EXHIBIT 10.9
SECOND AMENDED AND RESTATED
EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT
THIS SECOND AMENDED AND RESTATED EXCURSION BOAT SPONSORSHIP AND
OPERATIONS AGREEMENT (the "Agreement") is made and entered into as of the 18th
day of November, 2004, by and between Iowa West Racing Association (hereinafter
referred to as "Iowa West"), an Iowa nonprofit corporation, and Ameristar Casino
Council Bluffs, Inc. (hereinafter referred to as "Ameristar"), an Iowa
corporation.
WHEREAS, on October 7, 2002, Iowa West and Ameristar entered into that
certain Amended and Restated Excursion Boat Sponsorship and Operations Agreement
(the "Existing Agreement"), which became effective on January 1, 2003 extends
through March 31, 2010; and
WHEREAS, Iowa West desires to amend the Existing Agreement and the
parties have since come to a mutual agreement for the amendment of the Existing
Agreement on the terms set forth herein;
WHEREAS, paragraph 14 of the Existing Agreement requires that any
amendment to or modification of the Existing Agreement would only be effective
if it is in writing and signed by both parties, and, if required, approved by
the Iowa Racing and Gaming Commission (the "Commission"); and
WHEREAS, the parties do now wish to amend and restate in its entirety
the Existing Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby mutually agreed as
follows:
1. LICENSE APPLICATION. Iowa West shall, each year, or as otherwise
required, promptly and timely apply to the Commission pursuant to Chapter 99F of
the Iowa Code as a sponsor for a license to conduct gambling games. Ameristar
shall, each year, or as otherwise required, promptly and timely apply to the
Commission for a license to operate an excursion gambling boat under Chapter 99F
of the Iowa Code.
2. CONDITIONS PRECEDENT TO AGREEMENT. This Agreement shall be effective
only upon the approval of this Agreement by the Commission. The parties shall
coordinate their efforts and cooperate with one another to seek this approval as
expeditiously as possible.
3. NON-ASSIGNABILITY OF LICENSES. Neither party may assign any of its
rights, duties or obligations under any license issued by the Commission without
the prior approval of the Commission.
4. LICENSE AGREEMENT AND OPERATION FEE.
(a) During the term of this Agreement, Ameristar shall pay to
Iowa West an operation fee determined in accordance with the following schedule:
(i) A fee of five percent (5%) of the Adjusted Gross
Receipts generated by the Ameristar excursion gambling boat
shall be applicable to the first Thirty Million Dollars
($30,000,000) of Adjusted Gross Receipts generated by the
Ameristar excursion gambling boat each calendar year;
(ii) A fee of four percent (4%) of the Adjusted Gross
Receipts generated by the Ameristar excursion gambling boat
shall be applicable to such Adjusted Gross Receipts in excess of
Thirty Million Dollars ($30,000,000) up to and including Sixty
Million Dollars ($60,000,000) each calendar year;
(iii) A fee of three percent (3%) of the Adjusted Gross
Receipts generated by the Ameristar excursion gambling boat
shall be applicable to such Adjusted Gross Receipts in excess of
Sixty Million Dollars ($60,000,000) up to and including Ninety
Million Dollars ($90,000,000) each calendar year;
(iv) A fee of two percent (2%) of the Adjusted Gross
Receipts generated by the Ameristar excursion gambling boat
shall be applicable to such Adjusted Gross Receipts in excess of
Ninety Million Dollars ($90,000,000) up to and including One
Hundred Twenty Million Dollars ($120,000,000) each calendar
year; and
(v) A fee of one-half of one percent (0.5%) of the
Adjusted Gross Receipts generated by the Ameristar excursion
gambling boat shall be applicable to such Adjusted Gross
Receipts in excess of One Hundred Twenty Million Dollars
($120,000,000) up to and including One Hundred Fifty Million
Dollars ($150,000,000) each calendar year.
No fee shall be payable with respect to any Adjusted Gross Receipts generated by
the Ameristar excursion gambling boat in excess of One Hundred Fifty Million
Dollars ($150,000,000) each calendar year. The operation fee shall be paid
monthly on or before the 10th day of the month following the month in which the
Adjusted Gross Receipts were generated upon which such operation fee is based.
As used herein, the term "Adjusted Gross Receipts" shall have the same meaning
as set forth in Section 99F.1(1) of the Iowa Code.
(b) Ameristar shall be solely responsible for the payment of all
admission fees owing to the state and local governments under Section 99F.10 of
the Iowa Code or any succeeding provision, including admission fees relating to
passengers with complimentary passes. The parties agree that the fees set forth
above are the only sums to which Iowa West is entitled under this Agreement
(other than amounts payable pursuant to the indemnification provision set forth
herein), and all such fees paid to Iowa West are deemed and agreed to be subject
to the restrictions imposed by Section 99F.6(4)(a) of the Iowa Code or any
succeeding provision.
(c) Ameristar shall pay to the Commission all the wagering taxes
imposed by Section 99F.11 of the Iowa Code or any succeeding provision.
(d) Ameristar shall indemnify and hold Iowa West harmless from
any and all claims relating to all sums due for admission fees owing to any
government entity under Section 99F.10 of the Iowa Code or any succeeding
provision, all income or excise taxes
-2-
owed to the United States or any state government, and all wagering taxes owing
to the State of Iowa under Section 99F.11 of the Iowa Code or any succeeding
provision; provided, however, that Ameristar shall have no liability or
obligation to indemnify or hold Iowa West harmless from any tax liability Iowa
West may incur with respect to the monies paid to Iowa West by Ameristar.
5. LICENSE APPLICATION FEES AND ATTORNEYS FEES. Each party hereto shall
be responsible for its own license fees and expenses in connection with the
approval and performance of this Agreement, and any application fee required in
connection therewith, including DCI investigation fees, and its own attorneys
fees in connection with this Agreement and the license applications contemplated
hereby.
6. IOWA WEST ORGANIZATIONAL AND GOVERNANCE REQUIREMENTS.
(a) Representations of Iowa West. Iowa West represents and
warrants to Ameristar that as of the date of this Agreement: each of Iowa West
and the Foundation (defined below) is a nonprofit corporation organized,
existing and in good standing under the laws of the State of Iowa; the articles
of incorporation of each of Iowa West and the Foundation respectively authorize
individual members of each such corporation who are organized as a Council of
Members (the "Council of Members" or the "Council") (individual members of the
Council of Members are referred to as "Council Members"), and who are members of
each of Iowa West and the Foundation; and the initial Council Members shall
consist of those persons who were members of the board of directors of Iowa
Wescorp Association, an Iowa nonprofit corporation, immediately prior to the
establishment of the Council of Members.
(b) Covenants of Iowa West. At all times during the term of this
Agreement following the Effective Date (as defined below), Iowa West agrees
that:
(i) Grant Committee. Iowa West Foundation, an Iowa
nonprofit corporation (the "Foundation") shall permit each
operator of an excursion gambling boat or land-based gaming
facility for which Iowa West or an affiliate serves as the
qualified sponsoring organization (each, a "Sponsored Gaming
Entity") to appoint one (1) representative to the Foundation's
Grant Committee (being an advisory committee to the board of
directors of the Foundation); provided, however, that each
person so appointed must, at the time of appointment, have
obtained the age of majority, must be a permanent legal resident
of Pottawattamie County, Iowa (the "County"), and must be
knowledgeable in matters concerning the City of Council Bluffs,
Iowa (the "City") and the County and the tax exempt purposes of
the Foundation. All such appointees must maintain continuing
permanent residency in the County in order to be eligible to
continue to serve on such Committee. The Foundation may refuse
to seat any such appointee who, based upon the reasonable and
good faith determination of the Foundation Board, does not meet
such requirements and any such appointee who is seated may be
removed from the Committee if such residency is not maintained.
If such appointee is not seated or is removed, the Sponsored
Gaming Entity that appointed such unqualified or removed
appointee shall have the right to designate a qualified
replacement. The Foundation's Grant Committee shall consist of
the number of representatives named by the Sponsored Gaming
Entities, plus those persons then serving as Council Members.
-3-
(ii) Council of Members.
(A) The Council of Members shall initially consist
of seventeen (17) members, each of whom were members of the
board of directors of Iowa Wescorp Association immediately prior
to the establishment of the Council of Members. Once a majority
of the Council of Members are Nominated Council Members (as
defined below), the Foundation and Iowa West may amend their
bylaws to reduce the number of Council Members as and to the
extent it deems such reduction appropriate, provided that: (1)
after such reduction, the Council of Members shall continue to
satisfy the requirement that a majority of its members be
Nominated Council Members; and (2) the Council of Members shall
not be reduced below eleven (11) members.
(B) Subject to Section 6(b)(ii)(C) and until the
expiration or termination of this Agreement, selection of each
member of the Council of Members (including the re-election of
sitting members eligible for re-election) shall be made from a
pool of nominees (the "Nominated Pool") which will consist of:
(1) in the case of any Council Member position
for which a sitting Council Member is eligible for
re-election and desires to be re-elected, the sitting
Council Member, and
(2) a minimum of three nominees for each Council
Member seat subject to election (or more nominees, if
requested by the Council of Members), each of whom has
first been nominated by a Nominating Body (which
nominees may include sitting Council Members eligible
for re-election). Thus, if there are four Council Member
seats subject to election, there would be a minimum of
twelve total nominees nominated by the Nominating
Bodies.
It is understood that nominations are not specific to any
particular seat on the Council of Members in question. Any member of
the Nominated Pool may be elected to any seat on the Council of
Members. As used herein, the term "Nominating Body" or "Nominating
Bodies" shall include the City Council of the City, the Board of
Supervisors of the County, the board of directors of the Council Bluffs
Chamber of Commerce, the Board of Education of the Council Bluffs
Community School District, and such other governmental entities, civic
and nonprofit organizations generally representative of the broad-based
constituencies within the greater Council Bluffs/Pottawattamie County,
Iowa community, if any, as may be selected from time to time by the
Council of Members (it being understood and agreed that any nonprofit
entity selected as a Nominating Body shall be an established nonprofit
organization with broad-based community representation). Persons
nominated by a Nominating Body who are selected as members of the
Council of Members (whether or not they are sitting Council Members
eligible for re-election) are hereinafter referred to as "Nominated
Council Members." Any sitting Council Member who is nominated for
re-election by a Nominating Body and is re-elected to the Council of
Members shall, from and after such election and continuing for so long
as such Council Member thereafter serves on the Council of Members, be
considered a Nominated Council Member, notwithstanding the fact that
such Council Member was not a Nominated Council Member prior thereto.
All nominees
-4-
must meet the minimum eligibility requirements for Council membership
set forth in subparagraph 6(b)(ii)(D)(1) - (6). In the event that the
Council of Members or its Nominating Committee reasonably and in good
faith determines that any nominee nominated by a Nominating Body fails
to meet such requirements, the Nominating Body which nominated such
nominee may be asked to name a replacement nominee upon the request of
the Council. In the event that the Nominating Bodies shall fail or
refuse to nominate the number of nominees required under subparagraph
6(b)(ii)(B) above, such failure shall not disqualify the remaining
nominees named by such Nominating Bodies; provided, that the Council or
its Nominating Committee may, at their option, request the Nominating
Bodies to provide additional nominees to fill the pool of candidates to
the required number.
(C) As of the effective date of this Agreement, the
Council of Members shall include not less than five (5)
Nominated Council Members. Not later than February 1, 2005, the
Council of Members shall include not less than seven (7)
Nominated Council Members. Not later than February 1, 2007, and
throughout the remaining term of this Agreement, a majority of
the Council Members shall be Nominated Council Members.
(D) It is understood and agreed that:
(1) The pool of nominees named by the Nominating
Bodies shall represent a diverse range of interests and
points of view within the greater Council
Bluffs/Pottawattamie County, Iowa community.
(2) The actual selection and terms of service of
Council Members shall be governed by the Operating
Procedures of the Council.
(3) Each nominee shall be a permanent legal
resident of the County, shall be of legal age, shall be
generally familiar with matters concerning the City, the
County and the purposes of Iowa West and the Foundation,
shall be capable, in the reasonable and good faith
judgment of the Council, of performing the duties of a
Council Member, and shall meet such other uniformly
applicable eligibility requirements as may be
established pursuant to the Operating Procedures of the
Council.
(4) No nominee shall be an officer or elected
official of any of the Nominating Bodies, or an
employee, officer, or elected official of any Sponsored
Gaming Entity, any formally-organized special interest
group or any formally-organized lobbying group;
provided, however, that an employee, officer or elected
official of such a special interest group or lobbying
group shall be disqualified from the pool of nominees
only if the Council reasonably and in good faith
determines that such nominee's role in or for such group
involves an actual or potential conflict of interest
with the purposes of Iowa West or the Foundation, or the
broad interests of the greater Council
Bluffs/Pottawattamie County, Iowa community.
(5) Each nominee, if selected, shall agree that
he or she will be acting as a Council Member in his or
her capacity as a citizen of
-5-
the community and will not be acting as a representative
of the Nominating Body or Nominating Bodies by whom he
or she was nominated or of any other group or
organization.
(6) Each nominee shall agree to submit to such
investigations as may be required in connection with any
license, findings of suitability or other approval
required of Iowa West, in each case as may be required
under applicable provisions of the Iowa Code or the
rules and regulations of the Commission or the Iowa
Department of Public Safety (or its Division of Criminal
Investigation) in connection with such nominee's service
on the Council of Members or the board of directors of
either Iowa West or the Foundation, and any person who
fails to satisfy these requirements shall be removed
from the pool of nominees.
(7) At no time from the date of this Agreement
throughout the term of this Agreement shall the Council
of Members, Iowa West, or the Foundation materially
amend in any substantive manner, without the prior
written consent of Ameristar or as otherwise permitted
by this Agreement: (A) Article II, Section 1 of the
Operating Procedures as it relates to the length of
terms of Council Members; (B) Article II, Section 3 of
the Operating Procedures as it relates to limitations on
terms of service of Council Members; (C) Article VI,
Section 1 of the Operating Procedures as it relates to
the required quorum for actions of the Council Members;
(D) Article II, Section 4 of the Operating Procedures as
it relates to the removal of Council Members, (E)
Article II, Section 3 of the Operating Procedures
relating to the establishment of eligibility
requirements for Council Members, (F) Article II of the
Bylaws of Iowa West, or (G) Article II of the Bylaws of
the Foundation. Iowa West represents and warrants that
true, correct and complete copies of each of such
provisions have been given to Ameristar prior to its
execution of this Agreement.
(8) At no time throughout the term of this
Agreement shall the Foundation: have any members other
than Council Members; or amend its articles of
incorporation or bylaws or adopt any resolution to
provide for any members of the Foundation other than the
Council Members, in each case without the prior written
consent of Ameristar or as otherwise may be permitted by
this Agreement.
(9) At no time throughout the term of this
Agreement shall Iowa West: have any members other than
Council Members; or amend its articles of incorporation
or bylaws or adopt any resolution to provide for any
member of Iowa West other than the Council Members, in
each case without the prior written consent of Ameristar
or as otherwise may be permitted by this Agreement.
(iii) Iowa West and Foundation Boards of Directors.
Throughout the term of this Agreement, the boards of directors
of the Foundation and Iowa West, respectively, shall consist of
nine (9) members each selected from among the Council Members.
Overlap between members of the two boards shall be minimized to
the extent numerically possible (e.g., when the Council of
Members consists of
-6-
seventeen (17) members and each of the Foundation and Iowa West
boards consist of nine (9) members, the two boards shall have
only one common board member). In the event that the number of
Council Members is reduced as provided in paragraph 6(b)(ii)(A)
hereof, the number of members of the Iowa West and Foundation
boards may also be reduced to a number not less than one-half of
the number of members of the reduced Council of Members;
provided that at all times after the reduction of the size of
the Council of Members, the number of Council Members serving on
both the Iowa West and Foundation boards shall continue to be
minimized to the extent numerically possible. The number of
Nominated Council Members serving on each of the boards of Iowa
West and the Foundation shall, to the extent numerically
possible, be proportionate to the representation of the
Nominated Council Members on the Council of Members; provided,
however, that this requirement shall not require any common
member of both the Iowa West and the Foundation boards to be a
Nominated Council Member.
(iv) Public Relations Committee. Iowa West shall
create a Public Relations Committee whose membership shall
consist of:
(A) One (1) member appointed by each Sponsored
Gaming Entity;
(B) One (1) member appointed by Iowa West; and
(C) Two (2) "at-large" members selected and
approved by the President of Iowa West from nominees
representative of the public to be named by each of the
Sponsored Gaming Entities.
The purpose of the Public Relations Committee shall be to advise the
board of directors of Iowa West with respect to public relations
activities and affairs; provided, that the ultimate authority for
making decisions with respect to such matters shall reside in the board
of directors. The Public Relations Committee shall meet not less
frequently than quarterly and may submit written reports and
recommendations to the Iowa West board. The member appointed by Iowa
West shall serve as a liaison to the Iowa West board, and shall make
oral reports to the Iowa West board from time to time as requested by
the Public Relations Committee. The Public Relations Committee shall
have the opportunity to meet with the Iowa West board not less
frequently than once per calendar year.
(v) Delegation. Each of the Council of Members, the
board of directors of Iowa West and the board of directors of the
Foundation may delegate any of its respective authority to a committee
of its members or directors; provided that such delegation is approved
by not less than two-thirds of the authorized and appointed Council
Members or directors of such entity; and provided further that the
following authority may not be delegated: the authority of the Council
of Members to appoint the directors of Iowa West or the Foundation or
the members of the Foundation's Grant Committee, or the authority
otherwise to exercise any rights of the Council of Members acting in
its capacity as the members of either Iowa West or the Foundation. The
number of Nominated Council Members serving on any such committee shall
be proportionate, to the extent numerically possible, to the
representation of the Nominated Council Members on the Council of
Members.
-7-
(vi) Inspection Rights. Iowa West and the Foundation
shall make their corporate records, including organizational documents
and minutes and written consents, available for inspection by Ameristar
or its counsel from time to time (but no more frequently than annually)
upon reasonable advance written notice from Ameristar solely for the
purpose of allowing Ameristar to determine compliance with the
provisions of this paragraph 6. Ameristar agrees that any such
inspection shall be on a strictly confidential basis; provided,
however, that such obligation of confidentiality shall not limit or
restrict the exercise by Ameristar of its rights under paragraph 6(c).
Ameristar agrees that any such inspection shall, if requested by Iowa
West, be conducted in the presence of a representative or
representatives of Iowa West.
(c) Default and Remedy. If there shall be any failure to comply with any
of the requirements of paragraph 6(b), Ameristar may give written notice to Iowa
West specifying with particularity the failure or failures to comply. If all
such specified failures are not remedied within sixty (60) days following the
giving of such notice, Ameristar may suspend making one-half of the amount of
each payment to Iowa West or its assignee under paragraph 4 of this Agreement
and instead shall deposit the amount of such suspended and withheld payments in
a segregated interest-bearing escrow account at the branch of a national or
state chartered bank located in the County, until such time as all such failures
have been remedied or the termination of this Agreement (it being understood
that the remaining one-half of such fees shall continue to be due and payable to
Iowa West as provided herein). If all such failures are cured prior to the
giving by Ameristar of a notice of termination (as provided for below), such
escrowed funds, together with all interest earned thereon, shall be released to
Iowa West or its assignee. If all such specified failures are not remedied
within ninety (90) days following the giving of such notice, Ameristar may give
a written notice of termination of this Agreement to Iowa West, which
termination shall be effective on the last day of the sixth (6th) month
following the giving of the notice of termination or, if Iowa West disputes the
termination as provided below, the termination shall be effective on the last
day of the sixth (6th) month following the final determination by a court of
competent jurisdiction of Ameristar's right to terminate this Agreement. In the
event of such a termination of this Agreement while such funds are held in
escrow, all escrowed funds, together with all interest earned thereon, shall be
paid to the successor qualified sponsoring organization for Ameristar's
excursion gambling boat. If Iowa West disputes Ameristar's right to terminate
this Agreement under this paragraph and a court of competent jurisdiction
finally determines that Ameristar does not have a right to terminate this
Agreement under this paragraph, this Agreement shall continue in full force and
effect and all escrowed funds, together with all interest earned thereon, shall
be released to Iowa West or its assignee. In the event of such a dispute, Iowa
West agrees to assert its claim within thirty (30) days following its receipt of
the notice of termination from Ameristar, and both parties agree to seek a trial
date within ninety (90) days of the assertion of Iowa West's dispute. As used in
this Agreement, a determination by a court shall not become final until the
exhaustion or waiver by the losing party of all rights of appeal.
7. TERM OF AGREEMENT.
(a) This Agreement shall become effective ten days after approval
of this Agreement by the Iowa Racing and Gaming Commission (the "Effective
Date") and shall terminate at 11:59:59 p.m. on March 31, 2010. Notwithstanding
the foregoing, if the Commission changes its current practice of issuing
licenses for a one-year period from
-8-
April 1 of a given year to March 31 of the following year, the parties shall
amend this Agreement to provide for the expiration of this Agreement
concurrently with the expiration date of the licenses issued to Iowa West and
Ameristar for the Ameristar excursion gambling boat that is closest in time to
the otherwise scheduled expiration date of this Agreement. Until the Effective
Date, the rights and obligations of the parties to each other shall be governed
exclusively by the Existing Agreement.
(b) Ameristar may terminate this Agreement upon six (6) months'
prior written notice to Iowa West if Iowa law is amended to no longer require
excursion gambling boats to operate under the sponsorship of a qualified
sponsoring organization.
(c) Iowa West agrees and acknowledges that, upon the termination
of this Agreement for any reason, whether upon the expiration without renewal of
this Agreement or otherwise, Iowa West shall, upon the written request of
Ameristar, surrender to the Commission (and all other government entities, if
any) all licenses issued by the Commission as contemplated by paragraph 1 (and
all other licenses permits and other approvals issued under the relevant
provisions of the Iowa Code to Iowa West to serve as the qualified sponsoring
organization for the Ameristar excursion gambling boat), which licenses, permits
or other approvals, if any, may be reissued to another qualified sponsoring
organization without any compensation to Iowa West from Ameristar, the State of
Iowa or any other person or entity, except for the compensation from Ameristar
expressly provided for in this Agreement. Nothing in this Agreement shall
prohibit or restrict Ameristar from entering into an agreement with another
qualified sponsoring organization for the sponsorship of the operations of the
Ameristar gambling excursion boat effective upon the expiration or termination
of this Agreement for any reason. Notwithstanding the foregoing, Iowa West shall
not be required to take any action or surrender any license, permit or other
approval to the extent that the failure to do so does not interfere with
Ameristar's continuing operation of its excursion gambling boat under the
relevant provisions of the Iowa Code.
(d) In the event that this Agreement terminates or expires at a
time at which Ameristar would be forced to cease the operation of its excursion
gambling boat because it is not able immediately thereafter to operate its
excursion gambling boat under the license and sponsorship of another qualified
sponsoring organization, Ameristar shall have the option to extend the term of
this Agreement on a month-to-month basis for up to six (6) additional months
(provided, however, that Ameristar shall pay all costs associated with such
extension, including, without limitation, Iowa West's reasonable attorneys'
fees, together with all fees and costs associated with the extension or renewal
of Iowa West's license, if necessary). If Ameristar desires to exercise this
option, it shall give written notice to Iowa West at least ten (10) days prior
to the otherwise scheduled expiration or termination date. If Ameristar
exercises this option, it thereafter may terminate this Agreement as of the end
of any subsequent calendar month on not less than five (5) days prior written
notice to Iowa West.
8. HOLD HARMLESS AND INSURANCE REQUIREMENTS. During the term of this
Agreement, Ameristar shall indemnify, defend and hold harmless Iowa West, Iowa
Wescorp Association, the Foundation, and its and their officers, directors,
members, employees, and agents, from and against any and all liabilities,
obligations, claims damages, causes of action, cost and expenses imposed upon,
incurred by, or asserted against them by reason of all operations, whether
insurable or not, for any accident, injury to or death of persons, or loss of or
damage to property occurring on the excursion gambling
-9-
boat. Ameristar further covenants and agrees that it will at its own expense
procure comprehensive public liability insurance insuring both Ameristar and
Iowa West in an amount not less than $5,000,000.00 single limit, subject to
commercially reasonable deductibles or self-insured retentions. Said liability
insurance policy shall apply with respect to all operations and functions of the
excursion gambling boat that are insurable on a commercially reasonable basis. A
copy of policies of insurance protecting the interests of Iowa West shall be
forwarded directly to Iowa West. The obligation of Ameristar to indemnify,
defend, and hold harmless Iowa Wescorp Association shall terminate with respect
to any acts or omissions occurring after the effective date of this Agreement.
9. NON-EXCLUSIVITY. It is understood that Iowa West has entered into or
may enter into sponsorship agreements with other parties for the conduct of
gambling games. Iowa West has provided a true, complete and correct copy to
Ameristar of each such agreement as in force on the date of this Agreement.
Ameristar agrees to consider all information therein as confidential, except to
the extent such information is otherwise publicly available or is required to be
made public in order to enforce Ameristar's rights hereunder. Iowa West further
agrees that in the event it agrees to any amendment or modification of the
material economic terms of the existing sponsorship agreement (the "Existing
Harveys Agreement") with Harveys Iowa Management, Inc. or an affiliate thereof
or any assignee thereof or an affiliate of any assignee thereof ("Harveys")
prior to the expiration or termination thereof in a manner that is more
beneficial to Harveys than the corresponding provisions of this Agreement, Iowa
West shall notify Ameristar in writing of such amendment or modification (which
notice shall include a copy of the amendment or modification). Ameristar shall
have a period of thirty (30) days after receipt of such notice in which to elect
to enter into the same amendment or modification with respect to the
corresponding terms of this Agreement. Ameristar's election shall be exercised
by written notice delivered to Iowa West and received by Iowa West within such
thirty-day period. As used herein, the "material economic terms" of the Existing
Harveys Agreement shall be deemed to be the provisions regarding the amount or
rate of fees payable by Harveys to Iowa West (whether denominated as operating
fees or otherwise) and the provisions regarding the term of the Existing Harveys
Agreement. If during the term of this Agreement the Commission determines that
the Pottawattamie County area is not able to support two excursion gambling
boats and one land-based gambling operation at Bluffs Run Greyhound Park (or
another location), Iowa West agrees that it will adopt a position of complete
neutrality with respect to which operations should be licensed under the
sponsorship of Iowa West. Iowa West hereby represents and warrants that the
Existing Harveys Agreement will be amended to include provisions substantially
similar to those reflected in this Agreement, and that such agreement as so
amended does not provide for more beneficial material economic terms than those
provided in this Agreement.
10. IOWA WEST GAMING LICENSES/FINDINGS OF SUITABILITY IN OTHER
JURISDICTIONS. Iowa West acknowledges that Ameristar's parent company and other
current and future affiliates ("Ameristar Affiliates") possess and may obtain
additional privileged gaming licenses, findings of suitability and other
approvals (collectively, "Licenses") in various states in addition to the State
of Iowa. Pursuant to such Licenses, the Ameristar Affiliates are and will be
subject to statutes, regulations and investigative powers of agencies having
jurisdiction over gaming activities (the "Gaming Authorities"). The Ameristar
Affiliates from time to time may be required by the Gaming Authorities to report
and obtain approvals for this Agreement and the relationship of Ameristar with
Iowa West. Additionally, the Gaming Authorities are permitted to investigate
transactions in which
-10-
Ameristar and the Ameristar Affiliates are engaged and may call Iowa West and
one or more of its affiliates forward for licensing, findings of suitability
and/or such other approvals as may be required by the Gaming Authorities. Iowa
West agrees to cooperate as reasonably requested in connection with any
investigation or other request by Gaming Authorities relating to such required
licenses, findings of suitability and other approvals; provided, however, that
Ameristar agrees to pay all reasonable costs and expenses in connection with any
such investigation or request. Notwithstanding the foregoing, Ameristar shall
not be obligated to pay the costs and expenses of any investigation or other
request made by the Commission, except to the extent that such investigation or
request is due to the acts or omissions of Ameristar.
11. ASSIGNABILITY.
(a) Iowa West shall not have the right, power or authority to
assign all or any portion of this Agreement or its rights hereunder or to
delegate any duties or obligations arising under this Agreement voluntarily,
involuntarily or by operation of law, without Ameristar's prior written consent.
(b) Ameristar shall have the right, power and authority to assign
all or any portion of this Agreement or its rights hereunder or to delegate any
duties or obligations arising under this Agreement, voluntarily, involuntarily
or by operation of law, and without Iowa West's consent to any successor
operator of Ameristar's excursion gambling boat or to any financial institution
extending credit to Ameristar in the ordinary course of business, subject only
to Commission or other governmental approval, if required.
(c) Notwithstanding anything herein to the contrary, both parties
hereto expressly acknowledge that Iowa West may assign its rights to receive
payments hereunder to any affiliate of Iowa West, subject only to Commission
approval, if required; provided, however, that Iowa West shall remain liable for
all obligations imposed upon it under this Agreement.
12. AMENDMENT. This Agreement may be amended or modified at any time,
but only by a writing signed by both parties and, if required, approved by the
Commission.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Iowa and the rules and regulations of the Commission, and each party
shall be responsible for its own compliance with all laws of the State of Iowa
and the rules of the Commission.
14. REPORTS, ACCOUNTING AND AUDITING.
(a) Iowa West and Ameristar shall prepare and file all reports,
including financial reports, as required of each such party, respectively, by
Iowa law and the rules and regulations of the Commission. In addition, each
party shall keep such books and records and have audits performed as required of
it, respectively, by Iowa law and the Commission. Each party shall be
responsible for providing at its own expense all audit and accounting services
for any reports and audits required by the Commission.
(b) Each party agrees that the Commission and the other party to
this Agreement shall have the right to audit such party's records to the extent
necessary to
-11-
provide verification of compliance under this Agreement. In the event the
Commission or either party determines that a party is not in compliance with the
terms of this Agreement, then in addition to all other remedies provided for by
law, each party shall have the right to specifically enforce the terms and
provisions of this Agreement. As between the parties to this Agreement, the
party requesting such audit shall provide reasonable advance notice in writing
of such request, and such audit shall be conducted at reasonable times and in
the presence of a representative of the party being audited.
15. DEFAULT.
(a) The occurrence of any one or more of the following events
shall constitute a default by a party hereunder:
(i) Failure of the party to perform or comply in any
material respect with any of the material duties and obligations imposed
upon said party under the terms of this Agreement.
(ii) The suspension or revocation of the party's license
under Chapter 99F of the Iowa Code by the State of Iowa or the
Commission.
(iii) (A) If a party shall generally not pay its debts as
they become due, or shall admit in writing its inability to pay its
debts, or shall make a general assignment for the benefit of creditors;
(B) if a party shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official
or representative for it or for all or any substantial part of its
property; (C) if a party shall take any corporate or other action to
authorize any of the actions set forth in clause (A) or (B) above; or
(D) if any case, proceeding or other action against a party is commenced
seeking to have an order for relief entered against it as a debtor, or
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official
or representative for it or for all or any substantial part of its
property, and such case, proceeding or action (x) results in the entry
of an order for relief against it which is not fully stayed within
thirty (30) days after the entry thereof or (y) remains undismissed for
a period of ninety (90) or more consecutive days.
(b) Except as otherwise provided in this paragraph 15, (x) if one
of the acts of default described in clauses (a)(i) and (ii) occurs and is not
remedied by the defaulting party within thirty (30) days after the giving of
written notice by the non-defaulting party of said default or (y) if one of the
acts of default described in clause (a)(iii) occurs, then the non-defaulting
party shall have the right to terminate this Agreement in addition to all rights
and remedies provided at law or in equity, including without limitation specific
performance or injunctive relief.
(c) If a default by Iowa West occurs that results in the
suspension of gambling on the Ameristar excursion gambling boat or the
suspension or revocation of any License held by any Ameristar Affiliate, and
such suspension would not have been ordered
-12-
but for the default by Iowa West hereunder, Ameristar will have available to it
immediately the right to terminate this Agreement in addition to all rights and
remedies provided at law or in equity, including without limitation specific
performance or injunctive relief. Notwithstanding any provision hereof to the
contrary, Ameristar shall not be required to submit to non-binding mediation
prior to exercising its right of termination under this clause (c).
(d) Notwithstanding any other provision of this Agreement to the
contrary, paragraph 6(c) sets forth the exclusive remedy of Ameristar in the
event of a default under paragraph 6(b).
(e) Except as otherwise provided herein, the remedies of the
non-defaulting party shall be cumulative, and the exercise of any one or more
remedies shall not be construed as a waiver of any other remedies. Further, no
course of dealing between the parties or failure on the part of a non-defaulting
party to exercise any right or remedy shall operate as a waiver of such right to
claim a default in the future.
16. NON-BINDING MEDIATION OF DISPUTES. Each party agrees to enter into
non-binding mediation at the request of the other with respect to any dispute
arising under this Agreement upon the giving by Ameristar of a notice of
non-compliance under paragraph 6(c) or upon the giving of a notice of default by
a party under paragraph 15(a)(i). In the case of mediation of a dispute under
paragraph 6(c), Ameristar shall not be required to engage in mediation for more
than forty-five (45) days following the giving by Ameristar of the notice of
non-compliance under paragraph 6(c), and in the case of mediation of a dispute
under paragraph 15(a)(i), the party that gives the notice of default shall not
be obligated to engage in mediation for more than thirty (30) days following its
giving of notice of default. Any such mediation shall be conducted on a
confidential basis with a single mediator selected by the mutual agreement of
the parties, or by the American Arbitration Association if the parties are
unable to agree upon a mediator.
17. MISCELLANEOUS PROVISIONs.
(a) Notices. All notices, request, demands and other
communications hereunder shall be deemed to have been given if delivered in
person or if sent by certified mail, postage prepaid, or by fax, or by reputable
overnight courier service, to the other party at the following addresses:
To Iowa West: Iowa West Racing Association
Attention: Executive Director
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, Xxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
-13-
With duplicate to: P. Xxxxx Xxx
Baird, Holm, McEachen, Pedersen, Hamann &
Xxxxxxxxx, LLP
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
To Ameristar: Ameristar Casino Council Bluffs, Inc.
c/o Ameristar Casinos, Inc.
Attention: President and CEO
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 X
Xxx Xxxxx, Xxxxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
or to such other address or such other person as a party shall have last
designated by notice to the other party. All notices shall be deemed to be given
when received. All notices given by fax shall be confirmed by the delivery of a
copy thereof by another permitted means of delivery, provided that such notice
shall be deemed to have been given when received by fax.
(b) Relationship of Parties. Nothing in this Agreement shall be
construed to create a partnership between the parties, a relationship of
employer and employee between the parties, or a relationship of principal and
agent between the parties.
(c) Authorization. Each party represents and warrants to the
other that this Agreement has been duly authorized on its behalf and that this
Agreement is the valid, binding and enforceable agreement of such party.
(d) Nonprofit and Tax Exempt Status. Notwithstanding any
provision of this Agreement to the contrary, it is understood and agreed that
if, in the opinion of counsel to Iowa West (such counsel to be competent in
matters concerning tax-exempt organizations and related matters), any change in
law or regulation (whether by statute, regulation, judicial ruling,
administrative ruling or otherwise) enacted, adopted or promulgated following
the date of this Agreement prohibits or restricts the ability of Iowa West or
the Foundation to (i) comply with any of its obligations under paragraph 6(b)
and (ii) satisfy applicable requirements for the maintenance of its status as
(A) an Iowa nonprofit corporation, and (B) in the case of the Foundation, a
corporation which is exempt from federal income taxation as an organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"), then the parties shall meet and confer in good faith to consider
amending this Agreement to preserve the status of Iowa West and the Foundation
while at the same time materially maintaining the protections provided for in
paragraph 6(b). If both such objectives cannot be achieved through a mutually
acceptable amendment, then Iowa West and the Foundation shall not be required to
comply with paragraph 6(b) to the extent necessary to maintain their respective
statuses described above, but Ameristar may, at its option, terminate this
Agreement on not less than six (6) months written notice to Iowa West. If
requested by Ameristar, the opinion
-14-
of counsel to Iowa West shall be a written opinion addressed jointly to Iowa
West and Ameristar.
(e) Successors and Assigns. This Agreement, and all of the
obligations, duties and rights of the parties hereunder shall inure to and be
binding upon the heirs, successors and permitted assigns of the parties.
(f) Complete Agreement. Subject to the last sentence of paragraph
7(a) of this Agreement, this Agreement embodies the entire agreement between the
parties and supersedes all prior oral and written proposals and communications.
(g) Counterparts. This Agreement may be executed in multiple
counterparts, and if so executed, each such counterpart is deemed an original
for all purposes, and all such counterparts shall collectively constitute one
agreement.
(h) Time is of the Essence. Time is of the essence in the
performance of this Agreement and each and every provision contained herein.
(i) Construction. This Agreement shall be construed to comply
with all applicable Iowa laws, Commission rules and regulations relating to
excursion boat gambling, and may be amended from time to time in order to comply
with such laws, Commission rules and regulations; provided, however, that no
such amendment shall materially and adversely affect the rights and obligations
of a party without such party's written consent.
(j) Headings. Paragraph headings herein are for reference
purposes only.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written at Council Bluffs, Iowa.
IOWA WEST RACING ASSOCIATION AMERISTAR CASINO COUNCIL BLUFFS, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ -------------------------------------
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxx
President Vice President
By:
-------------------------------
[Name and Title]
-15-
