EXHIBIT 10.06
GUARANTEE OF COMPLETION
This GUARANTEE OF COMPLETION ("Completion Guarantee")
is made this 13 day of October, in favor of the St. Louis County
Port Authority, a public body corporate and politic of the State
of Missouri ("Landlord").
WHEREAS, Southboat Limited Partnership, a Missouri
limited partnership ("Tenant") has entered into a Lease and
Development Agreement with Landlord dated the date hereof (the
"Lease");
WHEREAS, terms defined in the Lease and used herein
shall have the same meaning herein as so defined;
WHEREAS, Guarantor is the parent company of Showboat
Xxxxx, Inc., a Nevada corporation, the general partner of Tenant;
WHEREAS, under certain circumstances, which are
specifically set forth herein and in the Lease, Guarantor has
agreed to assure the completion of the Project;
NOW, THEREFORE, in consideration of the foregoing, and
for such good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor and
Landlord covenant and agree as follows:
1. The terms used in the Lease shall have the same
meaning herein, unless otherwise defined.
2. If Tenant shall abandon the Project after the
commencement of the Work for a period of more than thirty (30)
days after receipt of notice from Landlord concerning same, then
Guarantor unconditionally agrees to complete, or to cause the
completion of, the Project.
3. Guarantor agrees to indemnify and hold Landlord
harmless from and against any and all losses, costs, claims,
damages, liabilities and expenses, including but not limited to
reasonable attorneys' fees, which Landlord sustains by reason of
Guarantor's failure to cause completion of the Project. Landlord
will notify Guarantor in writing of any legal proceeding brought
against Landlord for which Landlord will seek indemnification and
Guarantor shall have the right to intervene in any such
proceeding.
4. Guarantor hereby agrees that in the event of the
failure of Guarantor to complete the Project, Landlord shall be
entitled to enforce the obligations of Guarantor hereunder upon
thirty (30) days prior written notice to Guarantor. Upon the
failure of Guarantor to comply with its covenants contained
herein, Landlord may, without waiving or releasing Guarantor from
its obligations hereunder, and without prejudice to any other
right or remedy of Landlord, perform such covenant or agreement
in respect of which there shall be a default hereunder and in
that regard pay such money as may be required. Any such monies
paid by Landlord, as aforesaid, together with interest thereon at
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, shall be due and payable by
Guarantor to Landlord upon demand.
5. No delay on the part of Landlord in exercising
Landlord's rights, powers and privileges or partial or single
exercise thereof under this Completion Guarantee shall operate as
a waiver of any such rights, powers or privileges. No waiver of
any of its rights, powers of privileges hereunder, and no
modifications of amendment of this Completion Guarantee, shall be
deemed to be made by Landlord unless the same shall be in
writing, duly signed on behalf of Landlord, by a duly authorized
officer, and each such waiver, if any, shall apply only with
respect to the specific instance involved, and shall in no way
impair the rights of Landlord or the obligations of Guarantor to
Landlord in any other respect at any other time.
6. All rights, powers, privileges and remedies
afforded to Landlord by reason of this Completion Guarantee are
separate and cumulative rights, powers, privileges and remedies
and no one such right, power, privilege and remedy whether or not
exercised by Landlord shall be deemed to exclude any of the other
rights, powers, privileges and remedies available to Landlord nor
prejudice the availability of any other legal or equitable remedy
which Landlord may have under the Lease or in the Project.
7. This Completion Guarantee shall be construed and
interpreted in accordance with, and all disputes hereunder and
thereunder shall be governed by, the laws of the State of
Missouri. Landlord may bring any action or proceeding to enforce
or arising out of this Completion Guarantee in any court of
competent jurisdiction. Any action or proceeding brought by the
Guarantor arising out of this Completion Guarantee shall be
brought solely in in the United States District Court for the
Eastern District of Missouri. 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.
8. This Completion 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 Tenant, its successors and assigns, including any sums paid by
Guarantor under the Guarantee of Minimum Rent issued by Guarantor
to Landlord on the date hereof (the "Rent 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 (except in the event of termination of the
Lease 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.
9. All of the terms, covenants, warranties and
conditions contained in this Completion Guarantee shall be
binding upon and inure to the sole and exclusive benefit of the
parties hereto and their respective heirs, executors and
administrators, successors and assigns.
10. This Completion Guarantee shall terminate only at
such time as the Project is finally and fully completed pursuant
to the Plans and all obligations of Tenant in respect of the
completion of the Work and of Guarantor hereunder have been fully
paid or met to the reasonable satisfaction of Landlord.
11. This Completion Guarantee contains the entire
understanding between the Guarantor and Landlord and supersedes
any prior understandings or agreements between them whether
written or oral. There are no representations, agreements,
arrangements or understandings (whether oral or written), between
or among the parties hereto relating to the subject matter hereof
which are not fully expressed herein. This Completion Guarantee
may not be amended without the written consent of each party
hereto.
12. 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: H. Xxxxxxx Xxxxx
With a copy to: Xxxxxx Kaempfer 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, the Guarantor and Landlord have
caused this Completion Guarantee to be executed by its duly
authorized signatories as of the day and year first above
written.
GUARANTOR: LANDLORD:
SHOWBOAT, INC., a ST. LOUIS COUNTY PORT AUTHORITY
Nevada corporation
By:_/s/______________ By:_/s/_____________________
H. Xxxxxxx Xxxxx
Secretary
