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EXHIBIT 10.15
AGREEMENT
AGREEMENT effective as of October 30, 1995, by and between National
Lodging Companies, Inc., a Minnesota corporation ("Lodging"), and National
Gaming Companies, Inc., a Minnesota corporation ("Gaming").
RECITALS
WHEREAS, Lodging has identified and developed an opportunity to purchase
the Jubilee Casino located in Cripple Creek, Colorado (the "Jubilee Casino");
and
WHEREAS, Lodging has certain rights and interests in parcels of real
estate known as the "Xxxxx Lots" and the "Xxxxxxxx Lots," which lots are
located across the street and diagonally from the Jubilee Casino (said lots and
the Jubilee Casino shall be collectively referred to herein as the "Cripple
Creek Project"); and
WHEREAS, Lodging desires to assign and transfer to Gaming, and Gaming
desires to acquire, the Cripple Creek Project from Lodging upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, Lodging and Gaming agree as follows:
1. Property to be Transferred. Effective as of the date hereof (the
"Effective Date"), Lodging hereby assigns and transfers to Gaming (i) all
rights, trade secrets, opportunities, notes, files, documents, the value of
cash advances, property, both tangible as well as intangible, memoranda and all
other related or similar materials prepared, developed or compiled by Lodging
with respect to the Cripple Creek Project, and (ii) 393,750 shares of Lodging's
authorized, unissued and fully-paid shares of common stock, par value $.01 per
share (the "Lodging Stock"), to be utilized by Gaming to enable it to acquire
all ownership interests in the Jubilee Casino from the 000 Xxxxx Xxxxxx Limited
Partnership and to acquire certain real estate known as the "Xxxxxx Lots" and
the "Xxxx Lots". The items referred to in this Section 1 shall be collectively
referred to herein as the "Property."
2. No Liabilities Assumed. Gaming does not assume any debts,
liabilities, or contractual or other obligations of Lodging of any kind
or nature whatsoever, except as specifically set forth in this Agreement.
Lodging shall continue to be liable for, and shall pay all obligations and
liabilities whatsoever incurred by it in connection with the Cripple Creek
Project.
3. Consideration. In consideration of Lodging's assignment and transfer
of the Property, Gaming hereby agrees to issue to Lodging 3,900,000
shares of the authorized, unissued common stock, par value $.01 per share, of
Gaming (the "Gaming Shares").
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4. Representations, Warranties and Covenants of Lodging. To induce
Gaming to enter into this Agreement and to consummate the transactions
contemplated by it, Lodging hereby represents and warrants to Gaming, and
covenants, as follows:
(a) Lodging is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Minnesota. Lodging
has full corporate power and authority to conduct its business as
now conducted and to enter into and perform its obligations under
this Agreement.
(b) This Agreement constitutes a valid and binding obligation of
Lodging, enforceable in accordance with its terms, except as may
be limited by bankruptcy, moratorium or other laws affecting the
rights of creditors generally, and the execution of this
Agreement by Lodging and the performance by Lodging of its
obligations hereunder have been duly authorized by all necessary
corporate action.
(c) Lodging owns and has good and marketable title to the
Property, free and clear of any judgments, liens, security
interests, encumbrances, charges, and claims of any kind or
nature. The shares of Lodging Stock, when issued pursuant
hereto, shall be validly issued, fully-paid and nonassessable.
(d) The transactions contemplated by this Agreement will not
result in the violation or breach of any contract, commitment, or
understanding to which Lodging is a party.
(e) Lodging acknowledges that: (1) the Gaming Shares have not
been registered under the Securities Act of 1933, as amended (the
"Act") or the securities or blue sky laws of any state or
jurisdiction; (2) it is acquiring the Gaming Shares for
investment and not with a view to distribution; (3) Gaming has no
obligation to register the Gaming Shares under the Act, except
that Gaming agrees to grant to Lodging, with respect to the
Gaming Shares, the same registration rights that Gaming grants to
underwriters of an initial public offering of Gaming's Common
Stock, with respect to Gaming Shares they may acquire upon the
exercise of warrants, subordinate, however, to the prior rights
of such underwriters to sell their shares of Gaming common in any
offering as to which registration rights have been exercised.
(f) Lodging agrees to indemnify and hold Gaming, its officers,
directors and shareholders harmless for all liabilities,
obligations, losses, damages, penalties, fees, charges and
expenses (including, without limitation, reasonable attorneys'
fees and expenses) that Gaming or its officers, directors and
shareholders may suffer or incur which arise out of or relate to:
(i) any of Lodging's acts or omissions prior to the date hereof,
whether or not related to the Cripple Creek Project, or (ii) any
breach of the representations, warranties, covenants, and
agreements of Lodging made in this Agreement and any related
documents or instruments.
The foregoing representations, warranties and covenants shall survive the
closing of the transactions contemplated by this Agreement.
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5. Representations, Warranties and Covenants of Gaming. Gaming hereby
represents and warrants to Lodging, and covenants, as follows:
(a) Gaming is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Minnesota and has full
corporate power and authority to enter into, and perform its obligations
under, this Agreement.
(b) This Agreement constitutes a valid and binding obligation of
Gaming, enforceable in accordance with its terms, except as may be limited
by bankruptcy, moratorium or other laws affecting the rights of creditors
generally, and the execution of this Agreement by Gaming and the
performance by Gaming of its obligations hereunder have been duly
authorized by all necessary corporate action.
(c) The shares of Gaming Stock, when issued to Lodging pursuant
hereto, shall be validly issued, fully-paid and nonassessable.
(d) Gaming agrees to indemnify and hold Lodging, its officers,
directors and shareholders harmless for all liabilities, obligations,
losses, damages, penalties, fees, charges and expenses (including, without
limitation, reasonable attorney fees and expenses) that Lodging, it
officers, directors and shareholders may suffer or incur which arise out of
or relate to: (i) Gaming's acts or omissions from and after the date hereof
with respect to the Cripple Creek Project or the operation of the Jubilee
Casino, or (ii) any breach of the representations, warranties, covenants,
and agreements of Gaming made in this Agreement and any related documents
or instruments.
The foregoing representations, warranties and covenants shall survive the
closing of the transactions contemplated by this Agreement.
6. Governing Law. This Agreement shall be governed by the laws of the
State of Minnesota and shall be enforceable by, and binding upon, the parties
hereto and their respective legal representatives, successors, and assigns. The
rights and obligations of the parties under this Agreement may not be assigned
except as permitted in a writing signed by all parties.
7. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter described in this Agreement and
shall supersede all previous negotiations, commitments, or writings with respect
to such subject matter. This Agreement may not be modified and no party shall
be deemed to have waived any provision hereof, except as set forth in a writing
signed by the party to be charged thereby. There are no representations or
warranties among the parties in connection with this Agreement except as set
forth or referred to herein.
8. Notices. All notices or other communications required by or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by certified mail, postage prepaid, or by overnight national
courier (e.g., UPS and Federal Express), to the parties at their addresses
listed below. Any party may designate an additional or another
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address upon giving notice to the other party pursuant to this Section. Notice
given in any manner other than as stated herein shall be deemed effective only
upon receipt by the party to whom such notice is given.
Notice to Lodging: National Lodging Companies, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, Chairman
Notice to Gaming: National Gaming Companies, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Chief Executive
Officer
9. Miscellaneous.
(a) Additional Documents. Each of the parties, without further
consideration, agrees to execute such additional documents as may be
reasonably necessary to carry out the purposes and intent of this Agreement
and to fulfill the obligations of the respective parties hereunder.
(b) Waiver. No waiver by any party of any condition, or of any
breach of any term, covenant, representation, or warranty contained in this
Agreement shall be deemed or construed as a further or continuing waiver of
any such condition or breach or waiver of any other condition or of the
breach of any other term, covenant, representation or warranty of this
Agreement.
(c) Counterparts. For the convenience of the parties any number of
counterparts hereof may be executed and each such executed counterpart
shall be deemed an original, but all such counterparts together shall
constitute one and the same instrument.
(d) Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
NATIONAL LODGING COMPANIES, INC.
By /s/Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx
Chairman
NATIONAL GAMING COMPANIES, INC.
By /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
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