TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT
AND XXXX OF SALE
THIS TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT AND XXXX OF SALE
("Agreement") made this 15th day of January, 1997 by and between Xxxxxxx
Town Racing Limited Partnership, a West Virginia limited partnership
("Racing"), Xxxxxxx Town Races, Inc., a West Virginia corporation ("CTR"
and together with Racing, collectively, "Optionor"), and PNGI Xxxxxxx Town
Gaming Limited Liability Company, a West Virginia limited liability
company ("PCTG").
BACKGROUND
Optionor and PCTG are parties to that certain Amended and Restated
Option Agreement dated as of February 17, 1995 (the "Option Agreement"),
pursuant to which Optionor agreed to transfer certain assets to PCTG and
PCTG agreed to assume certain liabilities of Optionor, all as more
specifically set forth therein. This Agreement is entered into in
connection with the closing of the transactions contemplated by the Option
Agreement.
All initially capitalized terms used in this Agreement (including in
the Exhibits hereto) but not defined herein shall have the meanings
ascribed to them in the Option Agreement or, if not defined therein, in
the Definitions Appendix attached to this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements contained herein and in the Option Agreement, and
intending to be legally bound, hereby agree as follows:
1. Transfer. Optionor hereby sells, assigns, transfers,
conveys and delivers to PCTG, free and clear of all Security Interests,
the Property (as defined in the Option Agreement but not including any
real property which is being transferred pursuant to a deed of even date
herewith) including, but not limited to all personalty and other assets,
tangible or intangible, and rights relating or pertaining to, or used or
held for use in connection with the Optionor's business or the operation
of the Property and Service Contracts, tradenames (including but not
limited to "Xxxxxxx Town Race Track" and "Shenandoah Downs"), equipment
(including but not limited to trucks,
1
tractors, tote boards, starting gates, and the like) relating thereto, and
the Rights of First Refusal including without limitation those assets
listed on Schedule 1A attached hereto (the "Acquired Assets"), and
excluding only those assets listed on Schedule 1B attached hereto (the
"Excluded Assets"). Each Optionor is transferring that part of the
Property as is owned by it as indicated on Schedule 1A attached hereto.
2. Assignment. Optionor hereby assigns,
transfers, conveys and delivers to PCTG all of
Optionor's rights and interests under the Service
Contracts and other agreements pertaining to the
Business set forth on Schedule 2 attached hereto (the
"Assigned Contracts").
3. Assumption of Liabilities. PCTG hereby agrees to assume,
discharge, pay and perform, as applicable, in accordance with and subject
to their respective terms, to the extent such are legally binding
agreements, and provided that PCTG has been assigned all legal and
equitable rights, remedies, defenses, claims, counterclaims or rights of
set-off, Optionor, or either of them has, had or might have in relation
thereto, only those specific obligations of Optionor set forth on Schedule
3 attached hereto (the "Assumed Liabilities").
4. Cooperation by Optionor. Upon PCTG's request, Optionor and
their partners, officers, representatives and successors shall perform all
acts reasonably necessary to ensure the full and complete enjoyment by
PCTG and its successors and assigns of all right, title and interest in
and to the Acquired Assets and the Assigned Contracts, including without
limitation, the execution and delivery of such further assignments, bills
of sale, certificates, applications, instruments and other documents as
may reasonably be requested by PCTG.
5. Use of Facilities by Optionor. For a period of ninety (90)
days following the date hereof, PCTG shall permit Optionor to utilize
certain office space at Xxxxxxx Town Race Track for administrative
purposes, as PCTG and Optionor may agree.
6. Xxxx of Sale; Covenants. This Agreement is
intended also to and does constitute a Xxxx of Sale to
the Acquired Assets. Each Optionor covenants to PCTG
that each Optionor is the lawful owner of that portion
2
of the Acquired Assets and the Assigned Contracts owned by it and has the
right to transfer such Acquired Assets and such Assigned Contracts to
PCTG, free and clear of all Liens, Security Interests, claims, charges and
encumbrances thereon or related thereto.
7. "Bringdown" and Survival of Representations, Warranties and
Covenants of Optionor. Optionor hereby represents, warrants and covenants
to PCTG that, only to the extent set forth in Paragraph 4 of the Option
Agreement and except as set forth in Schedule 7, the representations and
warranties made by Optionor in the Option Agreement, attached hereto, are
true and correct as of the date hereof; that the representations and
warranties of Optionor in this Agreement and the Option Agreement or in
any related agreement (including in each case any schedules or exhibits
hereto or thereto) do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements or
information contained herein or therein not misleading; and Optionor
further represents, warrants and agrees that the representations and
warranties of Optionor in the Option Agreement and in this Agreement shall
survive recordation of the deed related to the Property and the closing of
the transactions contemplated by the Option Agreement and this Agreement.
8. Payment of Obligations. Racing and CTR hereby covenant and
agree that they shall pay, perform or discharge their respective accounts
payable and other liabilities and obligations in a commercially reasonable
manner as soon as practicable following the date hereof but saving to each
of them any right or remedy they may have to contest any such liability or
obligation, including but not limited to its obligations to One Valley
Bank, Inc. and those certain liabilities and obligations listed on
Schedule 8 attached hereto.
9. Disbursements. PCTG and Optionor agree that
PCTG shall disburse the purchase price for the Property
as set forth on Schedule 9 attached hereto, including a
holdback/escrow for certain items as described on
Schedule 9.
10. Consents. Optionor covenants that it has
obtained such consents as are required to transfer to
PCTG the Acquired Assets and to assign the Assigned
Contracts as set forth above; however, to the extent
any such consents have not been obtained, Optionor
3
covenants and agrees to obtain such consents as may be necessary to
transfer to PCTG the Acquired Assets and to assign to PCTG the Assigned
Contracts, or to take any other actions necessary or desirable to
otherwise provide to PCTG the economic benefit of such assets and
agreements, as if such assets and agreements had been transferred to PCTG.
11. No Third Party Beneficiaries. This Agreement
shall not confer any rights or remedies upon any person
other than the parties hereto and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer,
Assignment and Assumption Agreement and Xxxx of Sale to be executed by
their respective duly authorized officers as of the date first above
written.
PNGI XXXXXXX TOWN GAMING
LIMITED LIABILITY
COMPANY
BY: /s/ Xxxxxxx X. Xxxx
XXXXXXX X. XXXX, President
XXXXXXX TOWN RACING LIMITED
PARTNERSHIP
By: D.K.W. Inc. authorized
General Partner
BY: /s/ D. Xxxxx Xxxxxx
D. XXXXX XXXXXX, President
AND
By: G&G Associates, Inc.,
authorized General Partner
By: /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX, President
4
XXXXXXX TOWN RACES, INC.
By: /s/ Xxxxx X. Xxxxx
XXXXX X. XXXXX, President
5
DEFINITIONS APPENDIX
"Intellectual Property" means all trademarks (including the names
"Xxxxxxx Town Race Track" and "Shenandoah Downs" and any other names used
by Optionor, and all derivations thereof), tradenames, trademark
applications, registration and renewals, logos and corporate names
(together with any derivations, modifications or adaptations thereof, and
all goodwill associated therewith), patents (and applications), copyrights
(and applications and registrations), confidential information and similar
proprietary information.
"Liability" means any liability, obligation or commitment of any
nature (whether known or unknown, disclosed or undisclosed, asserted or
unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, and whether due or to become due), including any liability
or obligation for Taxes.
"Lien" means any interest in property securing an obligation owed
to, or a claim, right or interest of, any Person, whether created by
agreement, statute, common law or judicial or governmental authority,
action or proceeding, including, but not limited to, any Security
Interest, lien, encumbrance, mortgage, assignment, pledge, conditional
sale, lease, consignment or bailment.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, a limited liability partnership, an unincorporated
organization, or a governmental entity (or any department, agency, or
political subdivision thereof) or any similar entity.
"Premises" means the approximately 250 acre property on which the
Xxxxxxx Town Race Track and Shenandoah Downs are located and on which the
Business is conducted, and which is owned by Racing and leased to CTR.
"Rights of First Refusal" means CTR's rights of first
refusal with respect to approximately 250 acres of land
adjoining or adjacent to the Premises, pursuant to (i)
Right of First Refusal dated December 24th, 1990
between Xxxxxx X. Xxxxxxxx, III, Xxxxx Xxxxxxxx, Xxxxxx
6
Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxx X. Xxxxx and
Xxxxxxxxx X. Xxxxxxx, as Grantors, and Xxxxxxx Town Races, Inc. as
Grantee, and recorded in the Jefferson County Clerk's Office in Deed Book
675 beginning at page 547, and (ii) Right of First Refusal dated December
28th, 1990 between Xxxx X. Xxxxxx, Guardian ad Litem for Xxxxxxx Xxx
Xxxxxxxx, and Xxxxxxx Xxx Xxxxxxxx, an infant, as Grantor, and Xxxxxxx
Town Races, Inc. as Grantee, and recorded in the Jefferson County Clerk's
Office in Deed Book 675 beginning at page 556.
"Security Interest" means any mortgage, pledge, Lien, encumbrance,
charge, Tax, or other security interest or claim of any kind.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes
under Code Sec. 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value
added, alter-native or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
7
