EXHIBIT 10.71
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Termination Agreement") is entered into as
of April 30, 1996, by and among Boomtown Indiana, Inc., an Indiana corporation
("Boomtown Indiana"), Boomtown, Inc., a Delaware corporation ("Boomtown
Parent"), Boomtown Riverboat, Inc., a Nevada corporation ("BRI"), SES Indiana,
L.L.C., and Indiana limited liability company ("SES Indiana"), SES Facilities,
Inc., and Indiana corporation ("SES Facilities"), First SES Indiana, Inc., and
Indiana corporation ("SES GP"), SES Gaming, Inc., a Nevada corporation ("SES
Gaming") and Sheldon E. Stunkel, an individual ("Stunkel") Boomtown Indiana, BRI
and Boomtown Parent are collectively referred to as the "Boomtown Group", and
SES Indiana, SES Facilities, SES Gaming, SES GP and Stunkel are collectively
referred to as the "SES Group".
BACKGROUND
A. The Boomtown Group and the SES Group entered into that certain Master
Agreement dated as of February 1, 1994, as amended (the "Master Agreement"),
concerning a gaming project in Lawrenceburg, Indiana (the "Lawrenceburg
Project"), and other potential projects in certain areas of Ohio, Kentucky and
Indiana.
B. The parties have failed to obtain a gaming license in conjunction with
the Lawrenceburg Project.
C. The Boomtown Group is now undertaking a potential project in
Switzerland County, Indiana in conjunction with Hilton Gaming Corporation (the
"Switzerland Project").
D. The Boomtown Group and the SES Group have disagreements over the
respective parties' rights in the Indiana projects and wish to resolve amicably
the disagreements as described below.
NOW, THEREFORE, in consideration of the mutual representations and
covenants made herein, the parties hereby agree as follows:
1. TERMINATION OF MASTER AGREEMENT To the extent not previously
terminated, the Master Agreement, including without limitation Sections 6.2 and
6.3 of the Master agreement and all rights and obligations of the parties under
the Master Agreement, is hereby terminated, and is of no further force and
effect.
2. WAIVER OF ANY RIGHTS IN SWITZERLAND PROJECTS The SES Group waives any
and all rights that it may have had under the Master Agreement or otherwise to
participate in the Switzerland Project, including without limitation any rights
to any income therefrom.
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EXHIBIT 10.71 (CONTINUED)
3. TRANSFER OF INTEREST IN LAWRENCEBURG PROJECT
(a) For good and valuable consideration, the Boomtown Group hereby
transfers to SES Facilities all of the Boomtown Group's right, title and
interest in and to the Lawrenceburg Project. Such transfer includes without
limitation (I) the transfer by the Boomtown Group of all of its outstanding
stock in BRI and Boomtown Indiana to SES Facilities, such that the SES Group, as
holder of 100% of the outstanding stock of BRI and Boomtown Indiana, will hold
all general and limited partnership interests in Boomtown Landing, L.P., SES
Boat, L.P. and Boomtown Belle, L.P. , (collectively, the "Partnerships"), and
(ii) delivery to the SES Group of all documents, rights, files, plans, tapes and
the like relating to the Lawrenceburg Project (provided that duplicate copies of
such material may be retained by the Boomtown Group and provided further that
the Boomtown Group and its affiliates shall have the right to use concepts,
ideas, drawings and the like contained in such transferred material). The SES
Group acknowledges and agrees that the Boomtown Group has not further
obligations under the Agreements of Limited Partnership of the Partnerships and
under the Development and Pre-Opening Services Agreement, dated as of February
1, 1994 (the "Pre-Opening Agreement"). The parties further agree that the Pre-
Opening Agreement is terminated.
(b) In connection with the transfer of the stock of BRI and Boomtown
Indiana, Boomtown Parent hereby represents and warrants to SES Facilities as of
the date of this Termination Agreement that (I) each of the BRI and Boomtown
Indiana has no liabilities in excess of $300 resulting from the actions of
inaction's of the Boomtown Group, and no assets other than its interest in the
Partnerships and the Lawrenceburg Project, including without limitation the
gaming application relating thereto currently on file with the Indiana Gaming
Commission (the "Gaming Application"), (ii) each of BRI and Boomtown, Indiana
are in good standing in the State of Indiana, and with respect to BRI , the
State of Nevada, (iii) no consents are required pursuant to written agreements
to which the Boomtown Group is a party in connection with the transfer of the
rights and interests of the Boomtown Group contemplated hereby and (iv) to the
Boomtown Group's knowledge, the Gaming Application is still in force and effect
as of the date of this Termination Agreement. However, the Boomtown Group makes
no representation regarding the status of the Gaming Application, or the effect
of this Termination Agreement on the status of the Gaming Application. The
Boomtown Group and the SES Group agree to take all reasonable actions and
execute all appropriate documents that may be necessary or advisable in
effecting the transfer described herein, including without limitation any
reasonable actions that may be required by the Indian Gaming Commission in
connection with the transfer described herein.
4. NO RIGHT TO BOOMTOWN NAME The SES Group acknowledges and agrees that
it does not have the right to use the Boomtown name in any way, including
without limitation in connection with the Lawrenceburg Project. The SES Group
further agrees to take all actions and execute all documents necessary or
advisable (as the Boomtown Group may reasonably determine) to change the names
of Boomtown Indiana, BRI, Boomtown Landing, L.P. and Boomtown Belle, L.P. to
eliminate the "Boomtown" from the entity names, including without limitation any
filings with the Indiana Gaming Commissions and other governmental entities
necessary to notify of the name change and transfer contemplated hereunder,
which actions and filings shall be accomplished not later than 30 days after the
date of this Termination Agreement.
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EXHIBIT 10.71 (CONTINUED)
5. REIMBURSEMENT OF EXPENSES Simultaneous with the execution of this
Termination Agreement, the Boomtown Group shall reimburse Stunkel for (I)
$32,509 for his expenses incurred prior to July 1995 in connection with the
transactions contemplated by the Master Agreement and (ii) $18,000 for the
expenses of Mr. John House incurred prior to July 1995 in connection with the
transactions contemplated by the Master Agreement (provided, however, that it is
contemplated that Mr. House shall promptly reimburse the Boomtown Group for any
amount reimbursed to Mr. House not incurred in connection with the transactions
contemplated by the Master Agreement prior to July 1995.) The SBS Group
acknowledges and agrees that such amounts represent the full and entire amounts
due to them under the Master Agreement, and that no further amounts shall be due
and owing to the SES Group (or any of its representatives or agents) under the
Master Agreement and related documents. Mr. House shall deliver a similar
acknowledgment and agreement as a condition to his receipt of the $18,000
referred to above.
6. GENERAL RELEASE
(a) The Boomtown Group (and each member thereof) and the SES Group
(and each member thereof) each forever releases and discharges each other, their
respective officers, directors, employees, investors, stockholders,
administrators, successors and assigns, from any and all claims, rights,
demands, actions, obligations, liabilities, and causes of action of any kind and
nature, known and unknown, suspected or unsuspected, that it now has or has ever
had against the other, arising on or prior to the date of this Termination
Agreement, including without limitation arising out of or in any way connected
with the negotiation, execution, partial performance and termination of the
Master Agreement (including without limitation all exhibits thereto), and
including without limitation any and all claims for breach of contract (both
express and implied), breach of a covenant of good faith and fair dealing (both
express and implied), negligent or intentional misrepresentation and negligent
or intentional interference with contract or prospective economic advantage.
(b) The parties understand and agree that the release set forth in
Section 6(a) is a full and final release of any and all claims described above,
and the parties agree that it shall apply to all unknown, unanticipated, and
undisclosed claims, demands, liabilities, actions, or causes of action, as well
as those which are now known, anticipated, suspected, or disclosed. Each of the
Boomtown Group (and each member thereof) and the SES Group (and each member
thereof) expressly waives all rights under any law of any state or territory in
the United States of American or any other jurisdiction that reads substantially
as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN THE
CREDITOR'S FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY THE CREDITOR MUST HAVE MATERIALLY
AFFECTED THE CREDITOR'S SETTLEMENT WITH THE DEBTOR.
(c) The parties represent and warrant that they are fully entitled to
give this complete release and discharge and that there are no liens, claims of
lien, or assignments, at law or in equity or otherwise, with respect to any
existing or potential claims or causes of action arising out of or in any way
connected with their relationship.
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EXHIBIT 10.71 (CONTINUED)
7. CONFIDENTIALITY During the term of the Master Agreement, each party
may have had access to or become acquainted with various trade secrets and
confidential information or the other parties, including financial information,
management guidelines and procedures, operating manuals, and similar
compilations and documents regularly used in the operation of its business. No
party (the "Disclosing Party") shall disclose to any third person or make copies
of any of the other parties' trade secrets or confidential information, directly
or indirectly, during or subsequent to the term of this Termination Agreement
without that party's prior written consent, except (i) where such disclosure is
required by law or court order (and solely to the extent required) and (ii)
where such information is or becomes public knowledge through no fault of the
Disclosing Party. All recipes, files, records, documents, compilations,
manuals, and similar items (including all copies or facsimiles thereof) shall
remain the exclusive property of the party providing such information.
8. MISCELLANEOUS
(a) EXPENSES Each party shall bear its own costs, attorneys' fees
and other fees incurred in connection with the negotiation and preparation of
this Termination Agreement.
(b) ENTIRE AGREEMENT This Termination Agreement represents the
entire understanding and agreement between the parties regarding the subject
matter hereof and supersedes and replaces any and all prior understandings and
agreements, written or oral, relating to the subject matter hereof, including
without limitation that certain letter agreement dated as of March 21, 1996.
(c) AMENDMENTS This termination Agreement may only be amended in a
writing signed by a duly authorized representative from both the Boomtown Group
and the SES Group.
(d) BINDING ON SUCCESSORS AND ASSIGNS This Termination Agreement
shall bind the personal representatives, successors and assigns of the parties,
and inure to the benefits of the parties, and their respective directors,
officers, stockholders, partners, employees, representatives, successors and
assign.
(e) GOVERNING LAW This Termination Agreement shall be governed by
the laws of the State of Indiana. If either part commences an action against any
other party arising out of or in connection with this Termination Agreement, the
prevailing party shall be entitled to have an recover from the losing party the
reasonable fees for attorneys and expert witnesses and its court costs.
(f) SEVERABILITY In the event that any provision of this Termination
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, such provision shall be revised so as to
maintain as much of the parties' originally stated intent as is lawful of, if
incapable of such revision, shall be deleted herefrom, while all of the other
terms and conditions of this Terminating Agreement shall be unaffected and
remain in full force and effect and continue to bind the parties.
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EXHIBIT 10.71 (CONTINUED)
(g) COUNTERPARTS. This Termination Agreement may be executed in
counterparts, and each counterpart shall have the same force and effect as an
original and shall constitute an effective binding agreement on the part of each
of the undersigned.
(h) NO ADMISSION OF LIABILITY. The parties understand and
acknowledge that the release set forth in Section 6 above and the other
covenants and provisions set forth in this Termination Agreement constitute a
settlement and compromise of all disputed claims of the parties. No action
taken by the parties either previously or in connection with the Termination
Agreement, shall be deemed or construed to be an admission of the truth or
falsity or any claims previously mad or an acknowledgment or admission by either
party of any fault or liability whatsoever to the other party.
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IN WITNESS WHEREOF, the parties have executed this Termination Agreement as
of the date first set forth above
SES INDIANA, L.L.C. BOOMTOWN INDIANA, INC.
AN INDIANA LIMITED LIABILITY COMPANY AN INDIANA CORPORATION
SIGNATURE /S/ SHELDON E. STUNKEL SIGNATURE /S/ ROBERT F. LIST
-------------------------- ---------------------------
NAME SHELDON E. STUNKEL NAME ROBERT F. LIST
-------------------------- ---------------------------
TITLE CHAIRMAN TITLE SR. VICE PRESIDENT
-------------------------- ---------------------------
SES GAMING, INC. BOOMTOWN RIVERBOAT, INC.
A NEVADA CORPORATION A NEVADA CORPORATION
SIGNATURE /S/ SHELDON E. STUNKEL SIGNATURE /S/ ROBERT F. LIST
-------------------------- ---------------------------
NAME SHELDON E. STUNKEL NAME ROBERT F. LIST
-------------------------- ---------------------------
TITLE CHAIRMAN TITLE SR. VICE PRESIDENT
-------------------------- ---------------------------
FIRST SES INDIANA, INC. BOOMTOWN, INC.
AN INDIANA CORPORATION A DELAWARE CORPORATION
SIGNATURE /S/ SHELDON E. STUNKEL SIGNATURE /S/ ROBERT F. LIST
-------------------------- ---------------------------
NAME SHELDON E. STUNKEL NAME ROBERT F. LIST
-------------------------- ---------------------------
TITLE PRESIDENT TITLE SR. VP/CORPORATE COUNSEL
-------------------------- ---------------------------
SES FACILITIES, INC. SHELDON E. STUNKEL.
AN INDIANA CORPORATION AN INDIVIDUAL
SIGNATURE /S/ SHELDON E. STUNKEL SIGNATURE /S/ SHELDON E. STUNKEL
-------------------------- ---------------------------
NAME SHELDON E. STUNKEL
--------------------------
TITLE PRESIDENT
--------------------------
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