EXHIBIT 10(cg)
EXECUTION COPY
AGREEMENT OF PURCHASE AND SALE
BETWEEN
THE CLARIDGE AT PARK PLACE, INCORPORATED
and
ATLANTIC CITY BOARDWALK ASSOCIATES, L.P.,
SELLER
and
PARK PLACE ENTERTAINMENT CORPORATION,
BUYER
Property:
THE CLARIDGE HOTEL AND CASINO,
Atlantic City, New Jersey
Dated: as of November ____, 2000
1. Definitions...............................................................2
2. Agreement to Purchase and Sell; Purchase Price and Escrow Agreement.......8
3. Other Property Included in Purchase and Sale..............................9
3A. The Existing Leases and the Contracts....................................10
3B. Security Interests.......................................................11
4. Documents and Information Furnished by Seller;
Confidentiality of Transaction...........................................12
5. Assumption of Liabilities................................................13
6. Buyer's Inspection of the Business and Property..........................13
7. Representations, Warranties and Covenants................................16
7A.1 LNA Contingency..........................................................19
7B.1 Real Property Title Report Contingency...................................20
8. Conditions Precedent.....................................................23
9. Closing..................................................................25
10. Adjustments; Deposits and Property of Guests.............................27
11. Expenses.................................................................29
12. Risk of Loss; Eminent Domain.............................................29
13. Broker's Commissions.....................................................30
14. Employees................................................................30
15. Assignment...............................................................30
15. Employee Related Matters.................................................30
16. Defaults.................................................................34
17. Notices..................................................................35
18. General Provisions.......................................................37
EXHIBITS TO AGREEMENT
A-1 - ACBA Land
A-2 - CPPI Land
A-3 - Net Non-Cash Working Capital As Of 6/30/00
B - Lease Schedule
C - Excluded Assets
D - Post-Petition Contracts
2.2 - Escrow Agreement
2.3 - Purchase Price Allocation
7.1.4 - Lease Defaults
7.1.5 - Contract Defaults
7.1.9 - Other Encumbrances and Interests
7B.1 - Schedule B Title Exceptions
9.2.1 - Quitclaim Deed
9.2.2 - Quitclaim Xxxx of Sale
9.2.3(a) - Assignment and Assumption of Leases
9.2.3(b) - Assignment and Assumption of Contracts
9.2.4 - Assignment and Assumption of Intangible Property
9.2.8 - Assignment and Assumption of Wraparound Mortgage
and Wraparound Loan Documents
9.2.10 - Allonge Endorsement to Wraparound Mortgage Note
9.2.11 - Allonge to FF&E Note
9.2.12 - Assignment and Assumption of Liabilities
15A.1(c) - Excess Parachute Payment Agreements
15A - Labor Matters
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") made as of
the ____ day of November, 2000, among THE CLARIDGE AT PARK PLACE, INCORPORATED,
a New Jersey corporation ("CPPI") and ATLANTIC CITY BOARDWALK ASSOCIATES, L.P.,
a New Jersey limited partnership ("ACBA"; CPPI and ACBA being sometimes
hereinafter collectively referred to as "Seller") and PARK PLACE ENTERTAINMENT
CORPORATION, a Delaware corporation ("Buyer").
RECITALS
WHEREAS, ACBA is the owner of certain fee interests more
particularly described on Exhibit A-1 annexed hereto, including the buildings
and improvements thereon, and other interests in that certain hotel and casino
commonly known as The Claridge Hotel and Casino located in Atlantic City, New
Jersey and the related valet parking facility; and
WHEREAS, ACBA also owns or leases substantially all of the
non-gaming personal property utilized in connection with the operation of the
Property (hereinafter defined), including furniture, equipment, and inventory;
and
WHEREAS, CPPI is the owner of certain fee interests more
particularly described on Exhibit A-2 annexed hereto, including the buildings
and improvements thereon, upon which is operated a self parking garage utilized
in connection with the operation of the Property; and
WHEREAS, CPPI also owns or leases, inter alia, certain items of
inventory and all gaming related items of personal property utilized in
connection with the operation of the Property; and
WHEREAS, CPPI entered into various leases, service and
maintenance contracts and similar agreements in connection with the operation
and maintenance of the Property; and
WHEREAS, on October 5, 1999 (the "ACBA Petition Date") ACBA filed
a voluntary chapter 11 bankruptcy petition in the United States Bankruptcy Court
for the District of New Jersey (the "Bankruptcy Court"), which case is styled as
Case No. 99-18903 (the "ACBA Case"); and
WHEREAS, on August 16, 1999 (the "CPPI Petition Date"; the ACBA
Petition Date and the CPPI Petition Date being hereinafter collectively referred
to as the "Petition Dates"), CPPI (together with The Claridge Hotel and Casino
Corporation, the parent of CPPI), filed a voluntary bankruptcy petition in the
Bankruptcy Court, which case is styled as Case No. 99-17399 (the "CPPI Case",
the ACBA Case and the CPPI Case being hereinafter collectively referred to as
the "Bankruptcy Cases"); and
WHEREAS, both prior to and since the Petition Dates, Seller has
engaged in extensive efforts to market the Property and the Business (as
hereinafter defined); and
WHEREAS, Seller desires to sell to Buyer the Property and the
Business, and Buyer desires to purchase the Property and the Business on the
terms and conditions set forth below (the "Transaction"); and
WHEREAS, ACBA, CPPI and The Claridge Hotel and Casino
Corporation, which owns 100% of the stock in CPPI and itself is a
debtor-in-possession in the Bankruptcy Cases, intend to file a plan of
reorganization (the "Plan") which incorporates and implements the Transaction,
which is integral to the Plan.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as
follows:
1. Definitions.
"Accounts Receivable" means accounts receivable relating to the
Business (including past due amounts), along with the right to collect the same,
including, but not limited to, all rentals, operating cost pass-throughs, unpaid
room, food and beverage charges, unpaid telephone charges, unpaid valet charges,
unpaid charges for other services or merchandise, unpaid charges for banquets,
meeting rooms, catering, and the like, sales, use and occupancy taxes due from
the consumers of such goods and services, amounts owed to Seller from credit
card companies pursuant to signed credit card receipts, whether or not such
credit card receipts have been delivered by Seller to the credit card companies,
and refunds, proceeds prepayments, and like returns attributable to the period
prior to the Closing.
"Assumption Notice" has the meaning set forth in Section 3A.1.
"Agreement" has the meaning set forth in the introductory
paragraph.
"ACBA" has the meaning set forth in the introductory paragraph.
"ACBA Consideration" has the meaning set forth in Section 2.3(C).
"ACBA Credit" means that certain $2,000,000 payable by Greate Bay
Hotel and Casino, Inc. t/a Sands Hotel & Casino ("Greate Bay") as partial
payment of the purchase price for the sale of the administration building by
ACBA, pursuant to a letter agreement dated February 10, 0000 xxxxxxx XXXX,
Xxxxxx Xxx, XXXX and The Claridge Hotel and Casino Corporation, to be paid as a
monthly credit of $50,000 and applied against the $50,000 monthly license fee
required to be paid by CPPI to Greate Bay under that certain Brighton Park
Improvements Agreement dated November 5, 1987 between Greate Bay and CPPI.
"ACBA Proceeds" means any and all cash or other property or
assets paid or payable to ACBA in connection with the sale of the administration
building which was owned by ACBA and sold to Greate Bay located in Atlantic
City, New Jersey, excluding the ACBA Credit.
"ACBA Petition Date" has the meaning set forth in the Recitals.
"ACBA Property" means that portion of the Property that is owned
by ACBA or in which ACBA has any right, title or interest.
"Approving Order" means that Order Approving Assumption and
Extension of Employment Contracts and Approving Adoption of Retention Policy for
Key Employees from the Bankruptcy Court that is pending to approve that Motion
for Order to Assume and Extend Employment Contracts and for Approval of Proposed
Retention Policy for Key Employees dated October 18, 2000, as amended.
"Bankruptcy Cases" has the meaning set forth in the Recitals.
"Bankruptcy Court" has the meaning set forth in the Recitals.
"Business" means the business and operations presently conducted
by or on behalf of ACBA and CPPI in, at or upon the Property.
"Business Day" means any day other than Saturday, Sunday or a day
that the New York Stock Exchange is closed.
"Buyer" has the meaning set forth in the introductory paragraph.
"Buyer's Agents" means Buyer's attorneys, employees, agents,
engineers, lenders, consultants, financial advisors and representatives.
"Buyer's Documents" has the meaning set forth in Section 7.4.2.
"Cash" means $7,000,000 in immediately available funds.
"Casino" means the casino presently operated in a portion of
Improvements.
"Closing" has the meaning set forth in Section 9.1.
"Closing Date" has the meaning set forth in Section 9.1.
"Closing Net Non-Cash Working Capital" means the net non-cash
working capital of the Business as of 5:59 a.m. on the day of the Closing as
calculated substantially similar to the calculations set forth on Exhibit A-3.
"Closing Net Non-Cash Working Capital Statement" has the meaning
set forth in Section 10.2.
"Closing Payment" has the meaning set forth in Section 2.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan pursuant to 11 U.S.C. ss. 1129 and the Transaction.
"Contracts" means those service, maintenance, insurance and other
contracts and agreements and all equipment leases (including all Pre-Petition
Contracts and all Post-Petition Contracts) affecting all or any portion of the
Property and binding upon Seller, including, but not limited to, any leases
affecting the gaming and casino equipment at the Property and the Thermal Energy
Services Agreement.
"CPPI" has the meaning set forth in the introductory paragraph.
"CPPI Petition Date" has the meaning set forth in the Recitals.
"CPPI Property" means that portion of the Property that is owned
by CPPI or in which CPPI has any right, title or interest.
"CRDA" means the Casino Reinvestment Development Authority.
"Designated Section 365 Items" has the meaning set forth in
Section 3A.
"Down Payment" has the meaning set forth in Section 2.2.
"Employee Agreements" means those existing employee agreements
for the nine members of upper executive management of Seller that are to be
assumed and extended by Seller pursuant to the Approving Order.
"Employee Plan Schedule" has the meaning set forth in Section
15A.1(a).
"Employee Plans" has the meaning set forth in Section 15A.1(a).
"Employees" means any persons employed in connection with the
operation of the Business.
"Environmental Inspection Period" has the meaning set forth in
Section 6.3.
"Environmental Laws" means any federal, state or local law
(whether imposed by statute, administrative or judicial order, or common law),
now or hereafter enacted, governing health, safety, the environment or natural
resources, or Hazardous Materials, including such laws governing or regulating
the use, generation, storage, removal, recovery, treatment, handling, transport,
disposal, control, discharge of, or exposure to, Hazardous Materials.
"Environmental Liability Excess" has the meaning set forth in
Section 6.3.
"Environmental Termination Notice" has the meaning set forth in
Section 6.3.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Account" has the meaning set forth in Section 2.2.
"Escrow Agent" means Title Associates of New York, as agent for
Chicago Title Insurance Company.
"Escrow Agreement" has the meaning set forth in Section 2.2.
"Excluded Assets" means the assets more particularly described on
Exhibit C attached hereto.
"Execution Date" has the meaning set forth in Section 2.2.
"Existing Leases" means those existing leases (including the
Pre-Petition Leases) affecting portions of the Improvements and binding upon
either ACBA or CPPI as lessor as more particularly described on Exhibit B
attached hereto or otherwise executed in connection with Section 3A.3 hereof.
"FF&E Notes" means those certain promissory notes of various
dates given by ACBA to CPPI evidencing loans made by CPPI to ACBA under the
Wraparound Mortgage to fund the purchase of certain furniture, fixtures,
equipment and other capital items.
"GAAP" means generally accepted accounting principals,
consistently applied.
"Hazardous Materials" means (a) petroleum or chemical products,
whether in liquid, solid, or gaseous form, or any fraction or by-product
thereof, (b) asbestos or asbestos-containing materials, (c) polychlorinated
biphyenyls, (d) radon gas, (e) any explosive or radioactive substances, or (f)
any other substance, material, waste or mixture which is or shall be listed,
defined, or otherwise determined by any governmental authority to be hazardous,
toxic, dangerous or otherwise regulated, controlled or giving rise to liability
under any Environmental Laws.
"HSR Act" has the meaning set forth in Section 8.3.2.
"Improvements" means the buildings, parking facilities (including
the self-parking facility and valet parking facility located on the Land), and
all other structures and improvements on the Land.
"Indenture" means the Indenture dated as of January 31, 1994
among The Claridge Hotel and Casino Corporation, CPPI, as guarantor, and the
Indenture Trustee.
"Indenture Trustee" means The Bank of New York as Indenture
Trustee for the 11 3/4% First Mortgage Notes due 2002 of The Claridge Hotel and
Casino Corporation and, as appropriate, as Collateral Trustee under the
Collateral Trust Agreement dated as of January 31, 1994 among The Claridge Hotel
and Casino Corporation, CPPI, ACBA, and The Bank of New York, as Collateral
Trustee.
"Intangible Property" means all trademarks, tradenames,
copyrights and service marks, including without limitation those incorporating
the name "Claridge" or "Claridge Casino Hotel" or otherwise associated with the
Business, "works made for hire" as defined in the copyright laws of the United
States (17 USC S 101 et seq.), patents, goodwill, tradedress, trade secrets and
all other intellectual property rights of Seller relating to the Business or the
Property.
"Inventory" means all merchandise, inventories, materials and
supplies used or held for sale in connection with the Business (including any
inventory owned by Seller at the retail outlets located at the Improvements),
including, without limitation, paper goods, brochures, office supplies,
stationery, consumable goods, food, beverages, liquors, menu stock, chinaware,
glassware, kitchen utensils, linens, blankets, silverware, soap, toiletries and
other operational and guest supplies, but excluding all such items to the extent
owned by third-party tenants under the Existing Leases or by concessionaires
under the Contracts. The principal items of Inventory are more fully described
in the inventory records held by CPPI and ACBA.
"IRS" has the meaning set forth in Section 15A.1(a).
"Land" means those certain parcels of land owned by ACBA and CPPI
situated in the City of Atlantic City, County of Atlantic, State of New Jersey,
and more particularly described in Exhibit A-1 and Exhibit A-2, respectively,
attached hereto.
"Laws and Regulations" means all governmental laws, regulations,
ordinances or codes applicable to the Property, including the Americans with
Disabilities Act of 1990 (42 X.X.X.xx. 12101 et -- seq.) and all regulations
promulgated thereunder.
"Liabilities" means all (a) liabilities set forth on the Closing
Net Non-Cash Working Capital Statement, including, but not limited to, trade
accounts payable, taxes (including real, personal and similar taxes) and any
other obligations to any governmental authorities having jurisdiction over the
Business or the Seller, employee wages, union dues, benefits and similar
expenses, deductibles required to be paid under insurance policies, and the
liabilities under the Wraparound Documents, costs, expenses and liabilities,
whether liquidated, unliquidated or contingent, incurred by the Seller in the
ordinary course of business consistent with prior practices and that arise on or
after the Petition Dates in connection with (i) the Bankruptcy Cases (but
excluding the fees and expenses of professionals retained by the Seller or any
statutory committee appointed in the Bankruptcy Cases), (ii) the Property, and
(iii) the Business, and (b) any other liabilities that Buyer agrees to assume in
accordance with this Agreement, including without limitation, the severance
obligation described in Section 14 and the Employment Agreements described in
Section 7.1.11 (but in no event shall Buyer be responsible for any portion of
the retention bonuses payable to key employees pursuant to the Approval Order).
"Libra" has the meaning set forth in Section 13.
"Material Environmental Condition" means the use, presence,
storage, handling, or disposal of any Hazardous Materials at or about the Land
or Improvements in violation of any Environmental Laws, which is anticipated to
cost, in the aggregate, more than $5,000,000 to remove or remediate.
"Multiemployer Plan" has the meaning set forth in Section
15A.1(a).
"Multiple Employer Plan" has the meaning set forth in Section
15A.1(a).
"Nondisclosed Modification Excess" has the meaning set forth in
Section 7.3.
"Notice" has the meaning set forth in Section 17.
"Official Noteholders Committee" means the Official Committee of
secured noteholders appointed in the Bankruptcy Cases.
"Other Property" has the meaning set forth in Section 3.
"Permits" has the meaning set forth in Section 3.3.
"Permitted Exceptions" has the meaning set forth in Section 7B.1.
"Personal Property" means all tangible and intangible personal
property, appliances, apparatus, Cash, notes, contract rights, credit for taxes
paid on account, rights to tax refunds received after the date of the Closing,
furniture, furnishings, fixtures, equipment, machinery, fittings, building
supplies, marketable securities, instruments, checks, insurance policies and
proceeds relating to occurrences occurring after the date of the Closing, gaming
equipment, licenses, player and customer lists, permits, bonds, undertakings,
business, financial and legal books, records, files and documents necessary to
operate the Business, all CRDA investments and obligations, all gaming chips and
tokens, maintenance and repair supplies, tools, Inventory, the ACBA Credit,
Accounts Receivable, room deposits and other articles of personal property or
accounts now or as of the Closing situate on or attached to and used or paid or
received in connection with the Business, excluding the Excluded Assets.
"Petition Dates" has the meaning set forth in the Recitals.
"Phase I" has the meaning set forth in Section 6.3.
"Plan" has the meaning set forth in the Recitals.
"Post-Petition Contracts" means any Contracts entered into by
either ACBA or CPPI on or after the respective Petition Dates for the Bankruptcy
Cases.
"Pre-Closing Period" has the meaning set forth in Section 3A.2.
"Pre-Petition Contracts" has the meaning set forth in Section
3A.1.
"Pre-Petition Leases" has the meaning set forth in Section 3A.1.
"Property" means all of Seller's right, title and interest, if
any, in and to the Land, the Improvements, the Personal Property, the Business,
the Other Property, the Inventory, the Intangible Property, the Cash as well as
any other real estate, improvements thereon and personal property owned by
Seller except for the Excluded Assets.
"Purchase Price" has the meaning set forth in Section 2.1.
"Purchase Price Allocation" has the meaning set forth in Section
2.3.
"Representation Modification Excess" has the meaning set forth in
Section 7.3.
"Review Materials" has the meaning set forth in Section 4.1.
"Ruling" has the meaning set forth in Section 8.1.3.
"Second Quarter Amount" has the meaning set forth in Section
10.2.
"Section 365 Items" has the meaning set forth in Section 3A.
"Seller" has the meaning set forth in the introductory paragraph.
"Seller's Documents" has the meaning set forth in Section 7.1.2.
"Thermal Energy Services Agreement" means that Thermal Energy
Services Agreement dated February 28, 1997 between CPPI and Thermal Energy
Limited Partnership I, as supplemented by a letter agreement of the same date,
and as amended by a first amendment thereto dated April 24, 2000.
"Title Policy" has the meaning set forth in Section 8.1.4.
"Title Report" has the meaning set forth in Section 7B.
"Transaction" has the meaning set forth in the Recitals.
"Wraparound Mortgage" means the Expandable Wraparound Mortgage
and Security Agreement between ACBA, as mortgagor, and CPPI, as mortgagee, dated
as of October 31, 1983, as the same may have been modified or amended from time
to time.
"Wraparound Mortgage Documents" means the Wraparound Note, the
FF&E Notes, the Wraparound Mortgage and the related loan agreement and all
additional documents given as security therefor or otherwise in connection
therewith, as the same may have been modified or amended from time to time.
"Wraparound Note" means the promissory note in the original
principal amount of $127,000,000 dated as of October 31, 1983 given by ACBA to
CPPI, as the same may have been modified or amended from time to time.
2. Agreement to Purchase and Sell; Purchase Price and Escrow
Agreement.
2.1 Agreement to Purchase and Sell. Seller agrees to sell,
assign and transfer the Property to Buyer, and Buyer agrees to purchase the
Property from Seller, upon the terms and subject to the conditions set forth
herein, for a total purchase price of Sixty Five Million and 00/100 U.S. Dollars
($65,000,000.00) (the "Purchase Price").
2.2 Purchase Price/Escrow Agreement. Upon the execution and
delivery of this Agreement by both Buyer and Seller, Buyer will deposit into an
interest-bearing escrow account maintained by Escrow Agent, with a bank or
financial institution satisfactory to Buyer and Seller (the "Escrow Account"),
an xxxxxxx money deposit in the amount of One Million and 00/100 Dollars
($1,000,000) (the "Down Payment"). This Agreement shall not be effective unless
and until the date that the Down Payment has been received by Escrow Agent in
immediately available funds (the "Execution Date"). Upon collection of the Down
Payment, the Execution Date shall be promptly acknowledged in writing by both
parties. The Down Payment shall constitute a deposit to be applied, subject to
the provisions of this Agreement, toward the payment of the Purchase Price. The
Down Payment shall be held and invested by Escrow Agent in accordance with the
provisions of the escrow agreement to be entered into among Seller, Buyer and
Escrow Agent simultaneously with the execution and delivery of this Agreement,
the form of which escrow agreement is attached hereto as Exhibit 2.2 (the
"Escrow Agreement"). All interest earned on the Down Payment shall be paid to
the party entitled to receive the Down Payment pursuant to the terms of this
Agreement. Provided that all contingencies contained in this Agreement have been
satisfied or otherwise waived and Seller has performed all of its obligations
under this Agreement, at the Closing, Buyer shall pay, or cause Escrow Agent to
pay, in immediately available federal funds, to each Seller its allocable share
(pursuant to Section 2.3) of an amount (the "Closing Payment") equal to (i) the
Purchase Price (ii) minus the Down Payment and accrued interest and (iii) plus
or minus any adjustments permitted pursuant to Sections 6.3, 7.3 or any other
adjustment expressly provided for hereunder. Notwithstanding anything herein to
the contrary, all of the following shall be wire transferred in immediately
available federal funds to the Indenture Trustee on or before the Closing Date
in satisfaction of its first priority liens on and security interest in the ACBA
Property and the CPPI Property: (i) the Closing Payment on the Closing Date and
(ii) any post-closing adjustment payable to Seller in accordance with this
Agreement; provided that on the Closing Date the Indenture Trustee shall,
pursuant to an escrow agreement in form and substance satisfactory to Indenture
Trustee, Buyer and Seller, establish an escrow account with funds (and not
distribute same to any secured noteholders or other creditors) from the Closing
Payment equal to the greater of (x) the amount that the Second Quarter Amount
exceeds the net non-cash working capital of the Business as of 5:59 a.m. on the
day that is the last day of the month immediately preceding the Closing Date
plus twenty-five percent (25%) of such excess, if any or (y) $250,000. In
accordance with Section 10.2, if it is determined that there is a post-closing
payment that is owed by Seller to Buyer, then the Indenture Trustee shall pay to
Buyer such amount from the escrowed funds or if it is determined that there is
no post-closing payment that is owed by Seller to Buyer, then the entire amount
of the escrowed funds shall be payable to the Indenture Trustee in satisfaction
of its first priority liens on and security interests in the ACBA Property and
the CPPI Property. The Down Payment and all interest earned thereon payable to
Seller on the Closing Date, or on any other date as provided for in this
Agreement, shall be disbursed by the Escrow Agent to the Indenture Trustee in
satisfaction of its first priority liens on and security interest in the ACBA
Property and the CPPI Property.
2.3 Allocation of the Purchase Price.
A. Buyer and Seller have negotiated in good faith and
agree upon the allocation of Purchase Price and cash proceeds set forth in the
schedule attached hereto as Exhibit 2.3 (the "Purchase Price Allocation"). Buyer
and Seller agree that for purposes of compliance with Code Section 1060 each
will prepare and file IRS Form 8594, Asset Acquisition Statement, with their
income tax returns for the taxable year that includes the Closing Date, in a
manner consistent with the Purchase Price Allocation and this Section 2.3. The
Purchase Price Allocation shall be adjusted to reflect changes between the
Second Quarter Amount (as shown on Exhibit A-3 annexed hereto) and the Closing
Net Non-Cash Working Capital (as determined pursuant to the provisions of
Section 10.2).
B. Notwithstanding anything to the contrary in this
Section 2.3 or Exhibit 2.3, the ACBA Consideration (as defined below) shall be
allocated for federal income tax purposes among the assets of ACBA which are
purchased by Buyer in the following manner:
(i) Furniture, fixtures, equipment and other types of
"section 1245 property" (as defined in Section 1245(a)(3) of the Code), shall be
allocated a portion of the ACBA Consideration equal to $2,459,000.
(ii) Assets other than those subject to allocation
under Subsections B (i) or (iii) shall be allocated a portion of the ACBA
Consideration equal to $1,892,000.
(iii) The balance of the ACBA Consideration (i.e., the
portion remaining after subtracting the allocations required by Subsections B
(i) and (ii), above) shall be allocated entirely to land, building and other
real property improvements.
C. For purposes of this Section 2.3, "ACBA Consideration"
shall mean, in accordance with Section 1.1060-1T(c) of the Treasury Regulations
promulgated under the Code, (i) with respect to ACBA, the amount, in the
aggregate, realized from selling its assets to Buyer pursuant to this Agreement,
and (ii) with respect to Buyer, the amount, in the aggregate, of its cost of
purchasing assets from ACBA pursuant to this Agreement.
3. Other Property Included in Purchase and Sale.
For purposes of this Agreement, all right, title and interest of
Seller, if any, in and to the following (the "Other Property"), to the extent
that the same apply to the Property and are transferable or assignable, shall be
included within the term "Property" and shall be transferred in accordance with
the terms hereof, by Seller to Buyer at the Closing:
3.1 all easements, rights of way, strips, gores, privileges,
licenses, appurtenances and other rights and benefits running with the Land and
Improvements;
3.2 the Designated Section 365 Items and all security deposits
or other deposits held on the Closing Date in connection therewith;
3.3 any certificates of occupancy with respect to the
Improvements and any other licenses (including liquor licenses), certificates
and permits issued by any governmental or quasi-governmental authority to Seller
with respect to the Property, excluding any and all permits that are
non-transferable pursuant to applicable Laws and Regulations (collectively, the
"Permits");
3.4 all future reservations and advance bookings, including
customer deposits with respect thereto, for the use of portions of the Property;
3.5 all telephone exchange numbers;
3.6 the Wraparound Mortgage Documents;
3.7 all Intangible Property; and
3.8 all warranties, guaranties and other contract rights, if
any, with respect to the Property, including any of the property described in
Sections 3.1 through 3.7 above.
3A. The Existing Leases and the Contracts.
3A.1 The parties acknowledge that any Contacts entered into by
either ACBA or CPPI prior to the respective Petition Dates for the Bankruptcy
Cases ("the "Pre-Petition Contracts") are "executory contracts" pursuant to
Section 365 of the Bankruptcy Code and that any Existing Leases entered into by
either ACBA or CPPI prior to the respective Petition Dates for the Bankruptcy
Cases (the "Pre- Petition Leases") are "unexpired leases" pursuant to Section
365 of the Bankruptcy Code meaning, among other things, that the Seller may
reject the Pre-Petition Contracts and the Pre-Petition Leases (together with any
contracts or leases executed in accordance with Section 3A.3 hereof, being
sometimes hereinafter collectively referred to as the "Section 365 Items").
Seller shall provide to Buyer a schedule of all of the Section 365 Items (which
shall include information, if any, known to Seller relating to present and
uncured defaults by Seller or the other party to the contract or lease for each
Section 365 Item) on or before thirty (30) days after the Execution Date. Within
fifteen (15) days after Buyer's receipt of the schedule of Section 365 Items,
Buyer shall give Seller written notice (the "Assumption Notice") of any Section
365 Items it desires Seller to assume (the "Designated Section 365 Items"). Upon
the Bankruptcy Court approving such assumption, Buyer shall cure all defaults
and, subject to Seller's obligation under Section 3A.2, be responsible for all
future obligations existing or accruing from and after the Petition Dates
arising out of the Designated Section 365 Items and no other Section 365 Items;
provided, however, that if Buyer does not deliver the Assumption Notice to
Seller within such fifteen (15) day period, then Buyer shall be deemed to have
elected to assume all of the Section 365 Items and shall cure all defaults and
be responsible for all future obligations existing or accruing from and after
the Petition Dates arising out of the Section 365 Items. Notwithstanding
anything to the contrary contained herein, Buyer shall, as a condition to
Seller's obligations hereunder, be required to assume each of the following: (a)
all Contracts and Existing Leases executed subsequent to the Petition Dates and
prior to the Execution Date, (b) all Contracts and Existing Leases executed on
and after the Execution Date, subject to the terms and condition of this
Agreement, in the ordinary course of business consistent with prior practices,
(c) the Thermal Energy Services Agreement, (d) the Employee Agreements, (e)
ACBA's liabilities under the Wraparound Mortgage Documents, and (f) the
responsibility for all obligations and the related security agreements of Seller
to and with Micros Leasing, Simplex Time Recorder Company and Diebold Credit
Corporation.
3A.2 Between the Execution Date and the Closing Date (the
"Pre-Closing Period"), Seller will perform all of its obligations on all
Designated Section 365 Items accruing during the Pre-Closing Period and pay all
sums due under the Designated Section 365 Items, all in the ordinary course of
business consistent with prior practice.
3A.3 During the Pre-Closing Period, Seller will not assume,
renew, exercise an option to extend or otherwise agree to modify the Existing
Leases or Contracts, or enter into any other agreements, contracts or leases
except in the ordinary course of business consistent with prior practice or
otherwise with the prior consent of the Bankruptcy Court. Notwithstanding
anything herein to the contrary, Seller shall not enter into any contract or
agreement or modify, extend, renew, or assume the Existing Leases or Contracts
if same will bind Buyer after the Closing and will either (i) result in an
obligation or liability to Seller, in each instance, for each such lease,
contract or agreement, of $100,000 or more, or (ii) extend the term of the
Contracts or Existing Leases for more than twelve (12) months, without the prior
written consent of Buyer, which consent may not be unreasonably withheld,
delayed or conditioned. Notwithstanding the foregoing, however, in no event
shall Seller be required to seek Buyer's consent to any extension, modification,
renewal or assumption of any Existing Leases or Contracts if the subject
Existing Lease or Contract does not provide Seller with any right to consent to
the action so taken. Upon written notice to Buyer and Buyer's receipt of such
lease, contract or agreement, Buyer shall have fifteen (15) days to deliver to
Seller its written approval or disapproval in accordance with this Agreement;
failure by Buyer to so deliver Seller its approval or disapproval on or before
such fifteenth (15th) day shall be deemed to be an affirmative approval by
Buyer. This Section 3A.3 shall not apply to any employment contracts or
agreements with any Employee.
3A.4 During the Pre-Closing Period, with respect to any
Designated Section 365 Item which can be assigned only upon the consent of a
third party not obtained in connection with, or otherwise deemed received upon
entry of, the Confirmation Order, Seller will undertake reasonable efforts to
obtain such consent if Buyer notifies Seller of its intent to have Seller assume
any such Designated Section 365 Item and assign them to Buyer on the Closing
Date. However, to comply with the foregoing commitment, Seller will not be
required to pay any consideration, incur any out-of-pocket expenses or commence
any litigation or other legal proceedings in order to obtain consent to an
assignment. In no event, however, shall the receipt of any consent relating to
the transfer of any Designated Section 365 Item be a condition to the Closing or
the performance of Buyer's obligations hereunder.
3B. Security Interests.
3B.1 The Bankruptcy Court by its orders has confirmed that the
Indenture Trustee has first priority liens and security interests in the
Property, except for (i) certain cash as to which all interested parties have
reserved their rights, pursuant to orders issued in the Bankruptcy Cases and
further pursuant to the Global Stipulation and Order dated December 21, 1999,
and has granted to the Indenture Trustee certain additional replacement liens
and (ii) certain equipment subject to purchase money security interests as set
forth in Exhibit 7.1.9. Nothing herein shall (a) adversely affect the rights of
the Indenture Trustee with respect to such liens and security interests in, or
its rights as Indenture Trustee with respect to, the Property or the Collateral
(as defined in the Indenture) and the proceeds thereof under the Indenture, the
Related Documents (as defined in the Indenture), the Bankruptcy Court's orders
or applicable law, (b) be construed or implied to be a representation or
warranty by Seller in any way relating to such security interests or liens or
(c) affect any of the liens or encumbrances on the Property that are either
Permitted Exceptions or those items listed on Exhibit 7.1.9 including, but not
limited to, those liens held by Micros Leasing, Simplex Time Recorder Company
and Diebold Credit Corporation, the liability of which shall be assumed by
Buyer.
4. Documents and Information Furnished by Seller; Confidentiality of
Transaction.
4.1 Review Materials. Buyer has received or will receive from
Seller certain non-public information and documentation in connection with
Buyer's evaluation of the Transaction, including, without limitation, the
Existing Leases, the Contracts and other materials relating to the ownership,
construction, renovation, leasing and operation of the Property (collectively,
the "Review Materials"). The Review Materials and all other materials, books and
records examined by or on behalf of Buyer pursuant to this Agreement shall: (i)
be held in strict confidence by Buyer and Buyer's Agents, (ii) not be used for
any purpose other than the investigation and evaluation of the Property and
Business by Buyer and Buyer's Agents, and (iii) not be disclosed, divulged or
otherwise furnished to any other person or entity except Buyer's Agents. If this
Agreement is terminated for any reason whatsoever, Buyer shall promptly return
to Seller all of the Review Materials in the possession of Buyer and Buyer's
Agents.
4.2 Confidentiality of Transaction. Seller and Buyer agree
that the Transaction shall remain strictly confidential and that no press or
other publicity release or communication to the general public in connection
with the Transaction shall be issued until after the Closing without the other
party's prior written approval. Notwithstanding anything to the contrary
contained herein, (a) Seller may disclose to the Bankruptcy Court information
not contained in this Agreement and otherwise relating to the Transaction that
is required by the Bankruptcy Court or that Seller deems prudent to disclose to
the Bankruptcy Court, provided that in all such events that the Seller shall
petition or request the Bankruptcy Court to seal or not disclose such
information to any other parties, and (b) Seller may disclose information
relating to the Transaction if it is legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil investigative demand or
similar process) to be disclosed, provided that Seller notifies Buyer of same
upon receipt of such requests prior to disclosing the requested information. All
information, studies and reports relating to the Property obtained by Buyer
either by the observations and examinations of Buyer's Agents or as disclosed to
Buyer or Buyer's Agents by Seller shall, to the extent not otherwise available
to the general public, remain strictly confidential, and shall not be disclosed
to anyone other than Buyer or Buyer's Agents and shall be used by Buyer solely
to evaluate the purchase of the Property or to arrange financing in connection
with the purchase of the Property. Upon a termination of this Agreement, Buyer
shall promptly deliver to Seller, at no cost to Seller, all such information,
reports and studies. Notwithstanding the foregoing, the parties may make
disclosures reasonably required to obtain consents and approvals referred to in
this Agreement and as may be required by Laws and Regulations, and Seller and
its affiliates may disclose to its or their creditors and the Bankruptcy Court
the existence of the Transaction.
4.3 Notwithstanding anything contained in this Section to the
contrary, Buyer shall have no obligation to maintain the confidentiality of any
information that:
(a) can be shown in writing to have been already known by
Buyer at the time of disclosure of the Review Materials;
(b) was available to Buyer on a non-confidential basis
from a source other than Seller or its advisors, provided that such source was
not known by Buyer to be bound by a confidentiality agreement regarding the
Business or Seller;
(c) at the time of disclosure or thereafter was generally
available to and known by the public (other than as a result of a disclosure in
violation of this confidentiality provision directly or indirectly by Buyer);
(d) is or has been independently acquired or developed by
Buyer without violating any obligations of this Section; and
(e) is legally compelled (by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar process)
to be disclosed by Buyer, provided that Buyer notifies Seller of same prior to
disclosing the requested information.
4.4 Survival. The provisions of this Article 4 shall survive
the termination of this Agreement.
5. Assumption of Liabilities.
5.1 Effective on the Closing Date, provided that Seller has
performed its obligations under this Agreement, Buyer shall assume the
Liabilities, but shall not assume any of the following to the extent such items
would have otherwise been included in the Liabilities:
(a) any Liabilities incurred during the Pre-Closing Period
not in the ordinary course of business consistent with prior practice (unless
otherwise approved by Buyer); and
(b) any Section 365 Items not designated or not deemed
designated by Buyer.
6. Buyer's Inspection of the Business and Property.
6.1 As a material inducement to Seller to execute this
Agreement, Buyer acknowledges, represents and warrants that (i) prior to the
date of this Agreement, Buyer has examined and inspected the Property and the
Business, including the construction, renovation, operation and leasing of the
Property, together with the Contracts, the Permits, and the Existing Leases,
(ii) Buyer will accept and will be fully satisfied in all respects with the
foregoing and with the physical condition, state of title (subject to the
provisions of Section 7B.1 hereof), including, but not limited to the liens and
security interests of the Indenture Trustee which will, upon consummation of the
Transaction, attach to the proceeds (i.e., the Purchase Price), value, financing
status, use, leasing, operating, tax status, income and expenses of the Property
and the Business, (iii) the Property and Business will be purchased by Buyer "as
is" and, upon Closing, Buyer shall assume responsibility for the physical
condition of the Property and all Liabilities in accordance with the provisions
of this Agreement, and (iv) Buyer will have decided to purchase the Property
solely on the basis of its own independent investigation. Seller has not made,
does not make, and has not authorized anyone else to make any representation as
to the present or future physical condition, state of title, value, financing
status, use, leasing, operation, use, tax status, income and expenses or any
other matter or thing pertaining to the Property except as expressly set forth
herein, and Buyer acknowledges that no such representation has been made and
that in entering into this Agreement it does not rely on any representation
other than those expressly set forth herein. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR
ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF
THE PROPERTY. Seller shall not be liable for or bound by any verbal or written
statements, representations, real estate broker's "setups" or information
pertaining to the Property furnished by any real estate broker, agent, employee,
servant or any other person unless the same are specifically set forth herein.
6.2 Inspection. From and after the Execution Date but subject
to the limitations and restrictions set forth in this Section 6.2, Seller shall
permit Buyer and Buyer's Agents to enter upon the Land and Improvements at all
reasonable times during normal office business hours, to continue to inspect the
Land and Improvements and continue to conduct such tests that Buyer deems
reasonable which are approved by Seller, which approval shall not be
unreasonably withheld. Such tests may include but are not limited to surveys,
test borings, structural and systems engineering studies, environmental and
other inspections which the Buyer may deem necessary, including without
limitation any tests, studies or inspections necessary to determine the surface
and subsurface condition of the Land and to finish any work necessary to
complete site and engineering plans for Buyer's intended use. Buyer shall notify
Seller, in writing, of its intention, or the intention of Buyer's Agents, to
enter the Land and Improvements at least twenty-four (24) hours prior to such
intended entry, and shall obtain Seller's prior written consent to any test
(including, but not limited to, the location of such test) to be conducted.
Buyer shall bear the cost of all such inspections and tests. At Seller's option,
Seller may be present for any inspection or test. Seller shall make available to
Buyer all of the Review Materials, including without limitation documents,
reports and the like in Seller's possession that may be requested by Buyer
relating to the physical condition and ownership of the Land and Improvements as
well as the financial condition and operation of the Business. Buyer shall hold
all information and knowledge acquired pursuant to this Section 6.2 in
accordance with the provisions of Section 4 of this Agreement. Notwithstanding
anything to the contrary contained herein, Buyer's acknowledgements,
representations and warranties contained in Section 6.1 hereof shall not be
affected or otherwise diminished in any way by the inspection rights granted to
Buyer under this Section 6.2 or by the results of any such inspection.
6.3 Beginning on the Execution Date and expiring on the
thirtieth (30th) day after the Execution Date (as the same may be extended
strictly in accordance with this Section 6.3, the "Environmental Inspection
Period"), Seller shall permit Buyer and an independent third party hired by
Buyer to enter upon the Land and Improvements at all reasonable times during
normal office business hours (subject to the restrictions and limitations set
forth in Section 6.2 and this Section 6.3), to conduct a phase I environmental
assessment ("Phase I") of the Land and Improvements at Buyer's sole risk and
expense. If the Phase I identifies the existence of a Material Environmental
Condition at the Land or Improvements, Buyer shall have the option, to be
exercised by written notice given to Seller prior to the expiration of the
Environmental Inspection Period, to extend the Environmental Inspection Period
for one additional period of thirty (30) days in order to perform such
additional inspections and tests as deemed necessary by Buyer (which tests shall
be performed in accordance with the restrictions and limitations set forth in
this Section 6). Buyer shall provide a copy of the Phase I report and any other
report regarding subsequent testing and inspections to Seller (at no cost to
Seller) prior to the expiration of the Environmental Inspection Period. If the
Phase I or subsequent testing and inspections either (i) identifies any Material
Environmental Condition, and if Seller is unwilling to deduct from the Purchase
Price the amount by which the estimated remediation or removal costs associated
with the Material Environmental Condition exceeds $5,000,000, or (ii) identifies
a Material Environmental Condition that is reasonably anticipated by Buyer and
Seller to cause a cessation of the operation of the Casino in excess of 30
consecutive Business Days commencing after the Closing Date, and if Seller is
unwilling to deduct from the Purchase Price (i) the amount by which the
estimated remediation or removal costs associated with such Material
Environmental Condition plus (ii) the amount of the estimated lost Casino
profits (to be estimated based upon a trailing 12 month average of profits
generated from the Casino) during such period of cessation of Casino operations
exceeds, in the aggregate, $5,000,000, then Buyer may, in its sole and absolute
discretion, elect to terminate this Agreement. Buyer's right to terminate this
Agreement pursuant to this Section 6.3 shall be exercised by giving Seller
written notice of its intent no later than the expiration of the Environmental
Inspection Period (as the same may be extended pursuant to this Section 6.3)
(the "Environmental Termination Notice") and shall be effective on the tenth
(10th) Business Day thereafter unless Seller delivers to Buyer, no later than
five (5) Business Days after receipt of the Environmental Termination Notice, a
written notice stating that either: (i) Seller disputes the cost or scope of the
required remediation or Buyer's estimate of the length of the anticipated
closure of the Casino to effectuate such remediation or removal, or (ii) Seller
agrees to either (x) reduce the Purchase Price by the amount by which the
removal or remediation costs set forth in the Environmental Notice relating to
the Material Environmental Condition, together with the estimated lost profit
from the Casino, if applicable, exceeds, in the aggregate, $5,000,000 (the
"Environmental Liability Excess") or (y) reflect the Environmental Liability
Excess as a liability on the Closing Net Non-Cash Working Capital Statement. In
the event that Seller and Buyer are unable to mutually agree on the cost or
scope of the removal or remediation of the claimed Material Environmental
Condition disclosed in the Phase I or subsequent testing or inspections by a
date which is no later than 10 Business Days after Seller's receipt of the Phase
I report or the anticipated closure of the Casino, if applicable, in connection
with such removal or remediation, Buyer and Seller shall promptly submit all
documents necessary to enable the Bankruptcy Court to make such determination
pursuant to Section 18.7 hereof. If Buyer does not deliver the Environmental
Termination Notice to Seller prior to the expiration of the Environmental
Inspection Period, Buyer shall be deemed to have waived its right to terminate
this Agreement pursuant to this Section 6.3, or if the Phase I or subsequent
testing and inspections do not identify a Material Environmental Condition, such
right to terminate under this Section 6.3 shall be deemed deleted and this
Agreement shall continue in effect subject to the other provisions hereof. In
the event that this Agreement is terminated in accordance with the provisions of
this Section 6.3, the Down Payment and interest accrued thereon shall be
returned to Buyer and neither party shall have any further liability to the
other party, except with respect to the covenants, representations and
warranties contained in Sections 4, 6.5 and 13.
6.4 Buyer's Responsibilities. In conducting any inspections,
investigations or tests on the Land and Improvements, Buyer and its agents and
representations shall: (i) not interfere with the operation and maintenance of
the Business, the Land and the Improvements; and (ii) restore the Land and
Improvements to the condition in which the same was found before any such
inspection or test was undertaken.
6.5 Buyer's Indemnification. Notwithstanding anything to the
contrary contained in this Agreement, any investigation or examination of the
Land, the Improvements or the Business and the agreements, documents and
materials pertaining thereto performed by Buyer or Buyer's Agents prior to the
Closing shall be performed at the sole risk and expense of Buyer, and Buyer
shall be solely responsible for the acts or omissions of any of Buyer's Agents
brought on, or to, the Land or Improvements by Buyer. In addition, Buyer shall
defend, indemnify and hold Seller harmless from and against all loss, cost,
expense (including, but not limited to, reasonable attorneys' fees and court
costs arising from the enforcement of this indemnity), damage and liability
resulting from claims for personal injury, wrongful death, property damage or
any other liability or damage against Seller or any of the Property arising from
or as a result of, any act or omission of Buyer or Buyer's Agents in connection
with any inspection or examination of the Property and the agreements, documents
and materials pertaining thereto by Buyer or Buyer's Agents. The provisions of
the foregoing sentence shall survive the Closing or the earlier termination of
this Agreement.
7. Representations, Warranties and Covenants.
7.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties to Buyer it being understood,
acknowledged and agreed that for purposes of this Agreement, ACBA shall only be
deemed to make representations and warranties with respect to itself and the
portion of the Property owned by ACBA and CPPI shall only be deemed to make
representations and warranties with respect to itself and the portion of the
Property owned by CPPI:
7.1.1 (a) ACBA is a limited partnership duly organized under the
laws of the State of New Jersey and has all requisite power and authority to
carry on the business and to own the property that it now carries on and owns.
(b) CPPI is a corporation duly organized under the laws of
the State of New Jersey and has all requisite power and authority to carry on
the business and to own the property that it now carries on and owns.
7.1.2 Subject to the approval of this Agreement as part of a
reorganization plan confirmed by the Bankruptcy Court, the execution, delivery
and performance of this Agreement and all other documents, instruments and
agreements now or hereafter to be executed and delivered by Seller pursuant to
or in connection with this Agreement (collectively, "Seller's Documents") are
within the partnership power of ACBA and the corporate power of CPPI. Subject to
the approval of this Agreement as part of a reorganization plan approved by the
Bankruptcy Court, this Agreement constitutes, and at the Closing Seller's
Documents will constitute, the legal, valid and binding obligations of Seller,
enforceable against ACBA and CPPI, as applicable, in accordance with their
respective terms. Subject to the approval of this Agreement as part of a
reorganization plan approved by the Bankruptcy Court, the execution, delivery
and performance by Seller of Seller's Documents will not violate any law, order,
rule, regulation, judgment, order, decree, writ or injunction applicable to ACBA
and CPPI, as applicable. Except for compliance with governmental consents
required in connection with the transfer of the Permits to Buyer or consents of
the Bankruptcy Court in connection with the Bankruptcy Cases, no consent or
approval by any governmental authority is required in connection with the
execution, delivery and performance by Seller of any of Seller's Documents.
7.1.3 Neither ACBA nor CPPI is a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended.
7.1.4 Seller has not given nor has Seller received any written
notice of a material post- petition default under the Existing Leases which
remains uncured (the foregoing does not apply to any delinquencies in the
payment of monthly rent which have existed for less than thirty (30) days),
except as set forth in the schedule attached hereto as Exhibit 7.1.4 which sets
forth the payment status of all Existing Leases, nor to the best of Seller's
knowledge are there any existing facts or circumstances that with the giving of
notice, the passage of time, or both, could result in such material default.
Exhibit B attached hereto lists all of the Existing Leases binding upon Seller
as lessor as of the date hereof.
7.1.5 Seller has not given nor has Seller received any written
notice of a material post- petition default under any of the Contracts which
remain uncured except as set forth in Exhibit 7.1.5. Exhibit D attached hereto
lists all of the Post-Petition Contracts binding upon Seller as of the date
hereof.
7.1.6 Seller shall apply for an order from the Bankruptcy Court
fixing a bar date for filing post-petition claims in the Bankruptcy Cases and
shall comply with the notice provisions contained in that order.
7.1.7 That from and after the date hereof, Seller shall not
disclose its player and customer lists and records, and related marketing plans
to any unrelated third party, except (i) as required by the Bankruptcy Court
with respect to the Bankruptcy Cases or (ii) for disclosures made for purposes
of obtaining prospecting lists under confidentiality agreements in the ordinary
course of business.
7.1.8 Seller has not received any written notice (which remains
uncured) from any governmental authority stating that the Property violates any
Laws and Regulations in any material respect, nor to the best of Seller's
knowledge, are there any existing facts or circumstances that with the giving of
notice, the passage of time, or both, could be reasonably anticipated to result
in such violation, except regarding CPPI's liability to the State of New Jersey
for unredeemed chip and token balances.
7.1.9 That at the Closing, the Property, including the Land and
the Personal Property, will be transferred in accordance with the provisions of
this Agreement and pursuant to the Confirmation Order to Buyer free and clear of
all liens, encumbrances, claims, and ownership interests (including but not
limited to the first priority liens and security interests held by the Indenture
Trustee as described in Section 3B.1) other than the Permitted Exceptions and
any other encumbrances or interests set forth on Exhibit 7.1.9, unless expressly
otherwise provided in this Agreement or agreed to by Buyer; provided, however,
the parties acknowledge and agree that the liens on the Property held by the
Indenture Trustee will, upon consummation of the Transaction, attach to the
proceeds of the Property (i.e., the Purchase Price) and such proceeds shall be
paid to the Indenture Trustee in accordance with Section 2.2.
7.1.10 That during the Pre-Closing Period, Seller will conduct
the Business in the ordinary course consistent with past practice.
7.1.11 That during the Pre-Closing Period, Seller will not enter
into any employment contracts or agreements with any Employee, oral or written,
nor will Seller increase the compensation of any Employee, except for annual
merit or longevity increases in the ordinary course of business consistent with
past practice but which in no event shall exceed 10% of annual compensation or
as required by any collective bargaining agreement. Notwithstanding the
foregoing, Seller shall extend the Employee Agreements and provide retention
bonuses for key employees both in accordance with the Approving Order, and Buyer
acknowledges and agrees that Seller has applied to the Bankruptcy Court
therefor. Seller will not make any bonus payments or the like to any Employees
prior to or on the Closing Date without the prior approval of the Bankruptcy
Court or as otherwise contemplated in the Approving Order. Notwithstanding
anything herein to the contrary, but subject to the approval of the Bankruptcy
Court in connection with the Bankruptcy Cases, if any Employee under an existing
written employment contract or agreement with either ACBA or CPPI ceases to be
an Employee, whether voluntarily or otherwise, at any time after the Execution
Date, and if Seller, in Seller's reasonable judgment, requires that a
replacement employee be retained in order to continue the operation and
management of the Business in accordance with past practices, then Seller may
enter into such replacement employment contract or agreement provided that Buyer
gives its prior written consent, which consent may not be unreasonably withheld,
delayed or conditioned.
7.1.12 That during the Pre-Closing Period, CPPI will maintain the
Property in good repair and condition, reasonable wear and tear excepted, and
shall prevent waste and/or dissipation of the Property, all in the ordinary
course of business consistent with past practice. However, Seller shall have no
obligation to undertake any capital improvements following the Execution Date,
except those capital improvements necessary to prevent any waste or dissipation
of any asset all in the ordinary course of business consistent with past
practice;
7.1.13 Seller has received no written notice that the present use
and operation of the Land and Improvements is in material violation of any
existing environmental, zoning, flood control and other land use regulations
applicable to the Land, and to the best of Seller's knowledge, Seller has
received no written notice of any present proposal by any governmental authority
or any private party or entity which could reasonably be anticipated to affect
the continued authorization of the present use and operation of the Land in a
manner which would have a material and adverse affect on the value or operation
of the Land;
7.1.14 That to the best of Seller's knowledge (i) there are no
existing or pending (a) plans to widen, modify or realign any street or highway
adjacent or appurtenant to the Land or (b) eminent domain proceedings that would
materially affect the Land, and (ii) Seller has not received any written notice
of intended public improvements which would result in any material charge being
levied or assessed against, or in the creation of any lien upon, the Land;
7.1.15 That the Land and Improvements are connected to and
serviced by water, sewage disposal, gas and electrical facilities that are
adequate for the present use of the Land and Business;
7.1.16 That Seller has received no written notice from any
governmental authority, any insurance company, any board of fire underwriters,
or other body exercising similar functions requiring any material repairs to or
replacements of any Improvements, nor to the best of Seller's knowledge, has
Seller done or omitted to take any action that would reasonably be anticipated
to result in any such notice, except for a fire inspection notice regarding
repairs to the steps in the garage;
7.1.17 That Seller holds all Permits necessary to operate the
Business as it is presently operated. Seller shall not modify or rescind any of
the Permits prior to the Closing except as in the ordinary course of business
consistent with past practice, and shall use good faith efforts to obtain any
renewal or extension of the Permits as may be required by law in the ordinary
course of business consistent with past practice;
7.1.18 Seller has received no written notice that there are any
actions or proceedings pending or threatened against Seller, the Land, the
Improvements or the Business before any court or administrative agency in any
way connected with or relating to the Property, the Improvements or the Business
that would materially and adversely affect Seller's ability to perform under
this Agreement other than actions filed with the Bankruptcy Court in connection
with the Bankruptcy Cases;
7.1.19 Seller has received no written notice that there are any
material investigations, or proceedings, either currently in progress or
expected to be instituted in the future, by any administrative agency, whether
local, state, or federal relating to the Land, the Improvements or the Business;
7.1.20 Seller will expeditiously take such actions as are
required to consummate the Transaction on the Closing Date;
7.1.21 To the best of Seller's knowledge, no fact or circumstance
presently exists which could render any of Seller's representations and
warranties contained in Section 7.1 materially untrue; and
7.1.22 Exclusive of any rights to severance payments under the
employee manuals and policies, there are no employee agreements, other than the
Employee Agreements, that require severance payments or other benefits to be
paid to any Employee severed as a result of the transfer of the Property from
Seller to Buyer or otherwise resulting from the change of control of ownership
of the Business.
7A.1 LNA Contingency. At or prior to Closing, Seller shall
provide Buyer with a Letter of Non-Applicability ("LNA") from the New Jersey
Department of Environmental Protection ("NJDEP"), evidencing that the Industrial
Site Recovery Act (N.J.S.A. 13:1K-6, et seq.) ("ISRA") does not apply to the
Transaction. CPPI shall use commercially reasonable efforts to obtain the LNA.
CPPI shall pay the filing fee in connection with the LNA. If, for whatever
reason, CPPI does not obtain the LNA by the Closing Date, as said date may be
extended as hereinafter provided, Buyer's sole remedy shall be to terminate this
Agreement by notice to Seller, in which event the Down Payment and interest
accrued thereon shall be returned to Buyer and neither party shall have any
further liability to the other party, except with respect to the covenants,
representations and warranties contained in Sections 4, 6.5 and 13; provided,
however, that in the event the LNA is not issued due to a material violation of
existing Environmental Laws which was known to Seller on the date hereof
(except, if in the reasonable opinion of Seller, such violation was not
anticipated to cause the LNA to be denied), then in addition to the Down Payment
and all interest accrued thereon, Buyer shall also be entitled to reimbursement
from CPPI of all reasonable costs and expenses, including reasonable attorneys'
fees, that Buyer incurred during the Pre-Closing Period in connection with the
Transaction. Seller shall use commercially reasonable efforts to procure the
LNA, but in no event shall Seller have any obligation to do an act, file any
instrument or expend any sum in connection with or as a result of ISRA, except
as hereinabove expressly set forth; and in no event whatsoever shall Seller be
required to expend any money other than the ISRA filing fee in connection with
or as a result of ISRA, including, without limitation, Sellers' procurement of
the LNA. Buyer agrees that it shall cooperate with Seller, by executing any and
all affidavits reasonably required by Seller or by the NJDEP in connection with
obtaining the LNA. If CPPI is unable to obtain the LNA on or before the Closing
Date despite diligent good faith efforts on the part of CPPI, Seller shall have
the right to extend the Closing Date for a reasonable period of time (not to
exceed the 270th day from the Execution Date) so that CPPI may procure the LNA
prior to the Closing. CPPI agrees to copy Buyer with all correspondence to the
NJDEP relating to Seller's efforts to obtain the LNA pursuant to this Section
7A.
7B.1 Real Property Title Report Contingency.
(a) Buyer has obtained a title report relating to the Land
(the "Title Report") prior to the date hereof. Buyer shall have ten (10)
Business Days after the Execution Date to object to any of the title exceptions
listed thereon by written notice to Seller. These title exceptions as well as
other exceptions to title which arise after the Execution Date and are
objectionable to Buyer, shall be referred to as the "Title Objections". In no
event however, shall (i) any item listed on Exhibit 7B.1 annexed hereto, (ii)
any standard exception in the ALTA Form Title Policy which is not permitted to
be removed by law, or (iii) any title matter that will be cured upon the filing
of the Confirmation Order, constitute a Title Objection (items (i) and (ii) are
sometimes hereinafter collectively referred to as the "Permitted Exceptions").
(b) Seller will use commercially reasonable efforts to
remove all of the Title Objections on or prior to the Closing Date. However, to
comply with the foregoing covenant, and in order to effectuate such removal,
Seller will not be required to (i) pay more than an aggregate of $100,000 in
consideration and out-of-pocket expenses to cure any monetary liens, judgments
or similar encumbrances on the Property having an aggregate liquidated value of
$100,000 or less, or to expend such amounts if, after such expenditure, there
will be Title Objections that will remain uncured that Seller is not otherwise
obligated to cure or remove hereunder and that are not waived or otherwise
accepted by Buyer, (ii) pay to cure any monetary liens, judgments or similar
encumbrances on the Property having an aggregate liquidated value of over
$100,000, or (iii) commence any litigation or other legal proceeding, other than
any administrative filings required in connection with the cure or removal of
the items required to be paid under subsection (i) above. If Seller, after
taking such action, is unable to remove all the Title Objections on or before
the Closing Date, it shall so notify Buyer in writing. Provided that Seller has
commenced the cure of the Title Objections and is prosecuting the cure of the
same in a commercially reasonable manner, the Closing Date shall be extended for
a period not to exceed sixty (60) days to enable Seller to remove the Title
Objections. In the event that the Title Objections are not removed during such
extension period, this Agreement will, at the option of Buyer, or at the option
of Seller provided Seller did not act in bad faith and used commercially
reasonable efforts to remove the Title Objections, terminate effective as of the
date either party gives notice to the other to terminate in which event the Down
Payment and interest received thereon shall be returned to Buyer, and neither
party shall have any further liability to the other party, except with respect
to the covenants, representations, warranties and indemnities set forth in
Sections 4, 6.5 and 13. If this Agreement is terminated due to Seller's failure
to remove the Title Objections, Seller shall pay the costs of the title search.
Notwithstanding, the foregoing, Buyer may elect, in its sole discretion, in
writing delivered to Seller, to waive the removal of any Title Objection from
the Title Policy in which case the Transaction will proceed without any
reduction in the Purchase Price. Notwithstanding anything to the contrary
contained in this Section, Seller may, as an alternative to causing any Title
Objection to be satisfied of record and provided that the Title Company agrees
to omit such Title Objection from the Title Policy: (i) bond or cause to be
bonded such Title Objection, (ii) deliver or cause to be delivered to Buyer or
the Title Company, on the date of the Closing, instruments in recordable form
and sufficient to satisfy such Title Objection of record, together with the
appropriate recording or filing costs, (iii) deposit or cause to be deposited
with the Title Company sufficient monies, acceptable to and reasonably requested
by the Title Company, to insure the obtaining and recording of a satisfaction of
the Title Objection, or (iv) otherwise cause the Title Company to omit such
Title Objection from the Title Policy.
7.2 Intentionally Omitted.
7.3 Limitation of Seller's Representations. The
representations of Seller contained in Section 7.1 are made as of the date
hereof. Prior to the date of the Closing and promptly upon learning of same,
Seller shall notify Buyer of any modifications to such representations or any
other representation, warranty or covenant contained elsewhere in this Agreement
and the schedules and exhibits annexed hereto which are required, as the result
of additional information coming to the knowledge of Seller or on account of the
operation and management of the Property between the date hereof and the
Closing, in order to make such representations, warranty or covenant and/or the
schedules and exhibits annexed hereto true in all material respects. In the
event the resulting cost or liability as required to be borne by Buyer arising
from or in connection with any such modification can, in the reasonable opinion
of Seller and Buyer, be estimated to exceed, in the aggregate, Five Million
Dollars ($5,000,000.00) (the "Representation Modification Excess"), in cost or
liability to Buyer, Buyer may elect to terminate this Agreement unless Seller
agrees to either (x) deduct the Representation Modification Excess from the
Purchase Price or (y) reflect the Representation Modification Excess as a
liability on the Closing Net Non-Cash Working Capital Statement. In the event
that Buyer and Seller are unable to mutually agree on a determination of the
resulting cost or liability required to be borne by Buyer arising from or in
connection with such modifications within fifteen (15) days from the date Buyer
is notified of such modification, Buyer and Seller shall promptly submit all
documents necessary to enable the Bankruptcy Court to make such determination
pursuant to Section 18.7 hereof. If Buyer terminates this Agreement pursuant to
the immediately preceding sentence, the Down Payment and all interest earned
thereon shall be delivered to Buyer and the parties shall be released from all
further obligations and liabilities under this Agreement, except with respect to
the covenants, representations, warranties and indemnifications set forth in
Sections 4, 6.5 and 13. Notwithstanding the foregoing, in the event that such
modification to representations, schedules and exhibits was known to Seller on
the date hereof and not disclosed to Buyer, and the resulting cost or liability
required to be borne by Buyer arising from or in connection with any such
modification can, in the reasonable opinion of Seller and Buyer (subject to the
Bankruptcy Court's right, if necessary, to make such determination as set forth
above), be estimated to exceed, in the aggregate, Two Million Five Hundred
Thousand Dollars ($2,500,000.00) (the "Nondisclosed Modification Excess"), and
should Seller not agree to either (x) deduct
such Nondisclosed Modification Excess from the Purchase Price or (y) reflect the
Nondisclosed Modification Excess as a liability on the Closing Net Non-Cash
Working Capital Statement, Buyer may, at its sole option, terminate the
Agreement. In the event that Buyer terminates this Agreement pursuant to the
immediately proceeding sentence, in addition to the return of the Down Payment
and accrued interest thereon, Buyer shall also be entitled to reimbursement from
CPPI of all reasonable costs and expenses, including reasonable attorneys' fees,
that Buyer incurred during the Pre-Closing Period in connection with the
Transaction and the parties shall be released from all further obligations and
liabilities with respect to this Agreement, except with respect to the
covenants, representations , warranties and indemnifications set forth in
Sections 4, 6.5 and 13. Where representations and warranties are made in this
Agreement that are expressly to the "best of Seller's knowledge," such phrase
shall mean and be limited to the statement that there is no fact or circumstance
contrary to such representation or warranty within the actual knowledge of, or
included in a written notice received or sent by Xxxxx X. Xxxxxx, Xx., Xxxxxx X.
Xxxxxxx, Xxxx Xxxxxx or Xxxxx X. Xxxxxxx or the directors of the board of CPPI.
7.4 Representations and Warranties of Buyer. Buyer makes the
following representations and warranties to Seller:
7.4.1 Buyer is a corporation duly constituted, validly
existing and in good standing under the laws of the State of Delaware. Buyer has
all requisite power and authority to carry on its business and to own the
property that it now carries on and owns.
7.4.2 The execution, delivery and performance of this
Agreement and all other documents, instruments and agreements now or hereafter
to be executed and delivered by Buyer pursuant to or in connection with this
Agreement (collectively, "Buyer's Documents") are within the power of Buyer and
have been duly authorized by all necessary or proper action. This Agreement
constitutes, and at the Closing Buyer's Documents will constitute, the legal,
valid and binding obligations of Buyer, enforceable against it in accordance
with their respective terms, except to the extent enforceability may be limited
by bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles affecting creditors' rights in general. The execution,
delivery and performance by Buyer of Buyer's Documents will not (i) conflict
with, or result in any breach or violation of or default (or give rise to any
right of termination, cancellation or acceleration) under any note, bond,
indenture, lease, license, permit, agreement or other instrument or obligation
to which Buyer is a party or by which it is or may be bound; or (ii) violate any
law, order, rule, regulation, judgment, order, decree, writ or injunction
applicable to Buyer. No consent or approval by any governmental authority
(whether of the United States or of any other jurisdiction located outside the
United States) is required in connection with the execution, delivery and
performance of Buyer's Documents by Buyer which has not been received as of the
date of this Agreement.
7.4.3 Buyer has funds available to it sufficient to
consummate the transaction contemplated by this Agreement.
7.4.4 Buyer is not aware of any fact or circumstance which
could render any of Seller's representations and warranties contained in Section
7.3 or elsewhere in this Agreement materially untrue.
7.4.5 Buyer will expeditiously take such actions as are
required to consummate the Transaction on the Closing Date.
8. Conditions Precedent.
8.1 Buyer's Conditions. All of Buyer's obligations under this
Agreement are subject to the following conditions precedent, any or all of which
Buyer may waive.
8.1.1 Delivery of Documents. The delivery by Seller of all
documents required by Section 9.2.
8.1.2 Default. Seller not being otherwise in material
breach or default of its obligations under this Agreement.
8.1.3 Casino Control Commission Approval. Buyer's receipt
of a determination by the New Jersey Casino Control Commission (the
"Commission") which, if conditional, does not contain conditions, the compliance
with which would materially and adversely impair the present and reasonably
anticipated future operation or development of Buyer's Atlantic City related
business, that the consummation of the Transaction by Buyer will not result in a
violation of the "Undue Economic Concentration Standard" (the "Ruling"). Buyer's
obligations under this Agreement shall not be conditioned upon the receipt or
issuance of any other determination or ruling from the Commission. Buyer hereby
represents and warrants that prior to Execution Date, Buyer has filed all
applications (together with required supporting documentation) required to
obtain the Ruling and covenants to diligently prosecute the issuance and receipt
of the Ruling. The condition contained in this Section 8.1.3 shall automatically
terminate and be of no force and effect and shall be deemed deleted from this
Agreement from and after January 31, 2001 without the need for further action or
deed.
8.1.4 Buyer's receipt, on the Closing Date, of a policy of
title insurance (ALTA Form B Owner's Policy 1992 or later) insuring the Land and
Improvements against all defects in title except for the Permitted Exceptions
and those other title exceptions which have been accepted or waived by Buyer
pursuant to Section 7B of this Agreement (the "Title Policy").
8.2 Seller's Conditions. All of Seller's obligations under
this Agreement are subject to the following conditions precedent, any or all of
which Seller may waive.
8.2.1 Delivery of Documents and Monies. The delivery by
Buyer of all documents required under this Agreement and the Closing Payment.
8.2.2 Default. Buyer not being otherwise in material
breach or default of its covenants and obligations under this Agreement.
8.3 Joint Conditions. All of Seller's and Buyer's rights and
obligations under this Agreement are subject to the following conditions
precedent, any or all of which Buyer or Seller may waive, on its own behalf:
8.3.1 Approval of the Bankruptcy Court. The receipt of all
documents reasonably necessary and otherwise customary to evidence the approval
by the Bankruptcy Court pursuant to the Confirmation Order of, among other
things, the Plan and the Transaction. Seller and Buyer each agree to promptly
file or cause to be filed all documents, information, affidavits or other
filings reasonably required in connection with the filing of the Plan and the
issuance of the Confirmation Order. Each party will promptly make available to
the other party such information as may be necessary for the other party to
complete such documents and filings, and each party will promptly furnish such
additional information as may be requested by the Bankruptcy Court as soon as
possible.
8.3.2 HSR Act. All filings and payments with respect to
the Transaction, if any, required to be made by Buyer and Seller, respectively,
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), shall have been made, and the waiting period thereunder, including
any extensions thereof, shall have expired. Seller and Buyer each agree to
promptly file or cause to be filed the Notification and Report Form with respect
to the transaction contemplated by this Agreement and any other forms or filings
required by the HSR Act. Each party will promptly make available to the other
party such information as may be necessary for the other party to complete such
forms and filings, and each party will promptly furnish such additional
information as may be requested by the Federal Trade Commission or the Antitrust
Division of the United States Department of Justice in order to cause the
waiting period under the HSR Act to expire, or be terminated, as soon as
possible. Buyer and Seller shall each be responsible for the payment of one-half
of any fees required to be paid in connection with the filings required under
the HSR Act in connection with the Transaction.
8.4 Discovery. Upon the discovery by Buyer or Seller of any
matter preventing the satisfaction of a condition under Section 8 hereof, the
party benefited thereby shall promptly give written notice thereof to the other
party.
8.5 Failure of Conditions Precedent.
8.5.1 Failure of Buyer's Conditions. If any of the
conditions precedent set forth in Sections 8.1.1, 8.1.2 or 8.1.4 of the
Agreement are not satisfied or waived by Buyer on or prior to the date set for
the Closing, then Buyer shall have the rights provided in Section 16.2. If the
condition precedent set forth in Section 8.1.3 is not satisfied on or prior to
January 31, 2001, Buyer may elect, provided Buyer is not then in material
default of its obligations under the terms of this Agreement, to terminate this
Agreement by written notice delivered to Seller no later than 5 p.m. EST on
January 31, 2001. In the event that this Agreement is terminated by Buyer in
accordance with the immediately preceding sentence, the Down Payment and all
interest accrued thereon shall be delivered to the Indenture Trustee in partial
satisfaction of its first priority liens and security interest in the Property
without regard to any allocation established pursuant to Section 2.3 hereof and
the parties shall be released from all further obligations and liabilities under
this Agreement, except with respect to the covenants, representations,
warranties and indemnities set forth in Section 4, 6.5 and 13. In no event shall
the transfer to Buyer of the license held by Seller permitting the sale and
distribution of liquor at the Property, or the receipt of Buyer of the approvals
of such distribution or any other approvals or consents (other than the Ruling
and the approval of this Transaction from the Bankruptcy Court) from applicable
governmental authorities, be a condition to Closing.
8.5.2 Failure of Seller's Conditions. If any of the
conditions precedent set forth in Sections 8.2.1 or 8.2.2 are not satisfied or
waived by Seller on or prior to the date set for the Closing, then Seller shall
have the rights provided in Section 16.1.
8.5.3 Failure of Joint Conditions. If the condition
precedent set forth in Section 8.3.2 is not satisfied or waived by Seller and
Buyer on or prior to the date set for the Closing or if the condition precedent
set forth in Section 8.3.1 is not satisfied within 270 days from the Execution
Date, either Buyer or Seller may elect, at its option, by written notice given
to the other party and Escrow Agent, to terminate this Agreement. If Buyer or
Seller elects to terminate this Agreement pursuant to the provisions of this
Section 8.5.3 and provided Buyer is not then in default of its obligations under
the terms of this Agreement, the Down Payment and all interest earned thereon
shall be delivered to Buyer and the parties shall be released from all further
obligations and liabilities under this Agreement, except with respect to the
covenants, representations, warranties and indemnities set forth in Sections 4,
6.5 and 13.
9. Closing.
9.1 Time and Place. The closing contemplated by this Agreement
(the "Closing"), shall take place on or before the date which shall be thirty
(30) days following entry of the Confirmation Order in the records of the
Bankruptcy Court (the "Closing Date"). Time shall be of the essence with respect
to Buyer's obligations under this Agreement. The Closing shall be held at the
New York offices of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP or such other place as
the parties shall mutually agree. At the Closing, Seller shall deliver
possession of the Property to Buyer.
9.2 Seller's Closing Documentation and Requirements. At the
Closing, Seller shall deliver the following to Buyer:
9.2.1 two (2) quitclaim deeds or such other deed required
by the title company issuing the Title Policy in order to obtain the minimum
title insurance required to be delivered to Buyer pursuant to this Agreement,
one duly executed on behalf of ACBA and the other duly executed on behalf of
CPPI, each acknowledged and in recordable form, conveying to Buyer fee simple
title to the Land and the Improvements, and each in substantially the form of
Exhibit 9.2.1 attached hereto;
9.2.2 two (2) quitclaim bills of sale, one duly executed
on behalf of ACBA and the other duly executed on behalf of CPPI, transferring to
Buyer all of the Personal Property and each in substantially the form of Exhibit
9.2.2 attached hereto;
9.2.3 an assignment and assumption of the Designated
Section 365 Items, including any security deposits and advance rentals and other
deposits made thereunder which will be in substantially the form of Exhibit
9.2.3(a) attached hereto for leases and Exhibit 9.2.3(b) for contracts;
9.2.4 an assignment of Intangible Property, duly executed,
of those items referred to in Sections 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 and in
substantially the form of Exhibit 9.2.4 attached hereto;
9.2.5 an executed "Consent to Transfer" as required to be
executed under the laws of the State of New Jersey to transfer the existing
Permits relating to the distribution of liquor at the Property;
9.2.6 an affidavit executed by Seller stating, under
penalty of perjury, its United States taxpayer identification number and that
Seller is not a "foreign person" as defined in Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended, and otherwise in the form prescribed
by the Internal Revenue Service;
9.2.7 the State of New Jersey Affidavit of Consideration
and Exemption;
9.2.8 an assignment and assumption of the Wraparound
Mortgage and the Wraparound Mortgage Documents in substantially the form of
Exhibit 9.2.8 attached hereto;
9.2.9 Intentionally Omitted;
9.2.10 an allonge to the Wraparound Note in substantially
the form of Exhibit 9.2.10 attached hereto;
9.2.11 an allonge to the FF&E Notes in substantially the
form of Exhibit 9.2.11 attached hereto;
9.2.12 an assignment and assumption of liabilities,
whereby Seller assigns to Buyer and Buyer assumes all of the Liabilities, except
as otherwise provided in Section 5.1 hereof, in substantially the form of
Exhibit 9.2.12 attached hereto;
9.2.13 to the extent any assignments to be made by Seller
shall require the approval of a third party, copies of all such consents given
by third parties;
9.2.14 true and complete copies of all correct tax bills
affecting the Land and Improvements;
9.2.15 a true and complete copy of the LNA;
9.2.16 all documents required to transfer the CRDA
investments and obligations to Buyer;
9.2.17 any other documentation customarily and reasonably
requested by Buyer in order to consummate the Transaction; and
9.2.18 documentation indicating the names of the Employees
and the personnel files and records relating to the Employees.
9.3 Buyer's Closing Documentation and Requirements. At the
Closing, Buyer shall pay the Closing Payment in accordance with the provisions
of this Agreement and shall deliver the following to Seller:
9.3.1 any agreements or documents referenced in Section
9.2 requiring Buyer's signature duly executed and, where required, acknowledged;
9.3.2 a Certificate of Good Standing for Buyer and its
nominee, issued by the appropriate authority, agency or department of the State
of Delaware, or the State in which the nominee is incorporated or otherwise
registered;
9.3.3 a certificate, dated as of the Closing, of the
Secretary of Buyer with respect to (i) the resolutions adopted by the Board of
Directors of Buyer approving this Agreement and the Transaction and (ii) the
incumbency and specimen signature of each officer of Buyer executing this
Agreement, Buyer's Documents and any other documents delivered pursuant to this
Agreement; and
9.3.4 such other documents and instruments customarily and
reasonably requested by Seller in order to consummate the Transaction.
10. Adjustments; Deposits and Property of Guests.
10.1 Revenue, Costs and Expenses. Except as expressly set forth
herein, all items of revenue, cost and expense of the Business, existing on or
after the day of the Closing shall be for the account of Buyer, exclusive of the
Excluded Assets. Without limiting the generality of the foregoing, "items of
revenue, cost and expense" shall include, but shall not be limited to, the
Liabilities (other than those expressly excluded in Section 5.1 hereof) and all
base, percentage and additional rents due under the Existing Leases, real estate
taxes, assessments and similar impositions, operating expenses, utility fees,
insurance premiums, water and sewer charges, trade accounts payable, guest room
deposits and advance payments, markers, the Cash, promotional allowances,
compcards and similar coupons, amounts paid or receivable under the Contracts,
employee wages, salaries, bonuses, social security taxes, benefits, wage
withholding, severance pay, vacation pay and payroll taxes, personal property
taxes, sales and use taxes, xxxxx cash, advertising expenses, advance payments
under booking agreements, travel agency commissions or any similar items of
revenue, cost or expense. Notwithstanding the foregoing, during the Pre-Closing
Period, Seller agrees to continue to pay, or cause to be paid in the ordinary
course of business consistent with past practice, all Liabilities incurred in
the ordinary course of the operation of the Property.
10.2 Post-Closing Adjustment. Except as expressly set forth in
this Agreement, in no event shall any adjustment be made on or after the date of
this Agreement to the Purchase Price. Notwithstanding anything to the contrary
contained herein, no later than thirty (30) days after the date of the Closing,
Seller shall deliver to Buyer a statement (the "Closing Net Non-Cash Working
Capital Statement") of the Closing Net Non-Cash Working Capital of the Business
as of 5:59 a.m. on the day of the Closing, in substantially the form as annexed
hereto as Exhibit A-3, and prepared in accordance with GAAP. Notwithstanding
anything to the contrary contained herein, all Liabilities required by GAAP to
be included in Exhibit A-3 shall be included in Exhibit A-3 as a liability,
except that in any instance where (i) Seller has agreed to be responsible for
the Representation Modification Excess, the Nondisclosed Modification Excess or
the Environmental Liability Excess, as applicable, and (ii) GAAP requires that
the entire amount of the Liability arising under Sections 6.3 and 7.3, as the
case may be, be listed as a liability under Exhibit A-3, the entire amount of
such Liability shall be set forth as a Liability on the Closing Net Non-Cash
Working Capital Statement, provided that Seller shall only be responsible for
the Representation Modification Excess, the Nondisclosed Modification Excess or
the Environmental Liability Excess, as applicable, and the Closing Net Non-Cash
Working Capital Statement shall be adjusted accordingly in favor of Seller to
provide Seller a corresponding credit in the form of a current asset value equal
to the difference between the subject Liability and the amount of the
Representation Modification Excess, the Nondisclosed Modification Excess or the
Enivornmental Liability Excess, as applicable.
Buyer shall have ten (10) Business Days following the date on which the
Closing Net Non- Cash Working Capital Statement is delivered to Buyer in
accordance with the provisions of this Agreement, to review the Closing Net
Non-Cash Working Capital Statement and either approve the amount of the Closing
Net Non-Cash Working Capital set forth therein or to notify Seller, in writing,
of the Closing Net Non-Cash Working Capital as determined by Buyer. Buyer and
Seller shall cooperate with each other and act in a diligent good faith manner
to determine the Closing Net Non-Cash Working Capital.
In the event that Buyer and Seller are unable to mutually agree upon
the amount of the Closing Net Non-Cash Working Capital within forty-five (45)
days after the date of the Closing, Seller shall promptly submit all documents
necessary to enable the Bankruptcy Court to calculate the Closing Net Non- Cash
Working Capital pursuant to Section 18.7 hereof. Buyer hereby agrees to
cooperate with Seller in connection with executing and filing all documents
required by the Bankruptcy Court to calculate the Closing Net Non-Cash Working
Capital. The determination by the Bankruptcy Court of the Closing Net Non-Cash
Working Capital shall be binding on Seller and Buyer.
In the event that the Closing Net Non-Cash Working Capital (as
determined pursuant to the provisions of this Section 10.2) exceeds the amount
of net non-cash working capital of the Business shown on Exhibit A-3 annexed
hereto (the "Second Quarter Amount"), Buyer shall, no later than two (2)
Business Days after the determination of the Closing Net Non-Cash Working
Capital, pay to Seller (by delivery to the Indenture Trustee in satisfaction of
its first priority liens and security interest in the Property) the amount of
such excess. In the event, however, that the Closing Net Non-Cash Working
Capital is less than the Second Quarter Amount, CPPI shall cause the Indenture
Trustee to pay to Buyer, no later than two (2) Business Days after the
determination of the Closing Net Non-Cash Working Capital, the amount of such
deficiency from the funds held in escrow pursuant to Section 2.2 of this
Agreement; it being understood and agreed that in no event shall the Indenture
Trustee be liable to pay any amount due to Buyer under this Section 10.2 that
exceeds the funds held by the Indenture Trustee in escrow pursuant to Section
2.2 of this Agreement. Notwithstanding the foregoing, any amount owed by Seller
to Buyer pursuant to this Section 10.2 in excess of the funds held by the
Indenture Trustee in escrow shall be paid by Seller as an "Administrative
Expense" in the Bankruptcy Cases in the ordinary course of the administration
thereof.
10.3 Safe Deposit Boxes. On the date of the Closing, Seller
shall cause the delivery to Buyer of all keys to the safe deposit boxes at the
Property not at the time in use by guests of the Property, and a complete list
of safe deposit boxes in use by guests at the Property, which list shall include
the name and room number of each depositor and all receipts and agreements
relating to all such safe deposit boxes. Buyer shall indemnify Seller and hold
it harmless from and against any loss, cost, expense, claim, liability or
damage, including attorneys' fees, arising out of any claim with respect to any
depositor.
10.4 Guest's Baggage. All baggage or other property of guests
or tenants retained by Seller prior to the Closing as security for unpaid
accounts receivable, if any, and all baggage, parcels, laundry or valet packages
checked or left in the care of Seller prior to the Closing by guests or tenants
now or formerly in the Property not so retained as security, shall be included
in Inventory, and custody thereof shall be transferred to Buyer at the Closing.
Buyer shall indemnify and hold Seller harmless from any loss, cost or expense,
including reasonable counsel fees, arising out of any claim for missing contents
from baggage in the Inventory.
10.5 Post-Closing Obligations. The provisions of Sections 10.1,
10.2, 10.3 and 10.4 shall survive the Closing.
11. Expenses.
11.1 Closing Costs. Unless otherwise provided herein, the Seller
agrees to pay for the preparation of the deed. All searches, title insurance
premiums, survey costs and recording fees will be borne by the Buyer. Seller
shall obtain an order from the Bankruptcy Court to excuse the payment of the New
Jersey Real Estate Transfer Tax and other taxes or fees due to any governmental
entities or agencies that would otherwise be due in connection with the
Transaction.
11.2 Attorney's Fees. Each party shall pay its own attorney's
fees.
12. Risk of Loss; Eminent Domain.
12.1 Casualty. If, prior to the Closing, the Improvements are
damaged by fire, vandalism, acts of God or other casualty or cause, Seller shall
promptly give Buyer Notice of any such damage, together with Seller's estimate
of the cost and period of repair and restoration. In any such event: (a) in the
case of damage to the Improvements of less than $5,000,000 and from a risk
covered by any casualty insurance Seller maintains with respect to the
Improvements, Buyer shall take the Property at the Closing as it is together
with the casualty insurance proceeds or the right to receive the same; or (b) in
the case of either (i) damage to the Improvements of $5,000,000 or more or (ii)
damage in excess of $500,000 to the Improvements from a risk not covered by the
insurance described above, Buyer shall have the option, to be exercised within
thirty (30) days after Seller's Notice described above, of (x) taking the
Property at the Closing in accordance with item (a) above or (y) terminating
this Agreement. If, pursuant to the preceding sentence, Buyer is either
obligated or elects to take the Property as it is together with the insurance
proceeds or the right to receive the same Seller agrees to cooperate with Buyer
in any loss adjustment negotiations, legal actions and agreements with the
insurance company, and to assign to Buyer at the Closing its rights to such
insurance proceeds and will not settle any insurance claims or legal actions
relating thereto without Buyer's prior written consent.
12.2 Eminent Domain. If, prior to the Closing, the entire Land
and Improvements or any material part thereof is taken by eminent domain, this
Agreement shall automatically terminate. If a non- material part of the Land and
Improvements is so taken, Buyer shall proceed with the Closing and acquire the
Land and Improvements as affected by such taking, together with all compensation
and damages awarded or the right to receive same with respect to the Land and
Improvements. Seller agrees to assign to Buyer at the Closing its rights to such
compensation and damages, and will not settle any proceedings relating to such
taking without Buyer's prior written consent. For the purposes of this Section,
a part of the Land and Improvements shall be deemed "material" if it (i)
includes any of the Improvements or (ii) otherwise (on a permanent basis) limits
or restricts ingress and egress to and from the Land and Improvements. Seller
shall promptly notify Buyer of any actual or threatened condemnation affecting
the Land and Improvements.
12.3 Termination. If this Agreement is terminated pursuant to
this Article 12, the Down Payment and all interest earned thereon shall be
delivered to Buyer and the parties hereto shall be released from all further
obligations and liabilities hereunder, except with respect to the covenants,
representations, warranties and indemnities set forth in Sections 4, 6.5 and 13.
13. Broker's Commissions. Other than any commission payable to U.S.
Bancorp Libra, a division of U.S. Bancorp Investments, Inc. ("Libra"), the
official financial advisor to the Official Noteholders Committee, which such
entity will be paid a commission in accordance with the terms of an order of the
Bankruptcy Court approving Libra's retention, Buyer and Seller represent and
warrant to each other that neither party has dealt with any broker or finder in
connection with the transactions contemplated by this Agreement. Buyer and
Seller each agrees to indemnify, defend and hold the other harmless from and
against all loss, expense (including reasonable counsel fees), damage and
liability resulting from the claims of any broker or finder (or anyone claiming
to be a broker or finder) on account of any services claimed to have been
rendered to the indemnifying party in connection with the transaction
contemplated by this Agreement. The provisions of this Section shall survive the
Closing or the earlier termination of this Agreement.
14. Employees. As an inducement to Seller to execute this Agreement,
Buyer agrees to take title to the Property subject to, and agrees to honor any
and all union contracts, employment contracts (including, but not limited to,
the Employment Agreements), severance agreements or similar agreements
(including the employment manuals and policies) existing and in full force and
effect, as of the date of the Closing provided that such contracts or agreements
have been disclosed to Buyer in accordance with this Agreement or are otherwise
known to Buyer.
15. Assignment. This Agreement and all rights of Buyer arising
hereunder shall not be assigned, sold, pledged or otherwise transferred by Buyer
in whole or in part, without the prior written consent of Seller and the
Bankruptcy Court, provided that Buyer may assign this Agreement to a wholly
owned subsidiary of Buyer if such assignee expressly assumes all of Buyer's
obligations and liabilities hereunder and, provided that notwithstanding such
assignment, Buyer remains liable for the obligations and liabilities of Buyer
hereunder. At any time prior to the Closing, ACBA or CPPI, as the case may be,
may, in their respective sole discretion, assign any and all of their respective
rights, title and interests in and to the Property and all of its rights,
interests and obligations under this Agreement to the other party or any
affiliate of either party, provided that (i) such transfer does not violate any
of the rights of the Indenture Trustee with respect thereto or impair or affect
in anyway the liens and security interests of the Indenture Trustee in any of
the Property, (ii) such transfer is approved by the Bankruptcy Court in
connection with the Bankruptcy Cases, and (iii) Buyer's rights and obligations
under this Agreement are not modified.
15A. Employee Related Matters.
15A.1 Employee Benefit Matters.
(a) CPPI shall provide on or before ten (10) days from the
Execution Date a schedule (the "Employee Plan Schedule") that sets forth all
written and any other employee benefit plans, within the meaning of Section 3(3)
of ERISA, of which CPPI is aware, all written and any other bonus, stock option,
stock purchase, restricted stock, incentive, deferred compensation, retiree
medical or life insurance, supplemental retirement, dependent care spending
account or assistance, split dollar arrangement, cafeteria, severance or other
benefit plans, programs or arrangements of which CPPI is aware, and all written
or any other employment, termination, severance or other contracts or agreements
with respect to which CPPI has any obligation or which are maintained,
contributed to or sponsored by CPPI for the benefit of any current employee,
officer or director of CPPI employed in the Business or any former employee of
CPPI who was previously employed in the Business, other than written contracts
or agreements between CPPI and any individual employee which are not being
assumed by the Buyer (collectively referred to as "Employee Plans"). Except as
disclosed in the Employee Plan Schedule, each Employee Plan is in writing and
CPPI has previously made available to the Buyer a true and complete copy of each
Employee Plan and a true and complete copy of each of the following documents,
to the extent applicable, prepared in connection with each such Employee Plan:
(i) a copy of each trust or other funding arrangement, (ii) the most recently
filed Internal Revenue Service ("IRS") Form 5500, (iii) the most recently
received IRS determination letter, and (iv) the most recent summary plan
description. Except as otherwise disclosed in the Employee Plan Schedule, CPPI
has no express or implied commitment to modify, change or terminate any Employee
Plan or to establish any new Employee Plan, other than with respect to a
modification, change or termination required by ERISA or the Code;
(b) Other than those multiemployer plans listed on the
Employee Plan Schedule, none of the Employee Plans is a multiemployer plan,
within the meaning of Section 3 (37) or 4001 (a)(3) of ERISA (a "Multiemployer
Plan") or a single-employer pension plan, within the meaning of Section
4001(a)(15) of ERISA, for which CPPI could incur liability under Sections 4063
or 4064 of ERISA (a "Multiple Employer Plan"). CPPI has not incurred with
respect to any such Multiemployer Plan any withdrawal liability within the
meaning of Sections 4201 and 4204 of ERISA, and no liabilities exist with
respect to withdrawals from any Multiemployer Plans which could subject CPPI to
any controlled group liability under Section 4001(b) of ERISA;
(c) There is no contract, agreement, or benefit
arrangement covering any employees which, individually or collectively, would
give rise to the payment of any amount which would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code, except as set
forth in Exhibit 15A.1(c);
(d) With respect to each Employee Plan, no officer,
director, or employee of CPPI or CPPI is currently liable for any material tax
arising under Section 4971, 4972, 4975, 4976, 4977, 4979, 4980 or 4980B of the
Internal Revenue Code, and to the best of CPPI's knowledge, no fact or event
exists which could reasonably give rise to any such liability. CPPI has not
incurred any liability under or arising out of Title IV of ERISA (other than any
liability for premiums to the Pension Benefit Guaranty Corporation arising in
the ordinary course) that could have a material adverse effect, and to the best
of CPPI's knowledge, no fact or event exists that could reasonably be expected
to result in such a liability. None of the assets of CPPI is the subject of any
lien arising under Section 302(f) of ERISA or Section 412(n) of the Code and no
member of CPPI's controlled group, as that term is defined under Section 414(c)
of the Code, has been required to post any security under Section 307 of ERISA
or Section 401(a)(29) of the Code with respect to any Employee Plan, and to the
best of CPPI's knowledge, no fact or event exists which could reasonably give
rise to any such lien or requirement to post any such security. To the best of
CPPI's knowledge, no member of CPPI's controlled group has engaged in a
transaction described in Section 4069 of ERISA;
(e) Each Employee Plan is now and has been operated in all
material respects in accordance with the requirements of all applicable laws,
including ERISA and the Code. All expenses and liabilities relating to all of
the Employee Plans as applied to the Business have been, and will at the Closing
Date be, fully and properly accrued on CPPI's books and records and disclosed in
accordance with generally accepted accounting principles and in financial
statements of the Employee Plans;
(f) All group health plans, as defined under Section
5000(b)(1) of the Code, maintained by CPPI for the employees of the Business
comply in all material respects with all COBRA health continuation coverage
requirements under Section 4980B of the Code and Part 6 of Title I of ERISA;
(g) All reports, forms and other material documents
required to be filed with any government entity or distributed to employees with
respect to any Employee Plan (including without limitation, summary plan
descriptions, Forms 5500 and summary annual reports), other than Multiemployer
Plans, have been timely filed or distributed and are accurate in all material
respects;
(h) Except as set forth in the Employee Plan Schedule, as
of the Closing Date, no Employee Plan maintained by CPPI for the benefit of
employees of the business which is subject to Title IV of ERISA has benefit
liabilities (as defined in Section 4001 (a)(16) of ERISA) exceeding the assets
of such plan or has been completely or partially terminated;
(i) Except as set forth in the Employee Plan Schedule,
with respect to each Employee Plan that is not a Multiemployer Plan, CPPI
represents and covenants as follows:
(i) there are no investigations, or proceedings,
either currently in progress or expected to be instituted in the future, by any
administrative agency, whether local, state, or federal.
(ii) no material prohibited transactions (as defined
in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for
which a statutory exemption is not available;
(iii) no reportable event (as defined in Section 4043
of ERISA) has occurred as to which a notice would be required to be filed with
the Pension Benefit Guaranty Corporation;
(iv) to the best of CPPI's knowledge, no action or
claims (other than routine claims for benefits made in the ordinary course of
administration of the Employee Plans for which administrative review procedures
of the Employee Plans have not been exhausted) are pending, threatened or
imminent against or with respect to any Employee Plan, any employer who is
participating (or who has participated) in any Employee Plan or any fiduciary
(as defined in Section 3(21) of ERISA) of the Employee Plan; and
(v) CPPI has no knowledge of any facts which could
reasonably be expected to give rise to any such action or claim.
(j) Buyer shall provide COBRA health continuation coverage
under Section 4980B of the Code and Part 6 of Title I of ERISA as of the Closing
Date to any past or present employees of CPPI employed at the Business who
terminated their employment or whose employment is terminated on or prior to the
Closing Date who were covered by a Welfare Plan which is not a Multiemployer
Plan. Buyer shall also provide notice of COBRA rights to any present employee of
the Business whose employment is terminated on the Closing Date; and
(k) CPPI shall be responsible for notifying any
Multiemployer Plans which are group health plans subject to COBRA of the
termination of covered employees as a result of the Transaction; however, the
responsibility for COBRA compliance as to those employees belongs to the
Multiemployer Plans, not CPPI or Buyer.
15A.2 Labor Matters.
Except as set forth in either Exhibit A-3 or in Schedule 15A, (i) there
are no complaints, lawsuits, legal actions, whether judicial or administrative,
or other controversies either active, pending or, to the knowledge of CPPI,
threatened, between CPPI and any of the employees of the Business relating to
their employment or separation from their employment which would materially and
adversely affect the value and operation of the Business; (ii) there are no
grievances or demands for arbitration or pending arbitration cases outstanding
against the Business, of which CPPI has received notice, under any such
agreement or contract; (iii) there are no unfair labor practice complaints or
petitions for election pending against the Business before the National Labor
Relations Board or any other federal or state commission or agency, of which
CPPI has received notice; (iv) CPPI has no knowledge of any strikes, picketing
or threats to picket, slowdowns, work stoppages, lockouts, or threats thereof,
by or with respect to any employees of the Business; (v) CPPI is not subject to
any written or, to the best knowledge of CPPI, oral obligation, nor is it party
to any written or, to the best knowledge of CPPI, oral agreement regarding
employees, that requires
the Buyer to hire or retain any employee of the Business, whether covered by a
collective bargaining agreement or not, or restrict the Buyer from relocating,
consolidating, merging or closing, in whole or in part any of the Business,
except as otherwise provided herein and subject to applicable law; (vi) CPPI is
not subject to any order, consent order or decree of which it has received
notice or judgment, settlement, commitment or agreement with respect to
remedying unfair labor practices, employment discrimination matters or cases,
OSHA violations or deficiencies or violation or alleged violation of any labor,
employment or benefits laws, or any labor or employment contracts or agreements.
The Business is not in default of any collective bargaining agreement or labor
contract or term or provision of any collective bargaining agreement or contract
and has not violated any laws, regulations, orders or contract terms, affecting
the collective bargaining rights of employees, equal employment opportunity or
employee's health, safety, welfare or wages and hours.
15A.3 Employment Matters and Liabilities Arising From Employment.
Buyer shall employ or continue to employ all Employees whether covered
by a collective bargaining agreement or not, as of the Closing Date. Following
the Closing Date, the Buyer may, at its discretion and option, retain any
employees for any period of time. Any liabilities arising from CPPI's employment
of the Employees (whether represented by unions or not) and relating to
obligations to such Employees whether imposed by operation of law, collective
bargaining agreements, employment agreements or contracts, employee manuals or
handbooks or personnel policies or otherwise, including, but not limited to, any
wage claims, holiday, vacation, personal day and sick pay benefits, severance or
layoff benefits, employee health (including claims for COBRA coverage), welfare
and pension plan benefits, Section 401(k) and profit sharing and bonus plan
benefits, pending grievances and/or arbitrations back pay and/or benefits, any
other Xxxx-Xxxxxxx Fund benefits, pension fund withdrawal liability, workers'
compensation liabilities, savings bonds and wage garnishments or assignments,
union agency fees, union dues, employment discrimination, wrongful termination
or similar claims arising or accruing on or before the Closing Date shall, be
provided to Buyer as part of either Exhibit A-3 or Exhibit 15A.
15A.4 Plant Closing Notice.
Provided CPPI has not taken any action which would constitute an event
impacting current employees prior to the Closing Date, pursuant to the Worker
Adjustment and Retraining Notification Act of 1988 ("WARN"), it shall be solely
Buyer's obligation to provide timely and effective notice to Employees who were
employed by CPPI in the Business at or prior to the Closing Date with respect to
any employment loss suffered by such Employees as the result of the Transaction
and/or to provide any other notice required under WARN, if such notice is
legally required.
16. Defaults.
16.1 By Buyer. If, prior to or on the Closing Date, Buyer is in
default with respect to, or breaches or fails to perform one or more of the
representations, covenants, warranties or other terms of this Agreement, and
such default, breach or failure is not cured or remedied within ten (10)
Business Days after receipt of written notice thereof given by Seller to Buyer,
Seller may terminate this Agreement and receive the Down Payment and all
interest earned thereon from the Escrow Agent and exercise any other remedy
available to Seller at law or in equity, in which event this Agreement shall be
deemed null and void and the parties shall be released from all further
obligations and liabilities under this Agreement, except with respect to the
covenants, representations, warranties and indemnities set forth in Sections 4,
6.5 and 13; provided, however, that if such breach or failure to perform cannot
reasonably be cured within such ten (10) day period but is reasonably
susceptible to cure before the Closing Date, then Seller shall not have the
foregoing rights provided Buyer promptly commences to cure such breach or
failure to perform within the period of ten (10) days after receipt of written
notice and thereafter diligently proceeds to effect such cure on or prior to the
Closing Date. Notwithstanding anything to the contrary contained in this Section
16.1, in no event shall Seller seek to recover, nor shall Seller recover or
obtain a judgment or other decree or ruling against Seller or its assets in
excess of $18,000,000 in connection with the exercise of Seller's remedies under
this Section 16.1. If Seller terminates this Agreement in accordance with this
Section 16.1, then the Escrow Agent shall pay to the Indenture Trustee the Down
Payment and all interest earned thereon, and any other amounts payable to Seller
pursuant to this Section 16.1 shall be paid to the Indenture Trustee, in partial
satisfaction of its first priority liens and security interest in the Property
without regard to any allocations established pursuant to Section 2.3 hereof.
16.2 By Seller. If, prior to the Closing, Seller is in default with
respect to, or breaches, or fails to perform one or more of the representations,
covenants, warranties or other terms of this Agreement, and such default, breach
or failure is not cured or remedied within ten (10) Business Days after receipt
of written notice thereof given by Buyer to Seller, Buyer may either (a)
terminate this Agreement, in which event the Down Payment and all interest
earned thereon shall be returned by Escrow Agent to Buyer and the parties shall
be released from all further obligations and liabilities under this Agreement,
except with respect to the covenants, representations, warranties and
indemnities set forth in Sections 4, 6.5 and 13, or (b) xxx for specific
performance; provided, however, that if such breach or failure to perform cannot
reasonably be cured within such ten (10) day period but is reasonably
susceptible to cure before the Closing Date, then Buyer shall not have the
foregoing rights provided Seller promptly commences to cure such breach or
failure to perform within the period of ten (10) days after receipt of written
notice and thereafter diligently proceeds to effect such cure on or prior to the
Closing Date. The remedies set forth above shall be Buyer's sole remedies
arising from a default, breach or failure to perform by Seller.
17. Notices.
Any notice, demand, consent, authorization or other communication
(collectively, a "Notice") which either party is required or may desire to give
to or make upon the other party pursuant to this Agreement shall be effective
and valid only if in writing, signed by the party giving such Notice, and
delivered personally (upon an officer, general partner or officer of a general
partner of the other party if such party is not an individual or to such
individual as may be noted in the addresses stated below) to the other party or
sent by facsimile transmission, express courier or delivery service or by
registered or certified mail of the United States Postal Service, return receipt
requested, and addressed to the other party as follows (or to such other address
or person as either party or person entitled to notice may, by notice to the
other specify):
To Seller:
---------
The Claridge at Park Place, Incorporated
c/o The Claridge Hotel and Casino Corporation
Indiana Avenue and the Boardwalk
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
Telephone: (000) 000-0000
Atlantic City Boardwalk Associates, L.P.
c/o AC Boardwalk Partners, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx, President
Fax: (000) 000-0000
Telephone: (000) 000-0000
and to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
and to:
Xxxxxxxxxx Xxxxxxx P.C.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
To Buyer:
--------
Xxxxx XxXxxxx
Executive Vice President and CFO
Park Place Entertainment Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
and to:
Xxxxxxx XxXxxx, Esquire
Senior Vice President and General Counsel
Bally's Park Place, Inc.
Park Place and Boardwalk
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
In addition, both Buyer and Seller shall forward a copy of any notice
sent to the other under or in connection with this Agreement to:
Fox Rothschild O'Brien & Xxxxxxx XXX
Xxxxxxxxxx Xxxxxxxx
Xxxxx 000
1300 Atlantic Avenue
Atlantic City, New Jersey 08401-7278
Attention: Xxxxxxx X. Viscount, Jr., Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
and to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
Unless otherwise specified, Notices shall be deemed given when
received, but if delivery is not accepted, on the earlier of the date delivery
is refused or, (i) with respect to facsimile transmissions, upon confirmation of
the facsimile transmission, (ii) with respect to overnight or express courier
deliveries, the Business Day after same is deposited with the courier, and (iii)
with respect to registered or certified mail of the United States Postal
Service, the fourth Business Day after the same is deposited with the United
States Postal Service.
18. General Provisions.
18.1 Successors and Assigns. This Agreement shall bind and
inure to the benefit of the respective permitted successors and permitted
assigns of the parties hereto.
18.2 Gender and Number. Whenever the context so requires, the
singular number shall include the plural and the plural the singular, and the
use of any gender shall include all genders.
18.3 Entire Agreement. This Agreement contains the complete and
entire agreement between the parties respecting the Transaction, and supersedes
all prior negotiations, agreements, representations and understandings, if any,
between the parties respecting such matters.
18.4 Counterparts. This Agreement may be executed in any number
of original counterparts, all of which evidence only one agreement and only one
of which need be produced for any purpose.
18.5 Modifications. This Agreement may not be modified,
discharged or changed in any respect whatsoever, except by a further agreement
in writing duly executed by Buyer and Seller. However, any consent, waiver,
approval or authorization shall be effective if signed by the party granting or
making such consent, waiver, approval or authorization.
18.6 Exhibits. All exhibits referred to in this Agreement are
incorporated herein by reference and shall be deemed part of this Agreement for
all purposes as if set forth at length herein.
18.7 Governing Law; Dispute Resolution. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New Jersey without regard to principles of conflict of law. Any and all disputes
arising under or related to this Agreement, its implementation or the
effectuation of the Transaction shall be subject to the exclusive jurisdiction
of the Bankruptcy Court and the Buyer irrevocably submits to the Bankruptcy
Court's personal and subject matter jurisdiction with respect to the resolution
of any such dispute.
18.8 No Recordation. This Agreement shall not be recorded.
18.9 Captions. The captions of this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope, meaning or intent of this Agreement.
18.10 Severability. The invalidation or unenforceability in any
particular circumstance of any of the provisions of this Agreement shall in no
way affect any of the other provisions hereof, which shall remain in full force
and effect.
18.11 No Joint Venture. This Agreement shall not be construed as
in any way establishing a partnership, joint venture, express or implied agency,
or employer-employee relationship between Buyer and Seller.
18.12 No Third Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto, the Official Noteholders Committee and the
Indenture Trustee, as indenture trustee, their respective successors and
permitted assigns, and no other person or entity shall be entitled to rely upon
or receive any benefit from this Agreement or any term hereof. Notwithstanding
anything herein to the contrary, nothing herein shall be construed to prevent
any party in interest (including, but not limited to, any official committee
appointed in the Bankruptcy Cases and the Indenture Trustee) from filing a
Chapter 11 plan of reorganization in the Bankruptcy Cases of ACBA, CPPI and The
Claridge Hotel and Casino Corporation, or any of them, proposing the
Transaction. Buyer shall be required to consummate this Transaction in
accordance with the terms hereof regardless of whether the Confirmation Order
confirms a plan filed by ACBA, CPPI, The Claridge Hotel and Casino Corporation
or any other party in interest.
18.13 Survival. Except as otherwise expressly set forth herein,
the covenants, warranties, representations and indemnities of Seller and Buyer
contained in this Agreement shall not survive the Closing, but shall be merged
into the documents delivered by Seller at the Closing.
18.14 No Personal Liability. No general or limited partner of
ACBA, no officer, director, agent, employee, stockholder or partner of a partner
of CPPI, no disclosed or undisclosed principal of Seller, and no person or
entity in any way affiliated with Seller shall have any personal liability with
respect to this Agreement, any instrument delivered by Seller at the Closing, or
the Transaction, nor shall the property of any such person or entity be subject
to attachment, levy, execution or other judicial process. Buyer's recourse with
respect to the obligations of each Seller hereunder or any document or agreement
executed or delivered by each Seller in connection with the Transaction is
expressly limited to the real and personal property that each respective Seller
may from time to time own.
18.15 Payments in U.S. Dollars. All payments to be made under
this Agreement shall be made in lawful money of the United States of America.
18.16 Execution. The submission of this Agreement for
examination does not constitute an offer by or to either party. This Agreement
shall be effective and binding only after due execution and delivery by all the
parties hereto.
18.17 Attorney's Fees; Forum. In the event an action is
commenced to enforce the terms of this Agreement, the prevailing party in such
action shall be entitled to payment of its reasonable attorney's fees by the
losing party. Any such action must be brought in the Bankruptcy Court.
18.18 Further Assurances. Prior to and on the Closing Date, the
parties agree to execute and deliver such other documents, or to take such
further actions, as are reasonably and customarily required to consummate or
make effective the Transaction and the agreements contained in this Agreement.
Seller shall not however, be obligated to deliver any such documents or to take
any such actions after the Closing Date.
18.19 Interpretations. This Agreement shall not be construed
either for or against Buyer or Seller, but shall be interpreted in accordance
with the general tenor of its language. Masculine or feminine pronouns shall be
substituted for the neuter form and vice versa, and the plural shall be
substituted for the singular form and vice versa in any place or places in this
Agreement where the context requires such substitution or substitutions. The
parties also mutually agree that all of the provisions of this Agreement are to
be construed as covenants and conditions as though the words importing such
covenants and conditions were used in each instance.
18.20 Access to Books and Records. Notwithstanding anything to
the contrary contained herein, Buyer shall permit Seller and Seller's agents,
employees, representatives and consultants, upon no less than 24 hours prior
written notice and during regular office business hours, to review and copy all
or any portion of the books, records, financial statements, operating statements
or other files, documentation or information transferred to Buyer on the Closing
Date. On and after the Closing Date, Buyer shall provide Seller, Seller's
agents, employees, representatives and consultants, and any trustee or other
official selected pursuant to the Plan, with adequate space located at the
Improvements sufficient to effectuate the wind-up of the businesses and
existence of ACBA, CPPI and The Claridge Hotel and Casino Corporation. Buyer
shall endeavor to provide Seller with a suitable office in which to effectuate
the referenced winding- up in a location in proximity to the existing office
space presently used by Seller, subject to the provision by Seller of
commercially appropriate protection of Buyer from liabilities which arise from
Seller's use or occupancy of such office space, which protection may, at the
reasonable discretion of Seller and Buyer, be in the form of a waiver of
liability acceptable to Buyer, in its reasonable discretion. The location and
amount of space to be provided shall be designated by Seller subject to the
reasonable approval of Buyer, but in no event shall such space be larger than
300 square feet. Notwithstanding the foregoing to the contrary, Buyer's
obligation to provide space at the Improvements to ACBA, CPPI and The Claridge
Hotel and Casino Corporation shall expire at 5 p.m. on the 180th day after the
Closing Date. In addition, Buyer shall maintain and keep any such books,
records, statements, files, documentation or information for the longer of the
applicable period set forth in and in accordance with the Casino Control Act,
the New Jersey state tax code and the Code, and any regulations promulgated
thereunder. This Section 18.20 shall survive the Closing.
IN WITNESS WHEREOF, the parties have caused this instrument to be
executed as of the date first above written.
SELLER:
THE CLARIDGE AT PARK PLACE, INCORPORATED, a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------
Xxxxx X. Xxxxxx, Xx.
President
ATLANTIC CITY BOARDWALK ASSOCIATES, L.P., a New Jersey limited partnership
By: AC Boardwalk Partners, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx
President
BUYER:
PARK PLACE ENTERTAINMENT CORPORATION
By: /s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
Executive Vice President and Chief
Financial Officer
