AMENDMENT TO ASSET PURCHASE AGREEMENT
AMENDMENT
TO ASSET PURCHASE AGREEMENT
This
AMENDMENT TO ASSET PURCHASE AGREEMENT (this “Amendment”), dated as
of July 20, 2010, is made by and between XX Xxxxxxxxxx XX, LLC, a Washington
limited liability company (“Buyer”), and Xxxxx
Xxxxxxxx Limited, in its capacity as court-appointed receiver and not in its
personal capacity (the “Receiver”) for Big
Nevada, Inc., a Washington corporation, Gameco, Inc., a Washington corporation,
Gaming Consultants, Inc., a Washington corporation, Gaming Management, Inc., a
Washington corporation, Golden Nugget Tukwila, Inc., a Washington corporation,
Hollydrift Gaming, Inc., a Washington corporation, Little Nevada, Inc., a
Washington corporation, Mill Creek Gaming, Inc., a Washington corporation, Royal
Casino Holdings, Inc., a Washington corporation, and Silver Dollar Mill Creek,
Inc., a Washington corporation. Capitalized terms used and not
otherwise defined in this Amendment shall have the meanings ascribed to them in
the Purchase Agreement (as defined below).
RECITALS
A. Buyer
and the Receiver are parties to that certain Asset Purchase Agreement dated as
of April 14, 2010 (the “Purchase Agreement”),
pursuant to which the Receiver agreed to sell to Buyer, and Buyer agreed to
purchase and acquire from the Receiver the Purchased Assets and to take an
assignment of and assume from the Receiver the Assumed Liabilities.
B. Buyer
and the Receiver wish to amend the Purchase Agreement as provided herein, in
accordance with Section 13.9 of the Purchase Agreement and Paragraph 32 of the
U.S. Approval Order, and subject to the rights and obligations of the Receiver
granted to it pursuant to the Approval Orders, other applicable orders of the
Canadian Court and the Bankruptcy Court, and under applicable federal, state and
local laws, rules and regulations.
AGREEMENT
In
consideration of the foregoing and the mutual covenants herein contained, Buyer
and the Receiver agree to amend the Purchase Agreement as follows:
1. Amendment Concerning SD Tukwila
Casino. The Purchase Agreement shall be amended as set forth
in this Section
1 to reflect that the SD Tukwila Casino will not be purchased by
Buyer. Accordingly:
1.1 Schedule H referenced
in Recital H of the Purchase Agreement shall be deleted in its entirety and
replaced with Schedule
H attached hereto.
1.2 Schedule 2.1 of the
Purchase Agreement shall be deleted in its entirety and replaced with Schedule 2.1 attached
hereto.
1.3 Schedule 2.2 of the
Purchase Agreement shall be deleted in its entirety and replaced with Schedule 2.2 attached
hereto.
1.4 Schedule 2.3(a) of
the Purchase Agreement shall be deleted in its entirety and replaced with Schedule 2.3(a)
attached hereto.
1.5 Schedule 2.6(b) of
the Purchase Agreement shall be deleted in its entirety and replaced with Schedule 2.6(b)
attached hereto.
1.6 The
first sentence in Section 2.6(b)(iv)(B) of the Purchase Agreement shall be
deleted in its entirety and replaced with the following:
The
Casino, if any, not acquired by Buyer pursuant to clause 2.6(b)(A)(y), and the
Club Hollywood Casino, shall each be sold to Buyer, on and subject to the terms
and conditions hereof, but only concurrently with, or after, Buyer’s acquisition
of the Casinos and other Purchased Assets referred to in clause 2.6(b)(A), in
any order and pursuant to one or more Extension Closings.
1.7 Schedule 3.5(a) to
the Purchase Agreement shall be deleted in its entirety and replaced with Schedule 3.5(a)
attached hereto.
1.8 The
following sentence shall be inserted immediately prior to the last sentence of
Section 9.7(a) of the Purchase Agreement:
Furthermore,
commencing as of the Closing or the Extension Closing, as applicable, and
continuing for a period of at least six (6) months thereafter, Buyer shall hire
and retain at least ten (10) employees from Little Nevada’s operation at the
Silver Dollar Tukwila Casino in Tukwila, Washington (the “SD Tukwila Casino”)
on terms and conditions substantially equivalent to the terms and conditions on
which such persons are then employed by the SD Tukwila Casino; provided,
however, that the Buyer shall do so solely at the request and for the
convenience of Receiver and shall not incur any liability or obligation
whatsoever in connection therewith (other than the hiring and retention
obligations set forth in this sentence) or in connection with any action the
Receiver takes with respect to the SD Tukwila Casino, including any liability or
obligation for claims by any Person which may be related to or derive from such
action.
2. References. All
references to “this Agreement” in the Purchase Agreement, or otherwise to the
Purchase Agreement in any of the Schedules or Exhibits thereto, shall mean the
Purchase Agreement as amended by this Amendment. References in the Purchase
Agreement to provisions “herein” or attachments “hereto” shall include the
provisions of this Amendment.
3. Entire
Agreement. This Amendment, together with the Purchase
Agreement, constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they relate in any way to the subject
matter hereof.
4. No Other
Amendments. Except as specifically amended hereby, the terms
of the Purchase Agreement remain and continue in full force and effect and are
hereby confirmed in all respects.
5. Counterparts; Facsimile;
Email. This Amendment may be signed in counterparts, each of
which will be deemed to be an original copy and all of which will form a single
agreement. Signatures required for this Amendment may be made by
facsimile and/or email and shall have the same force and effect of written
signatures.
[Signatures
are on the following page]
2
IN
WITNESS WHEREOF, the parties have executed and delivered this Amendment to the
Purchase Agreement as of the date first written above.
BUYER:
XX
XXXXXXXXXX XX, LLC
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Manager
RECEIVER:
XXXXX XXXXXXXX LIMITED in its
capacity as interim receiver
and
receiver and manager of the Companies, and not in its personal
capacity
By: /s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx, CA, CIRP
Title:
Senior Vice President
FORTRESS:
FORTRESS CREDIT
CORP.,
individually
and in its capacity as Agent
for FCO
and FCF
By: /s/
Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Chief Operating Officer
Schedule
H
Businesses
Big
Nevada operates the Silver Dollar Casino in Sea-Tac, Washington (the “Sea-Tac
Casino”).
Golden
Nugget operates the Golden Nugget Casino in Tukwila, Washington (the “GN Tukwila
Casino”).
Hollydrift
operates the Club Hollywood Casino (the “Club Hollywood
Casino”) in Shoreline, Washington.
Little
Nevada operates the Silver Dollar Casino in Renton, Washington (the “Renton
Casino”).
RCH
operates the Royal Casino Everett, Washington (the “Royal
Casino”).
Silver
Dollar operates the Silver Dollar Casino in Millcreek, Washington (the “Millcreek
Casino”). Assets owned by Mill Creek are utilized at the
Millcreek Casino.
Each of
the above-described casinos is a house-banked card room casino with restaurant
and bar operations. The Sea-Tac Casino, GN Tukwila Casino, Club
Hollywood Casino, Renton Casino, Royal Casino and Millcreek Casino are referred
to collectively as the “Casinos” and
individually as a “Casino”.
Each of
Gameco, Gaming Management and Gaming Consultants distributes gaming-related
products and supplies gaming-related services to the Companies and other
subsidiaries of Evergreen.
Schedule
2.1
Purchased
Assets
(See
Attached)
Schedule
2.2
Additional
Excluded Assets
|
1.
|
Progressive
jackpot funds held by any of the Companies pursuant to Sections 000-00-000
through 000-00-000 of the Washington Administrative
Code.
|
|
2.
|
Any
other bonus jackpots in connection with any game at any
Casino.
|
|
3.
|
Current
Assets that the Receiver and Buyer mutually agree to exclude from the
calculation of the Working Capital for any
Casino.
|
|
4.
|
All
the properties, assets and rights used in the operation of the SD Tukwila
Casino.
|
Schedule
2.3(a)
List
of Assumed Real Property Leases
|
Casino/Company
|
Assumed Real Property Lease(s)
|
Known Cure Cost
|
||||
|
Sea-Tac
Casino
|
192nd
Pacific Properties Lease, effective June 1, 2002, between 192nd Pacific
Properties L.L.C. and Xxx X. Xxxxxx and Xxxxxx X. Xxxxxx and Big Nevada,
Inc. d/b/a “The Silver Dollar Casino”.
|
$ | 0.00 | |||
|
GN
Tukwila Casino
|
Golden
Nugget Casino Lease, dated November 29, 2004, between Xxxxx Xxxxxxx and
Yong Xxx Xxxxxxx and Golden Nugget Tukwila, Inc. (formerly Vormsberg
Company).
|
$ | 0.00 | |||
|
Millcreek
Casino
|
Lease
Agreement, dated December 3, 2001, between Xxxxx X. & Xxxxxxx X.
Xxxxxxx and Tri-Western Syndicated Investment Co. dba Tri West North Creek
Partnership and Xxxxxxx X. and Xxxxxxx X. Xxxxxx dba Golden Nugget Casino,
as modified by Addendum A to Lease, dated December 3, 2001, First
Amendment to Lease, dated April 15, 2002, Second Amendment to Lease,
undated, Third Amendment to Lease, undated, Fourth Amendment to Lease,
dated August 15, 2003, and Fifth Lease Amendment, dated June 3, 2004,
between Tri West North Creek Partnership and Xxxxxxx X. Xxxxxx and Xxxxxxx
Xxxxxx d/b/a Golden Nugget Casino. (Xxxxxxx Properties - Mill
Creek, LLC, is successor in interest to original landlord and Silver
Dollar Mill Creek, Inc. is successor in interest to original
tenant.)
|
$ | 0.00 | |||
|
Club
Hollywood Casino
|
Commercial
Premises Lease, dated March 5, 2007, between Old 99 Property Group, L.L.C.
and Hollydrift Gaming, Inc. d/b/a Club Hollywood.
Commercial
Premises Lease (Parking Lot), dated March 5, 2007, between Old 99 Property
Group, L.L.C. and Hollydrift Gaming, Inc. d/b/a Club
Hollywood.
|
$ | 2,386.32 |
1 |
||
|
Renton
Casino
|
Lease
Agreement, dated March 8, 2004, between Little Family, LLC and Little
Nevada, Inc.
Sublease
Agreement, dated December 21, 2007, between Little Nevada, Inc. and Xxxx
Xxxxxxx Children’s Center, as amended by Amendment to Sublease Agreement,
effective December 1, 2008.
|
$ | 0.00 | |||
|
Royal
Casino
|
Commercial
Premises Lease, dated December 22, 2006, between Xxxxx and Xxxxxx Xxxxxx
and Royal Casino Holdings, Inc.
|
$ | 0.00 | |||
1 To be
allocated between the two leases for Club Hollywood
Casino.
Schedule
2.6(b)
Payment
of Balance of Base Consideration Amount
1. If
an initial Closing occurs and the Purchased Assets sold to Buyer at such Closing
do not include
all of the Purchased Assets, then the amount payable by Buyer at such initial
Closing pursuant to Section 3.1(b) shall be reduced by the following amount or
amounts:
(a) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Sea-Tac Casino, then the amount payable by Buyer at the
initial Closing shall be reduced by $4,500,000 (i.e., 40.6540% of the Base
Consideration Amount).
(b) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the GN Tukwila Casino, then the amount payable by Buyer at
the initial Closing shall be reduced by $1,500,000 (i.e., 13.5501% of the Base
Consideration Amount).
(c) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Millcreek Casino, then the amount payable by Buyer at the
initial Closing shall be reduced by $1,300,000 (i.e., 11.7435% of the Base
Consideration Amount).
(d) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Renton Casino, then the amount payable by Buyer at the
initial Closing shall be reduced by $299,996 (i.e., 2.7100% of the Base
Consideration Amount).
(e) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Royal Casino, then the amount payable by Buyer at the
initial Closing shall be reduced by $900,000 (i.e., 8.1301 % of the Base
Consideration Amount).
(f) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Club Hollywood Casino, then the amount payable by Buyer
at the initial Closing shall be reduced by $2,570,000 (i.e., 23.2159% of the Base
Consideration Amount).
(g) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Gaming Consultants, then the amount payable by Buyer at
the initial Closing shall be reduced by $1 (i.e., 0% of the Base
Consideration Amount).
(h) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Gameco, then the amount payable by Buyer at the initial
Closing shall be reduced by $1 (i.e., 0% of the Base
Consideration Amount).
(i) If
the Purchased Assets sold at such initial Closing do not include the Purchased
Assets relating to the Gaming Management, then the amount payable by Buyer at
the initial Closing shall be reduced by $1 (i.e., 0% of the Base Consideration
Amount)
2. If
and at each such time as an Extension Closing occurs with respect to the
Purchased Assets associated with a Casino or Casinos (or applicable Company or
Companies) that were not transferred to Buyer at the initial Closing, then Buyer
shall pay to the Receiver, at such Extension Closing and as to each Casino being
transferred to Buyer at such Extension Closing, an amount equal to the amount by
which the Base Consideration Amount paid to the Receiver at the initial Closing
was reduced with respect to such Casino pursuant to Section 1 of this Schedule 2.6; provided, however, that for
the avoidance of doubt, the total Base Consideration Amount payable by Buyer
pursuant to this Agreement shall not exceed Eleven Million Seventy Thousand
Dollars ($11,070,000).
Schedule
3.5(a)
Unaudited
EBITDA Amount
|
Company
|
Name of Casino/Description of
Business
|
2009 EBITDA ($)
|
|||
|
Silver
Dollar Mill Creek, Inc.
|
Millcreek
Casino
|
689,891 | |||
|
Big
Nevada, Inc.
|
Sea-Tac
Casino
|
1,460,417 | |||
|
Hollydrift
Gaming, Inc.
|
Club
Hollywood Casino
|
984,433 | |||
|
Royal
Casino Holdings, Inc.
|
Royal
Casino
|
464,021 | |||
|
Little
Nevada, Inc.
|
Renton
Casino
|
178,238 | |||
|
Golden
Nugget Tukwila, Inc.
|
GN
Tukwila Casino
|
786,632 | |||
|
Gaming
Consultants, Inc.
|
Management
Company
|
(1,185,428 | ) | ||
|
Gaming
Management, Inc.
|
Management
Company
|
(685 | ) | ||
|
Gameco,
Inc.
|
Management
Company
|
3,122 | |||
|
Mill
Creek Gaming, Inc.
|
Dormant
Company
|
- | |||
|
TOTAL
|
3,380,641 | ||||
