14. If any provision or application of this Rent
Guarantee is invalid, unenforceable or illegal for any reason,
the parties agree that such invalid, unenforceable or illegal
provision or application shall be deemed modified to the extent,
but only to the extent, required to make such portion or
application enforceable, and that no such modification shall be
deemed to affect the remainder of this Rent Guarantee.
15. Unless otherwise indicated differently, all
notices, payments, requests, reports, information or demands which
any party hereto may desire or may be required to give to any other
party hereunder, shall be in writing and shall be personally
delivered or sent by telegram, telex, telecopier or first-class
certified or registered United States mail, postage prepaid,
return receipt requested, and sent to the party at its address
appearing below or such other address as party shall hereafter
inform the other party hereto by written notice given as
aforesaid:
If to Guarantor: Showboat, Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: X. Xxxxxxx Xxxxx
With a copy to: Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx
Seventh Floor
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
If to Landlord: St. Louis County Port Authority
Economic Council of St. Louis
County
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Director of Real Estate
With copies to: Economic Council of St. Louis
County
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
St. Louis County
00 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: County Counselor
All notices, payments, requests, reports, information
or demands so given shall be deemed effective upon receipt, or if
mailed, upon receipt or the expiration of the third day following
the date of mailing, whichever occurs first, except that any
notice of change in address shall be effective only upon receipt
by the party to whom said notice is addressed.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Rent
Guarantee this 13 day of October 1995.
SHOWBOAT, INC.
By:__/s/_______________________
Name: X. Xxxxxxx Xxxxx
Title: Secretary
