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EXHIBIT 2.1
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT ("Agreement") dated
as of January 31, 1997 is between LEISURE TIME CASINOS & RESORTS, INC., a
Colorado corporation ("Buyer"), and STAR OF CINCINNATI, INC., formerly known as
STAR CRUISES OF CINCINNATI, INC., an Ohio corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Buyer and Seller are parties to the Asset Purchase Agreement
dated as of January 25, 1996 (including all amendments, supplements or other
modifications thereto whether verbal or in writing at any time made prior to the
date of this Agreement, the "Asset Purchase Agreement"); and
WHEREAS, Buyer and Seller desire to enter into this Agreement for the
purpose of amending and restating the Asset Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing recitals, the
mutuality of the terms, covenants and conditions of this Agreement and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to amend and restate the Asset Purchase
Agreement to read and provide as follows:
1. Purchase and Sale. Buyer agrees to purchase from Seller, and Seller
agrees to sell, transfer, convey, assign and deliver to Buyer at the Closing (as
such term is defined below), all of the following assets (the "Assets"):
1.1 The whole of the M/V "Star of Cincinnati", f/k/a "Star of
Detroit", United States Coast Guard ("USCG") Official No. 671576, together with
all of her tackle, apparel, furniture, fittings, tools, spare parts, supplies,
equipment, boats, engines, machinery, anchors, chains, electronics and all other
appurtenances and accessories thereunto appertaining and belonging (the
"Vessel").
1.2 The whole of the "Star Landing", f/k/a "Lively Xxxx", Xxxx
Xx. 000000, together with all of her tackle, apparel, furniture, fittings,
tools, spare parts, supplies, equipment, boats, machinery, anchors, chains,
electronics and all other appurtenances and accessories thereunto appertaining
and belonging (the "Star Landing").
1.3 All right, title and interest of Seller in and to "Star of
Cincinnati", "Star Landing" and all other trade names and trademarks used by
Seller in its former riverboat excursion
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dining cruise business headquartered in Cincinnati, Ohio and the right to use
the name "Star" and all derivatives thereof.
1.4 All plans, logs, reports, data, notes, instruction books
and other information pertaining to the Vessel or the Star Landing.
1.5 Any other tangible and intangible assets pertaining to the
Vessel or the Star Landing, including, without limitation, all licenses,
permits, approvals, consents and certifications.
2. Purchase Price. In consideration of the sale, transfer, conveyance,
and assignment of the Assets to Buyer, Buyer shall pay to Seller at the Closing
the sum of $2,550,000 in cash (the "Purchase Price") by wire transfer of
immediately available funds.
3. No Mortgages, Liens, Rights or Encumbrances. The Assets are being
sold by Seller and being purchased by Buyer free and clear of all mortgages,
liens, rights and other encumbrances and Buyer is not assuming and shall not
otherwise be liable, directly or indirectly, for any of Seller's contracts,
agreements, leases, debts, obligations or liabilities whatsoever in respect of
the Assets.
4. Closing.
4.1 The closing of Buyer's purchase of the Assets contemplated
by this Agreement (the "Closing") shall take place at the offices of Xxxxxxx,
Xxxxxxxx & Klekarnp, P.L.L., 1800 Provident Tower, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx, commencing at 10:00 a.m. local time on a date mutually
agreeable to the parties on or before February 3, 1997 or at such later time and
date as the parties shall hereafter agree upon (the "Closing Date").
4.2 Seller shall deliver possession of (i) the Vessel to Buyer
at its current location in Panama City, Florida and (ii) the Star Landing to
Buyer at its current location in Dayton, Kentucky, each safely afloat.
Possession of the other Assets shall be delivered by Seller to Buyer at
Cincinnati, Ohio or such other location mutually agreeable to the parties,
immediately after the consummation of the Closing.
4.3 Except for Seller completing repairs to the Vessel's
propellers, starboard shaft and gears attributable to the Vessel having struck a
submerged object on or about February 3, 1996, the Vessel shall, upon Closing,
be sold "AS IS, WHERE IS" without drydocking. If all of such repairs to the
Vessel shall not have been completed before the Closing Date, the Closing will
still occur and an escrow will be established at the Closing with a portion of
the Purchase Price to cover the cost of the uncompleted repairs. The Star
Landing shall, upon Closing, be sold "AS IS, WHERE IS" without drydocking.
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5. Seller's Warranties and Representations. Seller hereby represents
and warrants to Buyer (which representations and warranties shall survive the
Closing) as follows:
5.1 Corporate Status of Seller. Seller is a corporation duly
organized and validly existing in good standing under the laws of Ohio and has
the corporate power and authority to sell the Assets under this Agreement.
Seller was formerly known as Star Cruises of Cincinnati, Inc.
5.2 Authorization of Transaction. The execution, delivery, and
performance of this Agreement by Seller has been duly and validly authorized by
its board of directors and the shareholders of Seller and Seller has taken all
necessary corporate action required for the authorization and approval of this
Agreement. This Agreement is binding upon and enforceable against Seller in
accordance with its terms.
5.3 Performance of Agreement. The execution and delivery of
this Agreement by Seller and the consummation of the transactions contemplated
herein will not result in the breach of any of the terms, covenants or
conditions of, or constitute a default with respect to, the Articles of
Incorporation or the ByLaws/Regulations of Seller or any contract, agreement,
indenture, note, bond, license or other instrument or obligation to which the
Seller is now a party or by which the Seller or any of its property or assets,
including the Assets, may be bound or affected or, to Seller's knowledge,
violate any law or any rule or regulation of any administrative agency or
governmental body or any order, writ, injunction or decree of any court,
administrative body or governmental body applicable to Seller or the Assets.
5.4 Title to Assets. Seller is the true and lawful owner of
all of the Assets. On the Closing Date, title to and ownership of the Assets
shall be transferred to Buyer free and clear of all mortgages, liens, rights and
other encumbrances, including all indebtedness and other amounts owed to
Comerica Bank, Detroit, Michigan, and all maritime and tax liens, or any other
debts, obligations or liabilities, including, without limitation, the claims of
customers, vendors or governmental authorities whatsoever relating to the
Assets.
5.5 Litigation. Except for the litigation now pending in the
United States District Court for the Northern District of Florida, Panama City
Division, entitled Comerica Bank v. M/V Star of Cincinnati, being Case No.
5:96CV212/RV, which litigation shall be settled or otherwise dismissed with
prejudice on or before the Closing, there is no existing or, to the best of
Seller's knowledge, threatened action, suit or proceeding, either legal,
equitable or administrative, affecting the Assets or any part thereof in any
court or by any federal, state, county or municipal department, commission,
board, bureau, agency or other governmental authority.
5.6 Violation of Laws. The Seller is not in violation of any
law, rule, regulation or court or administrative orders or processes applicable
to it or the Assets.
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5.7 Solvency of Seller. The Seller is not insolvent and will
not be rendered insolvent as a result of the consummation of the transactions
contemplated by this Agreement.
5.8 Broker. At the Closing, Seller agrees to pay to Coastal
Marine the full amount of any and all fees, commissions and other amounts due
and payable to Coastal Marine as a result of the consummation of the
transactions provided for in this Agreement. Buyer shall have no liability or
obligation to pay any fees, commissions or other amounts due or payable to any
broker, finder or agent, including, without limitation, Coastal Marine, with
respect to this Agreement or the transactions contemplated hereby.
5.9 Environmental Matters. (a) Except for fuel and other
petrochemical products used or useful in the operation or maintenance of the
Vessel or the Star Landing, the Assets are, as of the date of this Agreement,
and will be, as of the Closing Date, free and clear of any and all Hazardous
Materials (as such term is defined below).
(b) Except for the flooding of the Star Landing on
or about May 13, 1996 and the Release of Hazardous Materials in the environment
as a result of such flooding (the "May 1996 Release"), Seller has not caused or
suffered to occur any Release (as such term is defined below) of any Hazardous
Materials with respect to the Assets at any time prior to the date hereof.
(c) The term "Hazardous Materials" as used in this
Agreement shall mean (i) any substance, material or waste, the generation,
handling, storage, treatment or disposal of which is regulated by any federal,
state or other governmental authority in any jurisdiction in which Seller owned,
leased or operated any of the Assets or forms the basis of liability under any
federal, state or other environmental law, rule or regulation, including any
material or substance which is either (A) defined as, (B) included in the
definition, listing or identification of, or (C) otherwise regulated as, a
"solid waste," "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste" or "restricted hazardous waste" or other similar
term or phrase under any environmental laws, or (ii) petroleum or any fraction
or by-product thereof, asbestos, polychlorinated biphenyls, or radioactive
substances.
(d) The term "Release" as used in this Agreement
shall mean any release, spill, emission, leaking, pumping, pouring, emptying,
discharging, injecting, escaping, dumping, disposing, leaching or migration of
Hazardous Materials in the indoor or outdoor environment by Seller (or by a
person under Seller's direction or control), including the movement of a
Hazardous Material through or in the air, soil, surface water, ground water or
property.
(e) The May 1996 Release was cleaned up by Heritage
Environmental Services, Inc. on behalf of Seller in accordance with the
requirements of the United States Coast
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Guard. Seller shall cause Heritage Environmental Services, Inc. to deliver to
Buyer a certificate to such effect at or prior to the Closing. Such certificate
shall be in form and substance reasonably acceptable to Buyer.
6. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller (which representations and warranties shall survive the
Closing) as follows:
6.1 Corporate Status of Buyer. Buyer is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Colorado and has the corporate power and authority to purchase the Assets
under this Agreement.
6.2 Authorization of Transaction. The execution, delivery and
performance of this Agreement by Buyer has been duly and validly authorized by
its board of directors and Buyer has taken all necessary corporate action
required for the authorization and approval of this Agreement. This Agreement is
binding upon and enforceable against Buyer in accordance with its terms.
6.3 Performance of Agreement. The execution and delivery of
this Agreement by Buyer and the consummation of the transactions contemplated
herein will not result in the breach of any of the terms, covenants or
conditions of, or constitute a default with respect to, the Articles of
Incorporation or the Bylaws/Regulations of Buyer or any contract, agreement,
indenture, note, bond, license or other instrument or obligation to which Buyer
is now a party or by which Buyer or any of its property or assets may be bound
or affected or, to Buyer's knowledge, violate any law or any rule or regulation
of any administrative agency or governmental body or any order, writ, injunction
or decree of any court, administrative body or governmental body applicable to
Buyer.
7. Tax Matters. Buyer shall be responsible for the payment of any and
all sales, use, transfer or delivery taxes, assessments, fees or duties of any
kind arising out of the sale, transfer or delivery of the Assets levied or
imposed by any federal, state or local government or taxing authority. If the
levy or imposition of any such tax, assessment, fee or duty shall be made upon
the Seller, Buyer shall pay such amount to Seller upon demand of the amount
thereof. Seller shall promptly notify Buyer thereof and Buyer shall have the
right to contest any such tax, assessment, charge, fee or duty.
8. Bulk Sales. Buyer and Seller agree that the bulk sales laws are
inapplicable to the transactions contemplated by this Agreement.
9. Risk of Loss. The risk of loss to any of the Assets being purchased
shall remain with Seller until Closing pursuant to Section 4.2. If any Asset
sold hereunder shall be substantially damaged or destroyed by fire, casualty or
other cause prior to the Closing, Seller shall immediately
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notify Buyer thereof and furnish to Buyer a written statement of the amount of
the insurance, if any, payable on account thereof. For purposes of this
Agreement, Assets shall be deemed to be substantially damaged if the cost of
replacement or repair of all damages prior to completion of this transaction
will exceed $200,000. Within 10 days after receipt of notice of any such damage
or destruction, Buyer may terminate this Agreement. If any Asset is not
substantially damaged, it shall be promptly repaired or replaced at Seller's
expense prior to the Closing and the Closing Date shall be extended, if
necessary, for a reasonable period in order to permit such repairs or
replacement.
10. Conditions to Obligations of Buyer to Close. The obligation of
Buyer to consummate this Agreement shall be subject to the following conditions,
any one or more of which may be waived by Buyer:
10.1 Seller shall have delivered a Xxxx or Bills of Sale for
the Assets, in form and substance satisfactory to Buyer, free and clear from all
liens, charges and encumbrances whatsoever.
10.2 Seller shall have obtained an Abstract of Title from the
United States Coast Guard covering the Vessel. The Abstract of Title shall be
dated as of a recent date prior to the Closing Date reasonably accepted to
Buyer. Seller shall have delivered the original Abstract of Title and
Certificate of Documentation for the Vessel to Buyer.
10.3 Seller shall have delivered to Buyer or shall have caused
to be delivered to Buyer documentation in form and substance reasonably
acceptable to Buyer and its legal counsel evidencing and providing for the
satisfaction, termination, release and discharge of all mortgages, liens, claims
and other encumbrances on, to or in the Assets except for the Preferred
Mortgages dated May 28, 1992 granted by Seller to Xxxxx X. Xxxxx, Trustee,
securing indebtedness in the aggregate amount of $3,000,000 (the "Xxxxx
Mortgages").
10.4 Seller and Buyer shall have entered into an agreement
(the "Xxxxx Agreement") with Xxxxx X. Xxxxx, Trustee, whereby in consideration
of Buyer's issuance to Xxxxx X. Xxxxx, Trustee, of 150,000 unregistered shares
of Buyer's Common Stock, Xxxxx X. Xxxxx, Trustee, shall execute and deliver to
Buyer documentation in form and substance reasonably acceptable to Buyer and its
legal counsel evidencing and providing for the satisfaction, termination,
release and discharge of (a) the Xxxxx Mortgages referred to in Section 10.3 and
described in the Abstract of Title for the M/V Star of Cincinnati referred to in
Section 10.2 and (b) all indebtedness secured by the Xxxxx Mortgages. The Xxxxx
Agreement shall be in form and substance reasonably acceptable to Seller and its
legal counsel and also to Buyer and its legal counsel. The transactions and
deliveries of documentation and shares of Buyer's Common Stock under the Xxxxx
Agreement shall close and occur simultaneously with the closing of this
Agreement.
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10.5 Prior to the Closing of this Agreement, Seller shall have
assigned to Buyer and Seller shall have caused Comerica Bank to have assigned to
Buyer all of their respective rights, as insureds, loss payees or otherwise, in
and to all insurance proceeds due or to become due with respect to claims for
known or unknown damages that are allocable to insurance policies covering the
Vessel and the Star Landing. The form and substance of each such assignment
shall be reasonably acceptable to Buyer and its legal counsel. The assignment
from Comerica Bank shall be effective immediately upon full payment to Comerica
Bank of all amounts payable to it by Seller secured by the Assets.
10.6 Seller shall have conducted searches of the necessary
offices where uniform commercial code filings are made and shall have determined
that the Assets are free and clear of all mortgages, liens, claims and other
encumbrances.
10.7 Seller shall have caused Heritage Environmental Services,
Inc. to have delivered to Buyer the certificate referred to in Section 5.9(e).
10.8 The representations and warranties made by Seller herein
shall be deemed to be repeated on the Closing Date with the same force and
effect as if made on such date and shall be true and correct in all respects as
though made on and as of the Closing Date.
10.9 Each and all of the covenants and agreements of Seller to
be performed or complied with prior to or on the Closing Date shall have been
duly performed or complied with by Seller.
10.10 All necessary corporate action shall have been taken by
Seller's board of directors and shareholders to authorize the execution,
delivery and performance of this Agreement.
10.11 The Assets shall be in as good a condition as they were
on the date of execution of this Agreement, reasonable wear and tear excepted,
subject only to the provisions of Section 4.3.
10.12 Seller shall have delivered such resolutions,
certificates and other documents reasonably requested by Buyer or Buyer's
counsel.
11. Conditions to Obligations of Seller to Close. The obligation of
Seller to consummate this Agreement shall be subject to the following
conditions, any one or more which may be waived by Seller:
11.1 The representations and warranties made by Buyer herein
shall be deemed to be repeated on the Closing Date with the same force and
effect as if made on such date, and shall be true and correct in all respects as
though made on and as of the Closing Date.
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11.2 All necessary corporate action shall have been taken by
Buyer's board of directors to authorize the execution, delivery and performance
of this Agreement.
11.3 Buyer shall have delivered such resolutions, certificates
and other documents reasonably requested by Seller or Seller's counsel.
12. Indemnification: Setoff and Noncompetition.
12.1 Buyer shall indemnify and hold Seller, Xxxxxxx X. Xxxxx
and R. Xxxxxx Xxxx harmless from and against any cost or expense, including
attorneys' fees and expenses, arising out of or relating to:
(a) all debts, liabilities and obligations of Buyer
of any nature arising from Buyer's ownership or use of the Assets after the
Closing Date; and
(b) any liability, loss, claim, damage or deficiency
resulting directly or indirectly from any misrepresentation, breach of warranty
or nonfulfillment of any term, covenant or condition on the part of Buyer under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by Buyer hereunder.
12.2 Seller shall indemnify and hold Buyer harmless from and
against any cost and expense, including attorneys' fees and expenses, arising
out of or relating to:
(a) all debts, liabilities and obligations of Seller
of any nature arising from the Assets, whether known or unknown, incurred on or
prior to the Closing Date; and
(b) any liability, loss, claim, damage or deficiency
resulting directly or indirectly from any misrepresentation, breach of warranty
or nonfulfillment of any term, covenant or condition on the part of Seller under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by Buyer hereunder.
12.3 If either party shall suffer or incur any liability,
loss, claim, damage or deficiency resulting directly or indirectly from any
misrepresentation, breach of warranty or nonfulfillment of any term, covenant or
condition on the part of the other party under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the other party, then, in each such case, such
party shall, in addition to the exercise of all of its other rights and remedies
under applicable law, be entitled, with or without notice to the other party, to
setoff against all amounts then or thereafter owed by it to the other party the
full and absolute amount of all such liabilities, losses, claims, damages or
deficiencies suffered or incurred by it.
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12.4 (a) Seller agrees that, for a period of five (5) years
following the Closing Date, neither Seller or any corporation, partnership or
other entity which is affiliated with Seller nor Xxxxxxx X. Xxxxx or R. Xxxxxx
Xxxx or any corporation, partnership or other entity which is controlled by
Xxxxxxx X. Xxxxx or R. Xxxxxx Xxxx (collectively, the "Non-Compete Parties")
shall engage in the excursion dining and/or gaming cruise business in direct
competition with Buyer's operation of the Vessel in the excursion dining and/or
gaming cruise business, except for the excursion dining and/or gaming cruise
business as operated by R. Xxxxxx Xxxx in Key West, Florida on the date of this
Agreement (the foregoing covenant is hereinafter referred to as the "Non-Compete
Covenant").
(b) Buyer acknowledges and agrees that the ownership,
operation and/or management of marinas and/or marina facilities by any of the
Non-Compete Parties shall not constitute direct competition in breach of the
Non-Compete Covenant even if a vessel ("Competing Vessel") engaged in direct
competition with Buyer's operation of the Vessel in the excursion dining and/or
gaming cruise business is docked or moored at/in any marina or marina facility
owned, operated or rnanaged by any of the Non-Compete Parties so long as none of
the Non-Compete Parties directly or indirectly owns (through equity ownership or
otherwise), operates or manages the Competing Vessel.
(c) Buyer further acknowledges and agrees that the
ownership, operation and/or management of hotels, motels, restaurants, casinos
and other hospitality, dining and gambling facilities by any of the Non-Compete
Parties shall not constitute direct competition in breach of the Non-Compete
Covenant so long as any such facility engaged in direct competition with Buyer's
operation of the Vessel in the excursion dining and/or gaming cruise business is
located on land and permanently affixed to land.
(d) In furtherance of compliance with the Non-Compete
Covenant by the Non-Compete Parties, Buyer shall notify Seller in writing as to
the location of the Vessel's dockage or moorage at the time Buyer first places
the Vessel in the excursion dining and/or gaming cruise business and on each
subsequent occasion, if any, thereafter Buyer moves the Vessel to a different
place of dockage or moorage and each such notification shall be deemed to
constitute notice thereof to all of the Non-Compete Parties; provided, however,
Buyer's failure to so notify Seller at any time shall not relieve any of the
Non-Compete Parties from their obligation to comply with the Non-Compete
Covenant if, at any time during which direct competition in breach of the
Non-Compete Covenant shall occur, the breaching Non-Compete Party or Parties
shall otherwise have actual knowledge of the location of the dockage or moorage
of the Vessel.
(e) Notwithstanding the foregoing provisions of this
Section 12.4, if, at the time Buyer first places the Vessel in business and on
each subsequent occasion, if any, thereafter Buyer moves the Vessel to a
different place of dockage or moorage, any of the
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Non-Compete Parties are already engaged in a business at such location
("Pre-Existing Business") that would constitute a breach of the Non-Compete
Covenant after Buyer places the Vessel in business at such location, the
Pre-Existing Business shall not be deemed to constitute a breach of the
Non-Compete Covenant and the Non-Compete Parties shall thereafter be entitled to
engage in such business at such location and shall not be limited or restricted
by the Non-Compete Covenant.
13. Termination. The transactions contemplated by this Agreement may be
terminated on or before the Closing Date as follows: (a) by mutual written
agreement of each of the parties hereto; (b) by Buyer or Seller if any
representation or warranty made herein by the other was untrue or false in any
material respect as of the date given or made, (c) by Buyer or Seller if any
condition precedent to its obligation to close has not occurred and cannot be
satisfied within a reasonable period of time. In the event this Agreement is
terminated pursuant to any of the foregoing provisions, except as set forth
below, this Agreement shall forthwith become wholly void and of no force or
effect and there shall be no liability on the part of the parties hereto. If for
any reason on the Closing Date there has been non-fulfillment of any undertaking
by or condition precedent for any party not waived in writing by the party in
whose favor such undertaking or condition runs, the party in whose favor such
undertaking or condition runs may refuse to consummate the transactions
contemplated by this Agreement without any liability or obligation on its part
whatsoever. In the event of any non-fulfillment of an undertaking by Buyer or by
Seller, the refusal by Buyer or by Seller to consummate the transactions hereby
contemplated because of non-fulfillment by the other party shall not constitute
an election of remedies by Buyer or by Seller and Buyer or Seller may pursue
whatever legal rights and remedies they may have at law or in equity by reason
of such non-fulfillment or failure by Buyer or Seller.
14. Expenses. Buyer and Seller shall each bear their own legal,
accounting, appraisal, and other expenses in connection with the negotiation,
preparation and consummation of this Agreement and transactions contemplated
hereunder.
15. Covenants Pending Closing. Seller agrees to cooperate with Buyer so
as to insure a smooth and orderly transition of the transfer of the Assets to
Buyer. Seller shall insure that Buyer has access to the Vessel and the Star
Landing, including ingress and egress rights. Between tne date of this Agreement
and the Closing Date, Seller shall not, witnout the prior written cons.ent of
Buyer, (a) enter into any other agreement or incur any other obligation with
respect to the Assets; or (b) sell, abandon or otherwise dispose of or pledge,
mortgage or encumber any of the Assets.
16. Further Assurances. From time to time after the date hereof, at
Buyer's request and without further consideration, Seller shall execute and
deliver such instruments of conveyance, assignment and transfer and take such
other actions as Buyer may reasonably require to enable Seller to more
effectively transfer to Buyer and to put Buyer in possession of the Assets.
17. Survival of Representations and Warranties. The representations and
warranties set
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forth herein shall survive the Closing.
18. Notices. Whenever it is provided in this Agreement that any notice
or other communication shall or may be given to or served upon a party by the
other party, or whenever a party desires to give or serve upon the other party
any communication with respect to this Agreement, each such notice or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt or three days
after deposit in the United States Mail, registered or certified mail, return
receipt requested, with proper postage prepaid, (b) upon transmission, when sent
by telecopy or other similar facsimile transmission (with such telecopy or
facsimile confirmed by telecopy answerback) or by delivery of a copy by personal
delivery, (c) one (1) business day after deposit with a reputable overnight
courier with all charges prepaid or (d) when delivered, if hand-delivered by
messenger, all of which shall be addressed to the party to be notified and sent
to the address or facsimile number as follows:
If to Seller at: Star of Cincinnati, Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No. (000) 000-0000
With a copy to: Webb, Hoskins, Xxxxxx & Strafford, P.S.C.
3010 Lexington Financial Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxxx Xxxx, Esq.
Facsimile No. (000) 000-0000
If to Buyer at: Leisure Time Casinos & Resorts, Inc.
0000 Xxxxxx Xxxx
Xxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
With a copy to: Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
1800 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No. (000) 000-0000
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19. Amendment. This Agreement may not be amended or terminated orally,
but may only be amended by an agreement in writing signed by the party against
whom enforcement of any waiver, amendment, modification, extension, discharge or
termination is sought.
20. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
Closing, will supersede and replace all prior agreements, understandings and
negotiations, oral and written, between the parties hereto with respect to the
subject matter hereof, including, without limitation, (i) the Asset Purchase
Agreement, (ii) the letter agreement dated January 25, 1996 from Xxxx X. Xxxxxxx
on behalf of Buyer to Xxxxxxx X. Xxxxx on behalf of Seller (the "1/25/96 Letter
Agreement"), and (iii) the agreement entitled "REVISED AGREEMENT FOR PURCHASE OF
THE STAR OF CINCINNATI AND STAR LANDING" dated December 21, 1996 between the
parties (the "12/21/96 Terms Agreement").
Effective upon Closing, each of the parties hereby forever waives,
releases and discharges and agrees to hold the other party and each of its
shareholders, directors, officers, employees, agents and independent contractors
(the "Released Parties") harmless from and against any and all claims, rights,
suits or liabilities arising directly or indirectly from or by reason of the
Asset Purchase Agreement, the 1/25/96 Letter Agreement and the 12/21/96 Terms
Agreement, whether known or unknown as of the date hereof. Effective upon
Closing, each of the parties hereby covenants and agrees not to xxx any of the
Released Parties with respect to any of such matters.
Effective upon Closing, each of the parties hereby further covenants
and agrees that it shall be solely responsible for and shall bear all of its
legal, accounting, appraisal and other expenses paid, incurred or accrued by it
under or as a result of the Asset Purchase Agreement, the 1/25/96 Letter
Agreement and the 12/21/96 Terms Agreement.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one -and the same instrument.
22. Assignability. Neither this Agreement nor any of the parties'
rights hereunder shall be assignable by any party hereto without the prior
written consent of the other party hereto, except that Buyer shall be entitled
to assign its rights hereunder to any wholly-owned subsidiary of Buyer and
Seller shall be entitled to assign or transfer the Purchase Price or the Stock
Consideration to any of its shareholders ("Permitted Transfers"). If any
Permitted Transfer shall occur, the assigning or transferring party shall give
written notice thereof to the other party.
23. Governing Law. This Agreement and the performance hereunder shall
be governed by and construed in accordance with the laws of the State of Ohio.
13
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24. Waiver. Any consent by any party, or waiver of, any breach of any
provision of this Agreement by the other, whether express or implied, shall not
constitute a consent, waiver of, or excuse for any breach of any other provision
or subsequent breach of this provision. Any waiver of any terms of this
Agreement shall be in a writing executed by the waiving party.
25. Construction. The parties acknowledge that this Agreement was
initially prepared by legal counsel for Buyer and that both parties and their
respective legal counsel have read and negotiated the language used herein. The
parties agree that because both parties participated in negotiating and drafting
this Agreement, no rule of construction shall apply to this Agreement which
construes ambiguous language in favor of or against any party by reason of the
party's role in drafting this Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amended and Restated Asset Purchase Agreement on the date first above written.
STAR OF CINCINNATI, INC.
By: /s/
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Name:
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Title:
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LEISURE TIME CASINOS &
RESORTS, INC.
By: /s/
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Name:
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Title:
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