EXECUTION COPY
AMENDMENT, dated as of July 1, 1997 (this "AMENDMENT"), to the
Stockholders Agreement, dated as of August 30, 1993 (the "STOCKHOLDERS
AGREEMENT"), by and among HARD ROCK HOTEL, INC., a Nevada corporation (the
"COMPANY"), HARVEYS CASINO RESORTS, a Nevada corporation formerly known as
Xxxxxx'x Wagon Wheel, Inc. ("HARVEYS"), and LILY POND INVESTMENTS, INC., a
Nevada corporation ("LILY POND"; and, together with Harveys, the
"STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, the Company, Harveys and Lily Pond are parties to the
Stockholders Agreement; and
WHEREAS, the Stockholders wish to amend the Stockholders Agreement and
waive certain provisions thereof in the manner provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
A. DEFINED TERMS. Terms defined in the Stockholders Agreement and used
herein shall have the meanings given to them in the Stockholders Agreement.
B. AMENDMENT TO STOCKHOLDERS AGREEMENT.
1. AMENDMENT TO SECTION 3.2. Section 3.2 of the Stockholders Agreement
is hereby amended by inserting the following at the end of clause (ii) thereof:
"PROVIDED that each such agreement shall be deemed terminated upon
the closing of a transaction pursuant to which a transfer in
accordance with Section 4.2(a) is made".
2. AMENDMENT TO SECTION 3.3. Section 3.3 of the Stockholders Agreement
is hereby amended by deleting such section in its entirety and substituting
in lieu thereof the following:
"CAPITAL EXPENDITURES. Notwithstanding anything to the contrary
contained herein, the Company may make, or enter into agreements
to make, such expenditures for computer hardware and software as
are reasonably necessary to enable the Company to operate the
Property as a first-class Project independent of the support
and/or resources of the Project Manager".
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3. AMENDMENT TO SECTION 4.2 Subsection 4.2(d) of the Stockholders
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lie thereof the following:
"(d) Except as provided above, the transfer of the Class A Stock by
Lily Pond or Xxxxxx'x to a third party".
4. AMENDMENT TO SECTION 4.6. Section 4.6 of the Stockholders Agreement
is hereby amended by deleting such section in its entirety and substituting
in lieu thereof the following:
"TERMINATION OF OBLIGATIONS. As of the effective date of any
transfer not prohibited hereunder by a Stockholder of its Shares
in the Company, such Stockholder's rights and obligations hereunder
shall terminate".
5. AMENDMENT TO SECTION 7.1. Subsection 7.1(c) of the Stockholders
Agreement is hereby amended by inserting the following proviso at the end
thereof:
"PROVIDED, that this subsection 7.1(c) shall not apply to any such
notification pursuant to an application by Lily Pond to acquire
Xxxxxx'x Shares and control the operations of the Project;".
6. AMENDMENT TO SECTION 9.11. Section 9.11 of the Stockholders
Agreement is hereby amended by deleting such section in its entirety.
C. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
on the date (the "AMENDMENT EFFECTIVE DATE") on which the following condition
precedent has been satisfied or waived:
1. The closing of the transactions contemplated by the Stock Purchase
and Management Buyout Agreement, dated as of the date hereof (the "STOCK
PURCHASE AND MANAGEMENT BUYOUT AGREEMENT"), among Harveys L.V. Management
Company, Inc., Harveys, Lily Pond and the Company shall have occurred;
PROVIDED, HOWEVER, that in respect of item B.2 above, this Amendment shall
become effective as of the date hereof and; PROVIDED, FURTHER, that anything
to the contrary notwithstanding, if the closing of the transactions
contemplated by the Stock Purchase and Management Buyout Agreement shall not
have occurred solely because the Stockholders will have been advised,
formally or informally, by the Nevada Gaming Authorities that they will not
be scheduled for a hearing because Xxxxx Xxxxxx does not meet the criteria
for licensing by the Nevada Gaming Authorities, or are otherwise advised by
the Nevada Gaming Authorities that Xxxxx Xxxxxx does not meet the criteria
for such licensing, then this Amendment shall become effective in respect of
item B.3 above only.
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D. GENERAL
1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by each of the Stockholders in the Stockholders Agreement are true and
correct in all material respects on and as of the Amendment Effective Date,
before and after giving effect to the effectiveness of this Amendment, as if
made on and as of the Amendment Effective Date.
2. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. (a) Each of
the Stockholders has the corporate power and authority, and the legal right,
to make and deliver this Amendment and to perform its respective obligations
under the Stockholders Agreement, as amended by this Amendment, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Amendment and the performance of its obligations under
the Stockholders Agreement, as so amended.
(b) No consent or authorization of, approval by, notice to, filing with
or other act by or in respect of, any Governmental Authority or any other
Person (each as defined in the Stock Purchase and Management Buyout Agreement)
is required in connection with the execution and delivery of this Amendment
by either Harveys or Lily Pond, or with the performance of their respective
obligations under the Stockholders Agreement, as amended by this Amendment.
(c) This Amendment has been duly executed and delivered on behalf of the
parties hereto.
(d) This Amendment constitutes a legal, valid and binding obligation of
each of Harveys, Lily Pond and the Company, enforceable against each such
party in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair dealing.
3. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Stockholders
Agreement are and shall remain in full force and effect.
4. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA.
(b) This Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
HARD ROCK HOTEL, INC.
By: /s/ Xxxxx Xxxxxx
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Title
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Secretary
HARVEYS CASINO RESORTS
By: Xxxxxxx Xxxxxxx
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Title: President/CEO
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Secretary
LILY POND INVESTMENTS, INC.
By: /s/ Xxxxx Xxxxxx
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Title:
