Exhibit 10.6
TECHNICAL SERVICES AGREEMENT
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THIS TECHNICAL SERVICES AGREEMENT (the "Agreement") is executed as of the
22nd day of September, 1998, by and between QNOV, a Louisiana joint venture
("Owner") and HWCC-SHREVEPORT, INC., a Louisiana corporation ("HWCC").
RECITALS:
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A. Owner is or will become (i) the lessee of those certain premises located
on or adjacent to the Red River in the City of Shreveport, State of Louisiana
owned by the City of Shreveport and more particularly described on Exhibit "A"
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which is attached hereto and made a part hereby by reference (the "Property"),
and (ii) owner in fee of a pavilion, hotel, parking garages and other facilities
to be located on the Property and a riverboat to be located in a xxxxxx dam on
the Property which shall be licensed to conduct gaming activity thereon
(collectively referred to as the "Project"); and
B. The Owner has undertaken to construct, develop and operate the
Project; and
C. The Owner wishes to be advised by HWCC in regard to the planning and
project coordination during the construction of the Project and the pre-opening
period as described herein, pursuant to the terms and provisions hereof; and
D. The Project must be built in accordance with fixed plans and
specifications, in accordance with minimum standards recommended by HWCC and set
by the Owner (the "Standards"); and
E. HWCC and its affiliates have ample experience in the planning and
overall project coordination during the construction and pre-opening of casino
properties in accordance with the Standards and desire to undertake the duties
described herein pursuant to the terms and provisions hereof. Sodak Gaming,
Inc. ("Sodak") has experience in casino design and layout, gaming equipment and
the purchasing and expediting of all furniture and equipment and desires to have
an opportunity to consult with HWCC with respect thereto.
AGREEMENTS
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In consideration of the premises and the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Technical Services. During the Pre-Opening Period (as hereinafter
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defined), HWCC shall perform the following services for the Owner (the
"Technical Services"):
(a) Advising the Owner in the selection of the architects and other
consultants to prepare
the plans and specifications and in the planning and general coordination of the
Project in accordance with the plans and specifications and the Standards;
(b) Assisting in the completion of the necessary financial and legal
documentation for securing the financing for the Project from the appropriate
institutions;
(c) Representing the Owner to the architects in the design and planning of
the Project;
(d) Guiding the architects in their coordination of the interrelationship
between the engineering, civil engineering, interior design, equipping and, in
general, overall coordination of the work on the Project;
(e) Supervising the equipping of the Project, including, without
limitation, the preparation of budgets, quantities and specifications, and the
procurement and installation thereof;
(f) Supervising the furnishing of the Project, including, without
limitation, the formation of budgets, and the coordination of the installation
of furnishings in accordance with the requirements and the Standards;
(g) Coordinating the work of the contractors, architects, designers and
suppliers named by the Owner;
(h) Making available to the Owner, on a regular basis, information that
HWCC has with respect to prices of equipment, provisions and supplies for the
Project and the progress of construction; and
(i) Purchasing, or causing to be purchased, furniture, fixtures and
equipment for the Project. It is agreed that HWCC may contract with third
parties for such purchases; provided, however, that the Owner shall be obligated
to pay such fees or charges under such contracts. Sodak shall be afforded the
opportunity by HWCC to present a proposal for providing and/or financing gaming
related equipment and other furniture, fixtures and equipment for the Project
and HWCC agrees to consult with Sodak with respect to such proposal.
2. Place of Performance of Technical Services. It is anticipated that
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the Technical Services will be performed at HWCC's headquarters in Dallas, Texas
or otherwise in the United States. It is anticipated, however, in order to
perform certain aspects of the Technical Services, that HWCC personnel may
travel to the Project periodically during the Pre-Opening Period. During visits
to the Project, HWCC will perform inspections during construction as it
considers appropriate in order to determine whether the Project is being
constructed in accordance with the Standards and, upon substantial completion of
the Project, HWCC will participate in the final acceptance inspection of the
Project with other appropriate consultants and contractors, and will assist such
consultants and contractors in the preparation of a list of deficiencies that
require correction.
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3. Pre-Opening Period. As used herein, the term"Pre-Opening Period"
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shall mean the period commencing on the effective date hereof (the "Effective
Date") and continuing until the date of substantial completion of the Project
(including the installation of all equipment, accessories and supplies) to the
satisfaction of the Owner and HWCC (the "Project Completion Date").
4. Remuneration. As remuneration for services rendered by HWCC for the
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Owner as described herein, the Owner shall reimburse HWCC on a monthly basis for
all bona-fide expenses incurred by HWCC during the Pre-Opening Period as
enumerated and approved in the Pre-Opening Budget (as defined in the Management
Services Agreement of even date herewith between Owner and HWCC) or any other
budget provided by HWCC and approved by Owner (including, without limitation,
communication expenses, travel expenses (including transportation, lodging,
food, tips, business meals, etc.), office lease expenses, secretarial services,
and all other reasonable incidental expenses directly relating to the
performance of this Agreement) (collectively, the "Reimbursable Expenses");
provided, however, that all such expenses must be justified by the appropriate
records. The following shall not be included as Reimbursable Expenses: (i) any
loss which occurs and which would normally be covered by standard form fire and
extended coverage insurance if such loss is, in fact, recovered by HWCC through
its or the Owner's insurance carrier; (ii) salaries of officers of HWCC; and
(iii) administrative or general overhead expenses of HWCC's main office. Trade
discounts, rebates and refunds and returns from the sale of surplus materials
and equipment shall accrue to the Owner, and HWCC shall make provisions so that
they can be secured.
5. No Guaranty. It is specifically agreed that HWCC shall neither
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guarantee nor assume responsibility for prices, delivery dates, the supplies of
third parties, the quality of supplies, goods, equipment or services, budgets,
or completion dates or plans, and that HWCC is acting as agent of the Owner
hereunder to coordinate the work on the Project. However, HWCC shall use its
best efforts to obtain the best results for the Owner which may be feasible or
practical.
6. Termination. Unless earlier terminated according to the terms of the
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succeeding sentence, this Agreement shall remain in effect through the
expiration of the Pre-Opening Period. Notwithstanding any other provision of
this Agreement to the contrary, each party shall have the right to terminate
this Agreement on forty-five (45) days prior written notice to the other in the
event such other party shall cause, commit or suffer to exist with respect to:
(a) A material breach of this Agreement which is not cured within the
period of written notice thereof; or
(b) The institution of any statute, regulation, rule or ruling rendering
the conduct of gaming in the United States or at the Complex illegal.
7. Indemnification. The Owner shall indemnify and hold HWCC harmless
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with respect to any claim, demand, expense or litigation relating to or arising
from the provision of services hereunder (including labor claims) and for damage
to or destruction of property, or injury or death to persons which may relate to
or arise out of HWCC's rendering services under this Agreement, unless such
damage, destruction, injury or death is caused solely by the gross negligence or
willful
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misconduct of HWCC. The Owner and HWCC shall each name the other party, its
officers, directors, employees and agents, as a co-insured in any insurance
which the Owner may procure with respect to work on the Project and operation of
the Complex, and shall obtain a waiver of subrogation against the other party,
its officers, directors, employees and agents.
8. Notice of Non-Compliance. HWCC shall have the responsibility of
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notifying the Owner in writing within a reasonable time of any material
deficiencies or non-compliance of any third party of which HWCC becomes aware
with respect to the design, engineering and construction requirements and the
furniture, fixture and equipment installations of the Project, and HWCC shall
implement the Owner's directives with respect thereto.
9. Execution of Contracts by Owner. Except as provided in Paragraph 1(i)
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above, the Owner shall execute all contracts and agreements with third parties
relating to the performance by HWCC of its duties hereunder.
10. Storage. The Owner agrees, at its own expense, to provide adequate
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facilities and personnel as necessary for the temporary safe storage of
furniture, fixtures and equipment, and/or the receipt and installation thereof.
11. Assignments. Owner's consent shall not be required for HWCC to
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assign this Agreement to any entity in which Hollywood Casino Corporation, a
Delaware corporation, either directly or indirectly maintains a controlling
interest and such assignment shall serve to fully relieve and discharge HWCC
from any further duties or obligations pursuant to this Agreement. In addition,
Owner's consent shall not be required for HWCC to collaterally assign this
Agreement or its rights and interest in the operation of the Complex to any
entity as security for indebtedness. Except as hereinabove provided, neither
HWCC nor Owner shall assign this Agreement or in any manner sell, assign or
transfer its rights and interests in the Complex without the prior written
consent of the non-assigning party. It is understood and agreed that any consent
granted by the non-assigning party to any such assignment shall not be deemed a
waiver of the covenant herein contained against assignment in any subsequent
case. Subject to the provisions of this Agreement regarding and/or restricting
sale or assignments as set forth elsewhere in this Agreement, the terms,
provisions, covenants, undertakings, agreements, obligations and conditions of
this Agreement shall be binding upon and shall inure to the benefit of the
successors in interest and the assigns of the parties hereto with the same
effect as if mentioned in each instance where the party hereto is named or
referred to, except that no assignment, transfer pledge, mortgage, lease or
sublease by or through HWCC or by or through Owner, as the case may be, in
violation of the provision of this Agreement shall vest any rights in the
assignee, transferee, mortgagee, pledge, lessee, sublessee or occupant.
12. Agency. In taking any action pursuant to this Agreement, HWCC shall
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act only as the appointed agent or representative of the Owner; and nothing in
this Agreement shall be construed as creating a tenancy, partnership, joint
venture or any other relationship between the parties hereto, except that of
principal and agent. All debts and liabilities incurred by HWCC in the course of
performing its duties hereunder shall be the debts and obligations of the Owner
only, and HWCC shall not be liable therefor, except as specifically stated to
the contrary herein. All costs, expenses,
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obligations and liabilities hereunder shall be the sole and exclusive
responsibility and obligation of the Owner, except for those instances herein
where it is expressly and specifically stated that such item shall be for the
account of HWCC. It is understood that statements herein indicating that HWCC
shall "furnish," "provide" or otherwise supply, present or contribute items or
services hereunder shall not be interpreted or construed to mean that HWCC is
liable or responsible to fund or pay for such items or services, except in those
instances mentioned above.
13. Final Agreement. This Agreement and any attached exhibits, schedules
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or riders set forth all the promises, agreements, conditions and understandings
between the parties hereto with respect to the subject matter hereof. There are
no other oral or written promises, agreements, conditions or understandings
between them. Except as otherwise provided herein, no subsequent alteration,
amendment, change or addition to this Agreement shall be binding upon the
parties unless in writing and signed by them.
14. No Waiver. No delay or failure by any party to exercise any right
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under this Agreement, and no partial or single exercise thereof, shall
constitute a waiver of that or any other right unless otherwise expressly
provided herein.
15. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
16. Partial Invalidity. If any provision of this Agreement or the
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application hereof to any person or circumstances shall to any extent be held
void, unenforceable or invalid, then the remainder of this Agreement or the
application of such provision to persons or circumstances other than those as to
which it is held void, unenforceable or invalid shall not be affected thereby,
and each provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
17. Notices. All notices, requests, consents and other communications
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required or permitted under this Agreement shall be in writing and shall be: (a)
personally delivered; (b) transmitted by United States certified or registered
mail, postage prepaid, return receipt requested, or by commercial courier or
express service; or (c) transmitted by telecopier, telegraphic, telex or cable
communication to the party to whom such notice, request, consent or other
communication is being given at the address of such party set forth below, or at
such other address as any party may designate by written notice to the other
parties:
(i) If to the Owner, to it at:
Shreveport Paddlewheels, L.L.C.
New Orleans Paddlewheels, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx
Attention: Xxxxxx X. Xxxxxxx, Xx., Chief Executive Officer
Telecopier No. (000) 000-0000
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Sodak Louisiana, L.L.C.
0000 Xxxxx Xxxxxxx 00
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
Telecopier No. (000) 000-0000
HWCC-Louisiana, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: President
Telecopier No. (000) 000-0000
(ii) If to HWCC, to it at:
HWCC-Shreveport, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: President
All notices, requests, consents and other communications shall be effective
or deemed delivered upon (A) the date of receipt if delivered personally, (B)
the earlier to occur of the actual receipt thereof by the addressee or three (3)
days after the date of deposit if transmitted by mail or commercial courier or
express service or (C) the date of transmission with confirmed answerback if
transmitted by telecopier, telegraphic, telex or cable communication.
18. Attorneys' Fees. In any action or proceeding brought by any party
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against any other party under this Agreement, the prevailing party shall be
entitled to recover from the other party attorneys' fees, investigation costs,
and other legal expenses and court costs incurred by such party in such action
or proceeding as the court may find to be reasonable.
19. Governing Law. This Agreement shall be governed by the terms and
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provisions hereof and the internal laws of the State of Louisiana, as the same
may exist from time to time.
20. Time of the Essence. Time is and shall be of the essence of this
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Agreement and of each term and provision hereof.
21. Gender, etc. Unless the context otherwise requires, words of any
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gender used in this Agreement shall be held and construed to include any other
gender, and words in the singular shall be held and construed to include the
plural.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be duly
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executed by its duly authorized officers as of the day and year first above
written.
OWNER
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QNOV
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Chairman and President
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By: SODAK LOUISIANA, L.L.C.
By: /s/ XXXXX X. BLONTILOCK
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Name: Xxxxx X. Blontilock
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Title: Manager
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HWCC
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HWCC-SHREVEPORT, INC.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Chairman and President
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EXHIBIT "A"
LEGAL DESCRIPTION OF COMPLEX
[Map of Property]
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