EXHIBIT 10.113
SALE AND PURCHASE CONTRACT
--------------------------
THIS SALE AND PURCHASE CONTRACT (this "Contract") is made and entered into
as of the 7th day of November, 1995 by and between SAHARA GAMING CORPORATION, a
Nevada corporation (referred to as "Seller"), and ARGOSY GAMING COMPANY, a
Delaware corporation (referred to as "Buyer").
1. Sale of Vessel and Sale of Property. Seller hereby agrees to sell to
-----------------------------------
Buyer and Buyer hereby agrees to purchase from Seller the following described
property:
a. The barge vessel known as the "Spirit of America" (Official No.
259139) (the "Vessel"), presently berthed at mile marker 486 on the Ohio
River, near North Bend, Ohio, together with said Vessel's superstructure
(including without limitation that certain three story metal structure and
all improvements and systems contained therein), all cables, machinery,
rigging, anchors, chains, tackle, furniture, fittings, pumps, equipment,
heating, ventilation and cooling systems, electrical and other hook-ups
which connect to shore-based facilities (including all lines to the extent
same are owned by Seller), and all supplies, accessories, appurtenances and
improvements thereto belonging and presently aboard the Vessel; and
b. Those items of furniture, fixtures and equipment currently stored
in Riverside, Missouri (the "Stored Items"), as itemized on Exhibit "A"
attached hereto and incorporated herein by reference.
c. Notwithstanding the foregoing descriptions in subparagraphs "a" and
"b" hereof, none of the foregoing shall be construed to include any
property not presently aboard or attached to the Vessel or not presently in
storage in Riverside, Missouri.
2. Purchase Price; Terms. The purchase price for the Vessel and the
---------------------
Stored Items shall be THREE MILLION, THREE HUNDRED THOUSAND AND NO/100 DOLLARS
($3,300,000.00) payable as follows (the "Purchase Price"):
(a) upon the execution of this Contract, $100,000.00 shall be paid in
cash as an xxxxxxx money deposit (the "Escrow Deposit") to be held in
escrow pursuant to the terms of Paragraph 3 hereof; and
(b) $3,200,000.00 shall be paid in cash at the Closing, as hereinafter
provided.
3. Escrow. Upon the execution hereof, Buyer shall deposit with Seller's
------
broker, J.S. Productions, Inc. (hereinafter sometimes referred to as "Escrow
Agent"), the Escrow Deposit to be held in escrow as set forth in the Escrow
Agreement, attached hereto as Exhibit "B" and incorporated herein by this
reference, and as provided herein.
4. Closing. The closing (the "Closing") shall occur on November 9, 1995
-------
(the "Date of Closing"). The following shall occur at Closing:
(a) Seller's Delivery. On the Date of Closing, Seller shall deliver to
-----------------
Buyer:
(i) a Xxxx of Sale for the Vessel (the "Vessel Xxxx of Sale")
which shall be substantially in the form attached hereto as Exhibit
"C", and such other documents and instruments as Buyer may reasonably
request in order to transfer to Buyer title to the Vessel, free and
clear of all liens, mortgages, and security agreements;
(ii) a Xxxx of Sale for the Stored Items (the "Stored Items Xxxx
of Sale") which shall be in substantially the form attached hereto as
Exhibit "D", and such other documents and instruments as Buyer may
reasonably request in order to transfer to Buyer title to the Stored
Items, free and clear of all liens, mortgages, and security agreements;
(iii) an assignment (or other arrangement acceptable to Buyer) of
the mooring contract for the Vessel (the "Mooring Contract"), with all
outstanding charges, fees and expenses relating to the Mooring Contract
being paid by Seller up to the Date of Closing, which contract shall be
cancelable by Buyer upon not more than forty-eight (48) hours advance
written notice; and
(iv) an assignment (or other arrangement acceptable to Buyer) of
the storage contract for the Stored Items (the "Storage Contract"),
with all outstanding charges, fees and expenses relating to the Storage
Contract being paid by Seller up to the Date of Closing, which contract
shall be cancelable by Buyer upon not more than thirty (30) days
advance written notice.
(b) Buyer's Delivery. On the Date of Closing, Buyer shall deliver to
----------------
Seller by wire transfer to Seller's account, the Purchase Price, less the
amount delivered by the Escrow Agent pursuant to subparagraph (c) below.
(c) Escrow Agent's Delivery. On the Date of Closing, the Escrow Agent
-----------------------
shall deliver to Seller the Escrow Deposit plus all interest earned
thereon, and such funds shall be applied toward Buyer's obligation to pay
the Purchase Price required hereunder.
(d) Simultaneous Execution of Contract and Closing. Notwithstanding the
----------------------------------------------
foregoing provisions of this Paragraph 4, the Seller and Buyer may agree to
close the transaction contemplated hereunder simultaneously with the
execution of this Contract. In that event, Seller's delivery shall include
delivery of a signed counterpart of this Contract; Buyer's delivery shall
include delivery of a signed counterpart of this Contract, together with
the Purchase Price without adjustment for the Escrow Deposit; and the
2
provisions of this Contract relating to the Escrow Agent and the Escrow
Deposit shall be disregarded.
5. Representations, Warranties and Covenants of Seller. Seller warrants
---------------------------------------------------
and represents to Buyer as of the execution of this Contract and again as of the
Date of Closing, with the intent that Buyer shall rely thereon as follows:
(a) Corporate Status. Seller is a corporation duly organized and
----------------
validly existing under the laws of the State of Nevada, and has the
requisite power and authority to execute, deliver and carry out the
provisions of this Contract to be performed by it, together with any and
all other documents executed by it in connection with this transaction.
(b) Authorization and Validity. All necessary action on the part of
--------------------------
Seller relating to the authorization, execution and delivery of this
Contract, and all other documents executed in connection herewith, has been
properly taken. This Contract, when executed and delivered, will be a legal
and binding obligation of Seller, enforceable in accordance with its
respective terms. Seller has obtained, or prior to Closing shall obtain,
all necessary consents, approvals and authorizations of third parties in
connection with the execution and delivery of this Contract and/or the
performance of the obligations of Seller hereunder.
(c) Title to Vessel and Stored Items. Seller has good and marketable
--------------------------------
title to the Vessel and the Stored Items, and at Closing the Vessel and the
Stored Items shall be transferred to Buyer free and clear of any mortgages,
liens, charges, claims or encumbrances of any nature whatsoever.
(d) Condition of the Vessel. Buyer agrees to accept the Vessel and the
-----------------------
Stored Items "as is" and "where is" at Closing.
(e) Litigation. There are no actions, suits or proceedings pending
----------
or, to Seller's knowledge, threatened against or affecting Seller, at law
or in equity, or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality which
would involve the possibility of any judgment or liability which may result
in any material adverse claim, lien or liability against the Vessel or the
Stored Items.
(f) Compliance with other Instruments. Seller is not in default in the
---------------------------------
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement to which it is a party which would
adversely affect Seller's ability to perform its obligations under this
Contract. Neither the documents executed in connection herewith, nor the
consummation of the transaction contemplated hereby, will (i) violate the
provisions of any applicable law or of any applicable order or regulation
of any governmental authority having jurisdiction over
3
Seller, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any restriction, or of any agreement or
instrument to which Seller is subject, or constitute a default thereunder,
or (iii) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon Seller, the Vessel, or the Stored
Items.
6. Representations, Warranties and Covenants of Buyer. Buyer warrants and
--------------------------------------------------
represents to Seller as of the execution of this Contract and again as of the
Date of Closing, with the intent that Seller shall rely thereon as follows:
(a) Corporate Status. Buyer is a corporation duly organized and
----------------
validly existing under the laws of the State of Delaware, and has the
requisite power and authority to execute, deliver and carry out the
provisions of this Contract to be performed by it, together with any and
all other documents executed by it in connection with this transaction.
(b) Authorization and Validity. All necessary action on the part of
--------------------------
Buyer relating to the authorization, execution and delivery of this
Contract, and all other documents executed in connection herewith, has been
properly taken. This Contract, when executed and delivered, will be a legal
and binding obligation of Buyer, enforceable against Buyer in accordance
with its respective terms. Buyer has obtained, or prior to Closing shall
obtain, all necessary consents, approvals and authorizations of third
parties in connection with the execution and delivery of this Contract
and/or the performance of the obligations of Buyer hereunder.
7. Expenses.
--------
(a) Sales Taxes. The Buyer shall be responsible for the payment of any
-----------
applicable sales or use taxes, assessments, charges, duties, and fees
resulting from this transaction, and Buyer agrees to protect, defend,
indemnify and hold Seller harmless against any attempted or actual
imposition of any such sales or use taxes, assessments, charges, duties,
fees, and interest or penalties thereon. Seller will cooperate with Buyer
in the closing of this transaction to permit Buyer to minimize the
application of sales and use taxes in this transaction. In that regard, the
site of delivery and closing may be changed, with all costs associated
therewith to be borne by Buyer.
(b) Buyer's Sole Expenses. The following expenses shall also be the
---------------------
sole responsibility of the Buyer:
(i) The detachment of the Vessel from its current mooring and
utilities;
(ii) Transportation of the Vessel;
4
(iii) Registration costs of the Vessel into the name of the Buyer;
and
(iv) Buyer's legal costs and expenses;
(v) All charges, fees, and expenses incurred under the Mooring
Contract following the time that title to the Vessel is transferred to
Buyer; and
(vi) All charges, fees, and expenses incurred under the Storage
Contract following the time that title to the Stored Items is
transferred to Buyer.
(c) Seller's Sole Expenses. The following expenses shall be the sole
----------------------
responsibility of the Seller:
(i) Any and all costs required to give clear title to the Vessel
to Buyer;
(ii) Seller's legal costs and expenses;
(iii) Seller's federal, state and local income taxes; and
(iv) All charges, fees, and expenses incurred under the Mooring
Contract prior to the time that title to the Vessel is transferred to
Buyer; and
(v) All charges, fees, and expenses incurred under the Storage
Contract prior to the time that title to the Stored Items is
transferred to Buyer.
(d) Personal Property Taxes. Seller shall be solely responsible for
-----------------------
the payment of personal property taxes relating to the Vessel and the
Stored Items due or accrued for any period of time prior to the Date of
Closing, and Seller shall protect, defend, indemnify and hold Buyer
harmless against any attempted or actual imposition of such taxes,
including interest and/or penalties thereon. Buyer shall be solely
responsible for the payment of personal property taxes relating to the
Vessel and the Stored Items due or accrued for any period of time after the
Date of Closing, and shall protect, defend, indemnify and hold Seller
harmless against any attempted or actual imposition of such taxes,
including interest and/or penalties thereon. However, notwithstanding the
foregoing, neither Seller nor Buyer shall pay any taxes that it believes
are not its responsibility under the terms of this Paragraph 7(d) without
the express, written consent of the other party first obtained.
8. Passage of Title; Risk of Loss. Title and risk of loss relating to the
------------------------------
Vessel and the Stored Items shall pass from Seller to Buyer at the time of the
Closing, upon Seller's delivery to Buyer of the Vessel Xxxx of Sale and the
Stored Items Xxxx of Sale, respectively.
5
9. Insurance.
---------
(a) Seller's Responsibility. During the period of time from the
-----------------------
execution hereof until title is transferred to Buyer, the Seller shall
provide insurance to protect the Vessel and the Stored Items from loss or
hazards. Buyer will be furnished proof of such insurance upon request.
(b) Major Damage. In the event of damage to the Vessel exceeding a
------------
repair cost of $500,000.00 by fire, accident, act of God, or otherwise
prior to the Closing, Buyer is hereby given the following options which
must be exercised by notice to Seller given by Buyer in writing within five
(5) days following such event of damage:
(i) It may decline to consummate this sale transaction and the
Escrow Deposit made pursuant hereto shall be fully refunded, together
with interest, to the Buyer; or
(ii) It may elect to purchase the Vessel, as damaged, and the
Purchase Price shall be reduced by an amount equal to the difference
between the Purchase Price stated in Paragraph 2 hereof and the fair
market value of the Vessel, as damaged.
(c) Minor Damage. In the event the cost to repair any such damage to
------------
the Vessel is $500,000.00 or less, then, in such event, Buyer shall have
the following options:
(i) It may require that the Seller immediately repair the Vessel
to its pre-damage condition within sixty (60) days thereafter (the
"Repair Period"), in which event Seller shall be entitled to all
insurance proceeds resulting therefrom and the Closing shall occur at
the later of the end of the Repair Period or the previously scheduled
Closing Date; or
(ii) It may elect to close and accept the Vessel in such damaged
condition and receive all insurance proceeds with any deficiency
between such insurance proceeds and the cost to repair such damages
being deducted from the balance due at Closing.
(d) Waiver of Consequential Damages. The options contained in
-------------------------------
subparagraphs (b) and (c) of this Paragraph 9 are Buyer's sole and
exclusive remedies in the event that damage is sustained by the Vessel
prior to Closing. Buyer hereby expressly agrees that Seller shall not be
liable to Buyer for any damages sustained by Buyer as a result of any such
damage sustained by the Vessel prior to Closing, and Buyer hereby waives
any and all rights against Seller for consequential and/or exemplary
damages.
6
(e) Damage or Destruction of Stored Items. In the event that any of
-------------------------------------
the Stored Items shall be damaged or destroyed prior to Closing, Buyer
shall have the option to either receive the insurance proceeds pertaining
to such damage or destruction, or to exclude the damaged or destroyed items
from the Closing and reduce the Purchase Price by the fair market value of
such property immediately prior to such damage or destruction.
10. Remedies.
--------
(a) Seller's Default. In the event Seller defaults hereunder and
----------------
Buyer is not in default, then Buyer's sole and exclusive remedies shall be
(i) to seek specific performance of this Contract, or (ii) to terminate
this Contract. Upon written demand by Buyer after default by Seller and
termination of this Contract by Buyer, the Escrow Agent shall return the
Escrow Deposit and all interest thereon to Buyer. In no event shall Seller
be liable to Buyer for any monetary damages, and Buyer hereby waives any
and all rights against Seller for consequential and/or exemplary damages.
(b) Buyer's Default. In the event Buyer defaults hereunder and
---------------
Seller is not in default, the Escrow Agent, upon demand by Seller, shall
pay the Escrow Deposit, and all interest thereon, to Seller as liquidated
damages and not as a penalty.
11. Survival; Indemnity. This Contract and all representations,
-------------------
warranties, covenants and agreements of Seller and Buyer herein, shall survive
the Closing hereunder and any investigation and inquiry made by or on behalf of
either party. Seller and Buyer, and their respective successors and assigns,
agree to protect, defend, indemnify and hold the other party, its successors and
assigns, harmless from and against all expenses, damages, liabilities, losses,
costs (including reasonable attorney's fees) and claims of every kind and nature
whatsoever which may be sustained or suffered by such other party as a
consequence of the breach of any representation, warranty, covenant or agreement
contained in this Contract or in any document or instrument executed and
delivered in connection herewith.
12. Governing Law. This Contract shall be interpreted and enforced
-------------
pursuant to the law of the State of Illinois.
13. Complete Agreement. This Contract contains the entire agreement of
------------------
the parties and no change or modification of this Contract shall be valid unless
the same be in writing and signed by the Buyer and the Seller.
14. Notices. All communications between the parties hereto and notices
-------
herein shall be in writing and shall be mailed by Federal Express or other
overnight delivery, or certified mail, return receipt requested, to the parties
at the following addresses:
7
TO THE BUYER: Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
with information copy to: Xxxxxxx X. Xxxxxx
Summers, Compton, Xxxxx & Hamburg, P.C.
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
TO THE SELLER: Sahara Gaming Corporation
Santa Fe Hotel
0000 X. Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxx Xxxx
with information copy to: Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
or at such other addresses as either party may designate pursuant to this
Paragraph.
15. Counterparts. The parties agree that this Contract may be executed in
------------
counterparts all of which taken together shall form a single instrument.
16. Commissions. The parties hereto agree and acknowledge that the
-----------
procuring Broker for this transaction is XxXxxx Xxxxxx of X. X. Productions
("Broker") and that such Broker has been retained by Seller. Seller, under
separate agreement with Broker, shall be solely responsible for any commission
due for this sale. Buyer and Seller represent and warrant unto each other that
they have had no dealings with any other broker or finder other than as set
forth herein, and agree to defend, indemnify, and hold each other harmless from
any and all loss or claim arising out of or related to any claim for commission
or brokerage fee as a result of any breach of this representation and warranty.
17. Successors and Assigns. All the terms, conditions, covenants and
----------------------
agreements of this Contract shall extend to and be binding upon Seller and Buyer
and their respective successors and assigns.
8
18. Headings. The sections, titles and other headings of this Contract
--------
are inserted for convenience only and shall not control or affect the meaning,
construction or interpretation of this Contract.
19. Post-Closing Assistance. Upon the request of Buyer at any time and
-----------------------
from time to time following the Closing, Seller and its authorized officers,
without further consideration, shall execute and deliver to Buyer such further
documents or instruments of assignment, transfer, conveyance, endorsement,
direction or authorization as Buyer or its counsel may reasonably request in
order to perfect the title of Buyer and its successors and assigns in and to the
Vessel purchased hereunder, or otherwise to fulfill the purpose and intent of
this Contract.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the day and year first above written.
SELLER: SAHARA GAMING CORPORATION
By: /s/ Xxxxxx X. Land
---------------------------------------------------
XXXXXX X. LAND
Title: SENIOR VICE PRESIDENT & CHIEF FINANCIAL OFFICER
------------------------------------------------
BUYER: ARGOSY GAMING COMPANY
By: /s/ H. Xxxxxx Xxxxxx
---------------------------------------------------
H. XXXXXX XXXXXX
Title: PRESIDENT
------------------------------------------------
9
EXHIBIT "A"
INVENTORY OF STORED ITEMS
-------------------------
1. Wooden shelf with miniature showboat (4ft by 3ft)
2. Antique maple credenza with miniature, Xxxxxx X. Xxx, showboat
3. Miniature showboat (3 1/2 ft by 1 1/2 ft)
4. Wooden, rounded arms, with pad on seat and top of back (178)
5. Cushioned lounge chairs (10)
6. Ear stool - wooden frame, armless, with padded seat and back (23)
7. Dining room chair - armless, dark wood frame, padded seat and back (145)
8. Wicker chair with tall back and square cushioned seat (44)
9. Antique, floral print sofa, maple trim
10. Lead stain glass picture
11. Square mirror, oak frame, very detailed
12. Large oval mirror surrounded by very detailed frame with a cherub
13. Tall rectangular mirror with oak frame, small shelf at the bottom
14. Tall rectangular mirror, wide frame
15. Full length mirror, very detailed frame
16. Oval mirror (5)
17. Maple antique vanity
18. Waist level, maple end table
19. Maple antique desk
20. Armoire with marble top
21. Dresser with 3 drawers, marble top (top broken)
22. Small credenza
23. Tall dresser, several drawers and marble top
24. Waist level dresser with marble top
25. Armoire with marble top (top broken)
26. Plain desk and 2 pictures
27. Small bureau with mirror
28. Copper wash tub (1)
29. Copper kettle (1)
30. Hanging glass light made from lead stain glass (1)
31. Pictures (41)
32. Kitchen equipment as follows:
Garland convection oven
Garland range, 6 burner (2)
18" Wire flat top Xxxxxxx
Xxxxxxx range with broiler
Ice machines without bins (3)
Proofing cabinet
Metro Auto Sham
4 door Mc Can refrigerators (2)
48" charbroil with stand
South Bend broilers (2)
4 burner range Garland
Stainless steel work tables/some with shelves (several)
Ice cream freezer
Green machine vegetable dryer
Hobart Slicers (2)
Garland Cyclone convection oven (3)
Microwave
Stainless steel sink (several)
24" Refrigerators Xxxxxx (2)
Refrigerator work table 60"
Milk dispenser
3 door refrigerator work station
2 door refrigerator work station
3 bay deep fryer Pitco
8 drawer refrigerator work table
Garland 4 qt. tilt skillet
Large convection oven (2)
Station Pitco Deep Fryer (2)
36" gas Charbroiler
Hobart dishwashers (2)
Stainless steel shelves
10 door refrigerator work station
6 drawer refrigerator work table
2 door beer box
2 door glass reach in box
Boxes miscellaneous glassware, packed (75)
Stage lights (6)
Boxes China dishes (28)
Plastic racks of glassware (37)
Brass lights (2)
24 qt. tilt skillet (1)
Tub silverware (1)
