AC-145324/1
11/13/9711/13/97
DSO/kg
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT is made as
of November ___, 1997, between LAKESHORE HOTELS, LTD., a
Louisiana limited partnership in commendam ("Seller"), and
PLAYERS INTERNATIONAL, INC., a Nevada corporation, its designees
or assignees ("Purchaser").
R E C I T A L S
A. Seller and Purchaser are parties to a certain Asset
Purchase Agreement dated as of September 30, 1997 (the "Original
Agreement"); capitalized terms not defined herein are used as
defined in the Original Agreement, unless the context clearly
requires otherwise.
B. Based upon the PIP prepared by Holiday Inns, Seller
and Purchaser anticipate that the Holiday Inn Costs will far
exceed $1,500,000. Notwithstanding the termination rights
available to Purchaser under the provisions of Section 3.6(a) of
the Original Agreement as a result thereof, Purchaser desires to
complete the purchase of the Purchased Assets without performing
the PIP required by Holiday Inns. Purchaser will not be able to
obtain a New License Agreement without performing such PIP work
as required by Holiday Inns; and without such New License
Agreement, Purchaser cannot obtain the financing as originally
intended.
B. Purchaser has made arrangements for alternate
financing, but such alternate financing will require renewed,
supplemental or different consents and approvals before it can be
implemented.
C. In order to accommodate Purchaser's efforts to obtain
such alternate financing, Seller and Purchaser desire to modify
the Original Agreement as hereinafter set forth.
A G R E E M E N T S
Therefore, for good and valuable consideration, the receipt
and sufficiency of which are hereby mutually acknowledged, the
parties agree as follows:
1. Amendment re: Conditions. Section 6.2 of the
Original Agreement is hereby deleted entirely, and replaced with
the following:
6.2 Conditions to Purchaser's Obligations. The
obligation of Purchaser to consummate the transaction
contemplated hereby is subject to the fulfillment of all of
the following conditions on or prior to the Closing Date,
upon the non-fulfillment of any of which this Agreement may,
at Purchaser's option, be terminated pursuant to and with
the effect set forth in Article IX:
(a) Each and every representation and warranty
made by Seller shall have been true and correct when made
and shall be true and correct in all material respects as if
originally made on and as of the Closing Date.
(b) All obligations of Seller to be performed
hereunder through, and including on, the Closing Date
(including, without limitation, all obligations which Seller
would be required to perform at the Closing if the
transaction contemplated hereby were consummated) shall have
been performed.
(c) All of the Consents shall have been obtained.
(d) No suit, proceeding or investigation shall
have been commenced or threatened by any governmental
authority or private person(s), against any party (including
without limitation Seller and any of its affiliates, or any
partners, shareholders, officers or members of any of them),
on any grounds, the intent or likely effect of which
(exclusively or among other things) is to restrain, enjoin
or hinder, delay or to seek material damages on account of,
the consummation of the transaction contemplated hereby, or
to challenge any of the terms or provisions of this
Agreement, or arising out of this Agreement or the
transactions contemplated hereby.
(e) On or prior to December 15November 17, 1997,
Purchaser shall have received all required consents,
licenses and approvals of the transactions contemplated
hereunder (including without limitation, Purchaser's
financing thereof, and any changes to existing financing to
permit same) from the gaming and other regulatory
authorities having jurisdiction.
(f) Intentionally Omitted.
(g) On or prior to December 15November 17, 1997,
Purchaser shall have received the prior written approval of
Xxxxx Fargo Bank, N.A. and the Trustee for the holders of
Purchaser's debt securities to the transactions contemplated
hereby (including without limitation, Purchaser's financing
thereof, and any changes to existing financing to permit
same), all in form and substance satisfactory to Purchaser,
in its sole discretion.
(h) On or prior to November 2017, 1997, Purchaser
shall have obtained a commitment from Xxxxx Fargo Bank, N.A.
("Xxxxx Fargo") to modify Purchaser's existing line of
credit with Xxxxx Fargo to includemortgage financing for the
transactions contemplated hereby, on terms acceptable to
Purchaser, in its sole discretion, including without
limitation total borrowing availability under such line of
credit of Seventy Million Dollars ($70,000,000)in the amount
of at least seventy percent (70%) of the aggregate total of
the Purchase Price, Holiday Inn Costs, Purchaser's costs of
making Closing hereunder and Purchaser's other expenses
under the Letter of Intent and this Agreement.
(i) Intentionally OmittedOn or prior to
November 17, 1997, Purchaser shall have entered into a New
License Agreement and all related agreements, or agreed with
Holiday Inns upon the terms thereof, in either case on terms
acceptable to Purchaser, in its sole discretion, as provided
under Section 3.6 hereof and Purchaser shall not have
terminated this Agreement based on the aggregate total
amount of the Holiday Inn Costs, as provided under Section
3.6 hereof.
(j) On or before November 20, 1997October 16,
1997, Purchaser's Board of Directors shall have approved
this Agreement and the transactions contemplated hereby
(including without limitation, Purchaser's financing thereof
as described in subsection (h) hereof).
(k) Prior to Closing, Purchaser shall not have
terminated this Agreement: (A) during the Inspection
Period, as provided under Section 5.5 hereof; or (B) by
virtue of a casualty, as provided under Section 6.3 hereof;
or (C) by virtue of a taking, as provided under Section 6.4
hereof.
If, despite Purchaser's good faith efforts, either of the
conditions set forth in subsections (g) or (i) hereof has
not been satisfied by November 17, 1997, the Purchaser may,
at its option, extend the date for satisfaction thereof, as
described above, to December 2, 1997, by written notice to
Seller. If Purchaser so elects to extend such date for
either or both of such conditions, then the Closing Date
shall automatically be extended to December 17, 1997 for all
purposes hereunder.
2. Amendment re: Closing. Section 3.2 of the Original
Agreement is hereby deleted in its entirety and replaced with the
following:
3.2 Time and Place of Closing. The transaction
contemplated by this Agreement shall be consummated (the
"Closing") at 10:00 a.m. at the offices of Stockwell,
Sievert, Xxxxxxxx & Xxxxxxxxx, Xxx Xxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 on December 18,
1997December 2, 1997 or on such other date, or at such other
time or place, as shall be mutually agreed upon by Seller
and Purchaser. Notwithstanding the foregoing, if Purchaser
either party is unable, despite Purchaser'ssuch party's good
faith efforts, to complete Closing by such date and time
because a condition contained in Xxxxx Fargo's financing
commitment (as described in Section 6.2(h) hereof) has not
yet been satisfied, and such financing cannot therefore be
consummated, then Purchasersuch party may extend the date
for Closing to January 6, 1998December 17, 1997, upon
written notice to the other party hereunder, on or prior to
the original date for Closing. The foregoing extension
right is available only with respect to the originally
scheduled Closing, and any further extension of the date for
Closing may only be made upon the mutual agreement of the
parties. The date (or extended date, if applicable) on
which the Closing occurs in accordance with the preceding
sentences, is referred to in this Agreement as the "Closing
Date." The Closing shall be deemed to be effective as of
12:01 a.m. on the Closing Date at Lake Charles, Louisiana.
3. Amendment re: Allocation. The date for Purchaser to
submit its proposed allocation of the Purchase Price to Seller
under Section 3.5 of the Original Agreement is hereby reset and
extended to December 2, 1997.
4. Amendment re: Franchise.
(a) In consideration of Seller's agreements hereunder,
Purchaser hereby waives its right under the final sentence
of Section 3.6(a) of the Original Agreement, to terminate
the Original Agreement based on the amount of the Holiday
Inn Costs.
(b) The final sentence of Section 3.6(b) of the
Original Agreement is hereby amended to read as follows:
Purchaser shall not be liable for payment of the
Termination Fee if Purchaser does not complete Closing
hereunder, unless: (i) Closing does not occur because
of Purchaser's default hereunder; (ii) Seller has not
defaulted hereunder; and (iii) the Termination Fee
becomes payable (notwithstanding that Seller continues
to own and operate the Business) because of an act of
Purchaser, and through no act of Seller.
5. Amendment re: Return of Additional Deposit. The
penultimate sentence of Section 3.3(b) of the Original Agreement
is hereby deleted, and replaced with the following:
The Additional Deposit shall only be refunded to
Purchaser (x) on default by Seller, or (y) if the
condition on Purchaser's obligations regarding
Purchaser's ability to obtain financing is not
satisfied as provided under Section 6.2(h) hereof, or
(z) if the condition regarding Purchaser's Board of
Directors approvalHoliday Inn franchise matters under
Section 6.2(ji) hereof is not satisfied.
6. Amendment re: Employee Contact. Purchaser and Seller
agree that the Contact Date under Section 10.10(c) of the
Original Agreement shall in all events and for all purposes be:
(i) for salaried employees, December 2, 1997; and (ii) for hourly
employees, the earlier of December 15, 1997, or such earlier date
by which Purchaser shall have satisfied or waived the conditions
set forth in Sections 6.2(e) and 6.2(g) hereof.
7. Rooms; New Year's Arrangements. There is hereby
inserted in the Original Agreement a new Section 5.9, as follows:
5.9 Rooms; New Year's Arrangements
(a) Seller acknowledges Purchaser's need to have
extensive availability of rooms and hotel services for
Purchaser's gaming patrons for the New Year's Eve/New Year's
Day holiday. Therefore, in consideration of Purchaser's
agreements hereunder, Seller hereby agrees to reserve and
set aside for the exclusive use and occupancy of Purchaser
and its patrons: (i) that number of hotel rooms at the Hotel
for the room nights shown on Exhibit "A" hereto (the
"Reserved Rooms"); and (ii) all of Seller's banquet,
ballroom and meeting rooms and areas (the "Banquet
Facilities") for December 30 and 31, 1997, as shown on
Exhibit "A" hereto. Purchaser agrees to pay the lump sum
total price of $45,000 (including applicable taxes) for all
such Banquet Facilities and Reserved Rooms as described in
Exhibit "A", whether or not actually used or occupied for
the dates specified in Exhibit "A"; such payment to be
secured by a payment from Purchaser to Seller in the amount
of $70,000 (the "Advance Deposit"), to be made, in full, on
or before December 2, 1997. Seller agrees that the Advance
Deposit made by Purchaser pursuant to this Section 5.9(a)
shall be held by Seller as an advance deposit, and if
Closing is not extended by Purchaser as provided in Section
3.2 hereof, Purchaser shall receive a credit at Closing for
the full amount of such Advance Deposit as provided under
Section 3.7(a) of the Original Agreement. If Closing is
extended under Section 3.2 hereof, then at Closing,
Purchaser shall receive a credit for $25,000 of the Advance
Deposit (i.e., the portion not retained by Seller for the
Reserved Rooms and Banquet Facilities) as provided under
Section 3.7(a) of the Original Agreement. If the Closing is
extended under Section 3.2 hereof, but Closing is not held
because of Purchaser's default, Seller may retain the entire
Advance Deposit as damages hereunder.
(b) Incidental services such as set-up, security,
decoration, clean-up, sound and lighting shall be provided
by Seller at prices and on terms to be mutually agreed
between Seller and Purchaser. Failing such mutual
agreement, Purchaser may provide any of such incidental
services without cost or expense to Seller. In addition,
Seller shall provide alcoholic beverages to Purchaser for
Purchaser's shows, parties and special events at the Hotel
on the nights of December 30 and 31, 1997, at Seller's
actual cost without markup or profit, on a method of
calculation and payment terms to be mutually agreed between
Seller and Purchaser. Purchaser shall have the right to
have such beverages served by Purchaser's staff, provided
that: (i) service of alcoholic beverages at the Hotel by
Purchaser's staff complies with applicable law; and (ii)
Purchaser has provided to Seller the certificates or other
evidence of insurance as described in subsection (e) hereof
.
(c) During (or in preparation for) any of the special
events to be held by Purchaser at the Hotel on December 30
or 31, 1997, Purchaser may locate members of Purchaser's
staff in and at the Hotel to provide services and
accommodations to Purchaser's patrons while present at the
Hotel, including without limitation, welcome, patron-
relations, gift delivery, event management and similar
services for Purchaser's hotel guests and shows, parties
and/or special events at the Hotel.
(c) From and after the date hereof, Seller agrees not
to accept any reservations or bookings of guest rooms or
ballroom/conference/banquet facilities at the Hotel for any
of the dates listed on Exhibit "A" hereto, which would
interfere with the agreements of Seller described in this
Section 7.
(d) Seller agrees to cooperate in all reasonable ways
with Purchaser's efforts to promote the New Year's Eve
holiday (dates and room nights as specified in Exhibit "A"
hereto) as a special event of Purchaser, including special
decorations provided by Purchaser, permission to use the
name of the Hotel in Purchaser's advertising and marketing
efforts, use of the Hotel's pylon sign, and similar matters.
(e) Purchaser hereby indemnifies and agrees to hold
Seller harmless from and against all loss, cost, damage,
claim or expense caused by or arising out of Purchaser's
activities at the Hotel contemplated under this Section 5.9,
including without limitation, the acts or omissions of
Purchaser's staff present at the Hotel in connection with
such activities. Prior to December 19, 1997, Purchaser
shall provide to Seller certificates or other evidence of
general liability, worker's compensation, and liquor
liability insurance covering Purchaser's activities at the
Hotel as contemplated under this Section 5.9.
8. Effect of Amendment. Except as specifically set
forth herein, the Original Agreement shall remain unmodified and
in full force and effect, binding upon the parties thereto.
[Signatures on Following Page]
SELLER:
THUS DONE AND SIGNED in the presence of the undersigned
attesting witnesses and me, Notary Public at Lake Charles,
Louisiana on this ____ day of November, 1997.
WITNESSES: LAKESHORE HOTELS, LTD., a
Louisiana
partnership in commendam
__________________________
___________________________
By:
Name:
Title:
_
NOTARY PUBLIC
PURCHASER:
THUS DONE AND SIGNED in the presence of the undersigned
attesting witnesses and me, Notary Public at
_____________________, ____________________ on this _____ day of
November, 1997.
WITNESSES: PLAYERS INTERNATIONAL, INC., a
Nevada corporation
_____________________________
_____________________________
By:
Name:
Title:
NOTARY PUBLIC
JOINDER
The undersigned hereby join in the execution of this
Amendment No. 1, simultaneously with Seller, to evidence their
agreement to be bound by the provisions hereof:
THUS DONE AND SIGNED in the presence of the undersigned
attesting witnesses and me, Notary Public at Lake Charles,
Louisiana on this ____ day of November, 1997.
WITNESS (as to all signatures)
___________________________________
______________________________
Xxx X. Xxxxx, Xx.
WITNESS (as to all signatures)
___________________________________
______________________________
Xxx X. Xxxxx, Xx.
______________________________
Xxxxxx X. Xxxxx, Xx.
______________________________
Xxxxxx X. Xxxxx, Xx.
_
Notary Public
