ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, made and entered into as of the 16th day of
August 1995, by and between THE XXXXXX CORPORATION, a Louisiana corporation
("Seller"), having an office located at 000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxxx 00000, and PLAYERS LAKE XXXXXXX, INC., a Louisiana
corporation, its assignee or nominee (the "Buyer"), having an address at 000
Xxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000.
R E C I T A L S
A. Seller is the owner of certain lands and premises, together with the
buildings and improvements constructed thereon, and certain property therein
contained or used in the operation thereof, located in the City of Lake Xxxxxxx,
Calcasieu Parish, Louisiana, from which Seller conducts a hotel business (the
"Business"), as more particularly described in this Agreement.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller, the above described properties and assets used in such Business, upon
the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the recitals set forth above, which
are incorporated herein by reference, and for the payments, mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Sale and Purchase of Assets.
(a) Upon and subject to the terms and conditions set forth in
this Agreement, Seller hereby agrees to sell, transfer and convey to Buyer, and
Buyer hereby agrees to purchase and accept from Seller, all of the following
properties and assets:
(1) All those certain lots, tracts and parcels of
lands and premises, together with the buildings and improvements located
thereon, and all appurtenances thereto, situate at 000 Xxxx Xxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxxx, as more particularly described in the legal description
annexed hereto as Exhibit "A", and by this reference made a part hereof
(collectively, the "Premises").
(2) All items of furniture, furnishings,
fixtures, equipment, machinery, parts, tools, vehicles and all other tangible
personal property owned by Seller and located in or about and employed in the
operation of the Premises, a current inventory of which is annexed hereto as
Exhibit "B", and by this reference made a part hereof (the "Personalty"), which
Personalty shall, however, be subject to replacements, substitutions and
additions in the ordinary course of business between the date of this Agreement
and the date of Closing (as hereinafter defined).
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September 18, 1995
(3) All of Seller's right, title and interest, if
any, in and to the name "Players Lakefront Hotel", or any derivation thereof
(the "Trade Name").
(4) All of Seller's right, title and interest in,
to and under that certain Lease dated May 18 and 19, 1993 between Seller, as
landlord, and Buyer, as tenant, relating to portions of the Premises, as
supplemented and/or amended (the "Lease").
(5) All of Seller's "Inventory of Supplies"
(which term shall include such paper goods, maintenance and cleaning supplies,
towels and linens and similar disposable and expendable supplies employed by
Seller in connection with the operation of the Business) existing on the date of
Closing. Seller shall supply to Buyer on the date of Closing a statement of
Inventory of Supplies then existing.
(6) All of Seller's claims and rights (and
benefits arising therefrom) with or against all persons whomsoever, including,
without limitation, all rights against suppliers under warranties covering any
of the Personalty or Inventory of Supplies or any other Assets described in this
Section 1, and all Permits (as hereinafter defined) and Environmental Permits
(as hereinafter defined), to the extent they are legally transferable by Seller.
(7) All computer software, including all
documentation and source codes with respect to such software and licenses and
leases of software, all marketing and promotional materials, catalogues and
advertising literature, and all telephone numbers of Seller.
(8) Those certain contracts, license agreements,
distribution agreements, sales representative agreements, service agreements,
supply agreements, franchise agreements, computer software agreements and
technical service agreements listed on Exhibit "C", annexed hereto and by this
reference made a part hereof (the "Assigned Contracts").
(9) All customer lists, customer records and
information, and all books and records pertaining to the Assets (as hereinafter
defined).
(b) The sale of the Premises includes all right, title and
interest, if any, of Seller in and to any present or former waterbottom or
interest therein related to the Premises or the operation thereof, and/or any
land lying in the bed of any street, road, highway, avenue or alley (opened or
unopened, existing or proposed, now vacated or hereafter to be vacated) in front
of or adjoining the Premises, to the center line thereof, and all right, title
and interest of Seller in and to any award made or to be made in lieu thereof
and in and to any unpaid award for damage to the Premises by reason of change of
grade of any street, road, highway, avenue or alley; and Seller agrees to
execute and deliver to Buyer, at Closing, or thereafter, on demand, all proper
instruments for the conveyance of such title and the assignment and collection
of any such award.
(c) The Premises, Personalty, Trade Name, Lease,
Inventory of Supplies and any
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September 18, 1995
other assets or properties described in this Agreement, or which are sold by
Seller and purchased by Buyer pursuant to the terms of this Agreement, are
sometimes collectively referred to herein as the "Assets".
(d) Notwithstanding subsections (a), (b) and (c) hereof, the
Assets shall not include the following assets of Seller (the "Excluded Assets"):
(1) All cash on hand and in banks, cash
equivalents, and investments;
(2) All accounts receivable and accounts payable
and any other obligations of Seller in connection with the Business, except
those which are expressly transferred or assumed by Buyer pursuant to the
provisions of this Agreement;
(3) Seller's corporate charter, minute and stock
record books, income tax returns, corporate seal, checkbooks and canceled
checks;
(4) Any agreements other than the Assigned
Contracts; and
(5) The Excluded Assets, if any, described on
Exhibit "D", annexed hereto and by this reference made a part hereof.
2. Purchase Price for Assets and Manner of Payment.
(a) In exchange for the Assets, Buyer shall pay to Seller, and
Seller shall accept from Buyer, the total purchase price (the "Purchase Price")
consisting of (i) the sum of $6,700,000.00 (the "Fixed Portion"), plus (ii)
those sums due to Seller pursuant to Section 2(b) hereof. No separate or
additional consideration shall be paid for any individual Asset or category of
Assets. The Fixed Portion shall be payable in the following manner:
(1) At the time and place of Closing and passage
of title to the Assets, the sum of $321,040.93, or such other aggregate total
amount (the "Payoff Amount"), of all principal, interest, charges and other sums
necessary to fully satisfy and discharge of record the First Mortgage (as
hereinafter defined), as evidenced by a written payoff statement from the holder
of the First Mortgage (including per diem amounts) to be obtained and produced
by Seller prior to Closing, by Buyer's paying or causing to be paid the Payoff
Amount to the holder of that certain first mortgage encumbering a portion of the
Premises granted by Seller, as mortgagor, to Lakeside National Bank, predecessor
in interest to First National Bank, as mortgagee, dated July 31, 1990, given to
secure payment of a certain Collateral Mortgage Note, dated of even date
therewith, in the original principal sum of $1,600,000.00, as amended (the
"First Mortgage"), copies of which First Mortgage and all related documents have
been delivered by Seller to Buyer prior to the execution hereof.
(2) The balance of the Fixed Portion, after
deduction of the Payoff Amount,
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September 18, 1995
as follows:
(i) At the time and place of Closing and
passage of title to the Assets, the sum of $204,120.30 (the "Cash Amount"), by
(at Buyer's election) certified or bank cashier's check, or similar check of the
title company conducting Closing, drawn on a member bank of the Federal Reserve
System, or by federal funds wire transfer to such account as Seller shall
designate by written notice to be delivered to Buyer not later than three (3)
business days prior to Closing. Buyer and Seller acknowledge and agree that the
Cash Amount is an amount estimated by Buyer's title agent to be sufficient to
satisfy liens, adjustments and charges, establish a sales tax escrow and to pay
other costs for which Seller may be responsible including those amounts for
which adjustments and apportionment are to be made pursuant to Section 6 hereof.
In lieu of the deduction of the Cash Amount from the Purchase Price otherwise
payable pursuant to the terms of Section 2(a)(2)(ii), below, Seller may deposit
an amount equal to the Cash Amount on account with Buyer's title agent, provided
that (x) such deposit be made by certified or bank cashier's check, drawn on a
member bank of the Federal Reserve System, or by federal funds wire transfer to
such account as Buyer's title agent shall designate, and (y) that such deposit
be made at least one business day prior to the Closing Date. Payment and release
of the Cash Amount to Seller shall be subject to the escrow requirements of
Section 19(m), below.
(ii) On January 15, 1996 (the "Issue
Date") the sum of $6,174,838.80, or such other balance of the Fixed Portion as
shall remain after deducting the Payoff Amount and the Cash Amount, if
appropriate, and any other post-Closing adjustments as may be required
hereunder, by Buyer's causing to be issued to Seller five hundred seven thousand
three hundred eighty two (507,382) shares of the capital stock of Players
International, Inc. ("PII Stock"), at the agreed price of $12.17 per share. The
PII Stock shall be issued and held subject to and in accordance with the
provisions of Section 17, below.
(b) Pursuant to the terms of that certain letter agreement
between Buyer and Seller dated January 25, 1995 (the "Preliminary Agreement")
outlining the general terms of the transactions contemplated by this Agreement,
Buyer and Seller agreed to certain additional consideration for such
transactions. However, the terms of the Preliminary Agreement relating to such
payments were replaced by certain terms of that certain Settlement Agreement by
and among Buyer, Seller, Jebaco, Inc. ("Jebaco") and certain principals of
Seller and Jebaco, entered into as of July 27, 1995 (the "Settlement
Agreement"). Buyer and Seller hereby acknowledge that Buyer's agreement to make
the "Continuing Payments" to Seller under the terms of the Settlement Agreement
was made in recognition of Buyer's agreement under the terms of the Preliminary
Agreement to make certain continuing payments to Seller in consideration of the
transactions contemplated hereby, and as such shall constitute additional
consideration for the transactions contemplated by this Asset Purchase
Agreement.
(c) Seller hereby acknowledges and agrees that Buyer shall
have no responsibility or liability for, under or with respect to any obligation
or liability of Seller other than the First Mortgage, and the Assigned
Contracts, if any. Except for liabilities expressly and specifically assumed
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September 18, 1995
pursuant to the provisions of this Agreement, Seller shall indemnify, defend and
hold harmless Buyer, and Buyer's employees, agents and directors from and
against any and all liability, loss, damage, claim or expense, including
attorneys' fees, arising under, from or in connection with the liabilities and
obligations of Seller.
3. Closing. The closing and consummation of this transaction (the
"Closing") shall, unless extended by Buyer pursuant to Section 4(d) hereof, take
place at the offices of XXXXXXXXX, SIEVERT, VICCELLIO, XXXXXXXX & XXXXXXXX, LLC,
Xxx Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000, on August 18, 1995 (the
"Closing Date"), commencing at 10:00 a.m., or on such other date, time and/or
place as shall be mutually agreed to in writing between Seller and Buyer.
4. Quality of Title.
(a) Title to the Premises shall be good and marketable and
free and clear of all liens, restrictions, easements, encumbrances, leases,
tenancies and other title objections, and shall be insurable as such at ordinary
rates by any reputable title insurance company selected by Buyer. Title to the
Premises may however be subject to those title matters specified in Exhibit "E",
annexed hereto and by this reference made a part hereof. The foregoing permitted
title exceptions are hereinafter referred to as the "Permitted Encumbrances".
Seller shall employ the proceeds of Closing to discharge or satisfy any lien,
claim or encumbrance not constituting a Permitted Encumbrance. If Seller is
unable to convey title to the Premises to Buyer at Closing in accordance with
the requirements of this Agreement, Buyer shall have the option (1) of taking
such title as Seller is able to convey with abatement of price in the amount
(fixed or ascertainable) of any lien on or claim against the Premises, or (2) of
terminating Buyer's obligations under this Agreement and being repaid all monies
paid by Buyer on account of the purchase price, together with the amount of the
charges incurred by Buyer for searching title, the cost of any plans and surveys
made by Buyer, and the amount of all other fees, costs and expenses incurred by
Buyer in connection with the Premises and Buyer's intended acquisition and
development thereof; in either event Buyer shall also have the right to pursue
such other remedies as may be available to Buyer at law or in equity.
(b) Title to the Personalty shall be free and clear of liens
and encumbrances other than Permitted Encumbrances and any Personalty which is
designated on Exhibit "B", hereto as being subject to a lease, lease purchase or
installment purchase contract, conditional sales or similar agreement.
(c) If on the date of Closing the Premises or any portion
shall have been affected by a municipal or other assessment or assessments,
which have been assessed prior to the date of Closing, or of which the first
installment is then a charge or lien, or has been paid, then for all purposes of
this Agreement all unpaid installments of any such assessment, including those
payable after Closing, shall be deemed to be due and payable and shall
constitute liens upon the Premises as of Closing, and Seller shall pay, or
provide for payment of, all such assessments and installments thereof, whether
due and payable prior to or after the date of Closing. Seller shall, if
necessary,
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September 18, 1995
employ the proceeds of Closing to satisfy any such assessment(s).
(d) Notwithstanding the foregoing, Seller acknowledges the
existence of: (i) the possibility that the State of Louisiana may assert a claim
against the Premises, or portions thereof, or adjacent lands used in connection
therewith, based upon the possibility that portions of the Premises or such
adjacent lands may have previously been covered or flowed by navigable waters of
Lake Xxxxxxx (the "Waterfront Strip Claim"); and (ii) certain title defects with
respect to the conveyance of a fifty (50) foot strip of land along the western
boundary of the Premises (the "Conveyance Issues"). Seller acknowledges further
that the Waterfront Strip Claim and the Conveyance Issues do not constitute
Permitted Encumbrances and will, if not fully resolved prior to Closing,
constitute valid objections to title on Buyer's behalf.
(1) Seller acknowledges that Buyer is working to
resolve the Waterfront Strip Claim, but that such efforts by Buyer shall not
waive, limit or impair Buyer's right to enforce its rights and remedies upon any
failure to remove or otherwise resolve such title objections; it being
understood that removal or resolution of the Waterfront Strip Claim is and shall
remain a material obligation of Seller hereunder. If, in order to resolve the
Waterfront Strip Claim, or any portion thereof, Buyer is required to purchase or
lease from the State of Louisiana (or any subdivision, agency or authority
thereof), or otherwise pay for the right to use or occupy, any portion of the
Premises or any land adjacent to the Premises above the mean high water line,
then Buyer shall be entitled to set off the sums required to be so paid against
those payments to Seller under Section 2(b), above. Notwithstanding the
foregoing, Seller's maximum obligation, and Buyer's maximum right of setoff,
with respect to removal or resolution of any part of the Waterfront Strip Claim,
shall be limited to the lesser of those amounts required to be paid to the State
of Louisiana, or such person or entity claiming under the State of Louisiana, in
order to remove or resolve any part of the Waterfront Strip Claim, and the sum
of $1,500,000.00 (if a purchase/lump sum payment) or $75,000.00 per year (if a
lease or other continuing payment obligation).
(2) Seller acknowledges that Buyer is working to
resolve the Conveyance Issues, but that such efforts by Buyer shall not waive,
limit or impair Buyer's right to enforce its rights and remedies upon any
failure to remove or otherwise resolve such title objections; it being
understood that removal or resolution of the Conveyance Issues is and shall
remain a material obligation of Seller hereunder.
(e) Notwithstanding any other provision herein contained, if
at the Closing Date Seller is unable to convey the title to the Assets as
required under this Section 4, then in addition to any of Buyer's other rights
or remedies hereunder, Buyer shall have the right (but not the obligation) to
extend the date for closing for six (6) consecutive 2 month periods of time as
determined by Buyer, in its sole discretion, to permit the removal or resolution
of any remaining objections to title (including, without limitation, the
Waterfront Strip Claim or the Conveyance Issues). This right of extension shall
apply to the original Closing Date, as well as any extended Closing Date
established pursuant to the preceding sentence.
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September 18, 1995
5. Title Conveyance and Possession. Title to the Assets shall be
conveyed from Seller to Buyer at Closing by General Warranty Deed for the
Premises, general warranty xxxx of sale for the Personalty and Inventory of
Supplies and by assignment or xxxx of sale, as appropriate, for such other
Assets as are sold and conveyed by Seller and purchased by Buyer pursuant to the
terms of this Agreement, in each case in proper form for recording, if
appropriate, and duly executed and acknowledged by Seller. If Buyer causes a
survey to be made, the description in such deed shall be based upon the survey.
Actual possession of the Assets shall be delivered to Buyer on the date of
Closing, subject only to the rights of occupancy of transient guests holding
advance reservations and tenants pursuant to written leases disclosed to and
approved by Buyer.
6. Apportionments, Adjustments and Incidental Costs.
(a) At Closing, the following items of income and expense
affecting the Premises and operation of the Assets shall be adjusted and
apportioned pro rata between Buyer and Seller, as of the date of Closing such
that Seller shall be responsible for all such charges allocable to any period
prior to Closing, and Buyer shall be responsible for all such charges allocable
to any period from and after Closing:
(1) All state, parish and local real estate
taxes, personal property taxes, transaction privilege and use taxes, hotel room
or bed taxes, rental taxes or similar taxes, and sewer and water charges, based
on the fiscal year(s) of assessment;
(2) Amounts due and prepaid under the Assigned
Contracts specified in Exhibit "C" hereto;
(3) Seller shall be charged, and Buyer shall
receive a credit, on account of all wages, vacation and holiday pay, payroll
expenses, severance pay, pension and welfare benefits and other hotel employee
benefits accrued and unpaid as of 11:59 p.m., Lake Xxxxxxx time, on the date
preceding the Closing Date. Seller shall be responsible for all pension plan
withdrawal liability occasioned by the sale of the Assets pursuant to this
Agreement;
(4) All current charges for gas, electricity
(as allocated between Seller and Buyer based on a separate meter) and other
public utilities service and telephone charges with respect to Seller's
operation of the Assets, on a per diem basis based upon the current period's
xxxxxxxx therefor.
Buyer, at its election, may cause Seller to terminate as of the date of Closing
Seller's existing accounts for gas, electricity and other public utilities and
telephone service to the Premises. To such extent, Buyer shall establish, on the
date of Closing, accounts in the name of Buyer for such utility and telephone
service. In such case, all utility charges for periods through 11:59 p.m., Lake
Xxxxxxx time, on the date preceding the Closing Date shall be the sole and
exclusive responsibility of Seller.
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September 18, 1995
(b) All receipts from guest room rentals prior to the Closing
Date shall belong to Seller. One half of the guest room rentals, whether in cash
or accounts receivable, arising from occupancy for the entire night beginning on
the day preceding the Closing Date shall be credited to each of Buyer and
Seller. All receipts thereafter (whether for guest room rentals or other goods
or services) shall belong to Buyer. All prepaid rentals, room rental deposits
and all other deposits for advance registration, banquets, or future services
paid to Seller prior to the Closing Date shall be credited to Buyer (the amount
of such charges and deposits shall be determined by reference to the statement
thereof prepared by Seller and provided to Buyer on the date of Closing). Buyer
hereby agrees to indemnify and hold Seller harmless from and against all loss,
cost and expense which may be incurred by Seller as a result of claims made with
respect to the application of such charges and deposits and reservations
represented thereby after the date of Closing. Seller hereby agrees to indemnify
and hold Buyer harmless from and against any loss, cost, liability or expense
incurred by Buyer as a result of any incompleteness or inaccuracy in the
statement of such charges and/or deposits delivered to Buyer.
(c) All xxxxx cash and cash in cash registers as of 11:59
p.m., Lake Xxxxxxx time, on the day preceding the Closing Date shall remain the
property of Seller.
(d) At Closing, Seller shall provide to Buyer a detailed
schedule of any valuables or other property of hotel guests which have been
checked with or left in the care of Seller, including, without limitation, items
placed in any safe or safe deposit box(es) at the Premises, as of the Closing
Date. Buyer shall not be liable or responsible for any such items not specified
on such list, and Seller shall indemnify and hold harmless Buyer from and
against any liability or responsibility in connection with the theft or
mishandling of such items prior to the Closing Date, and in connection with the
theft, mishandling or other disposition of any such items not specified on such
list, at any time.
(e) Buyer shall pay for the preparation of the deed, xxxx of
sale and other documents required to transfer to Buyer title to the Assets, and
Buyer's usual and customary Closing costs and its counsel fees. Seller shall pay
for all reasonable costs associated with the curing of any title deficiency
(except as otherwise provided under Section 4(d) hereof) and Seller's usual and
customary Closing costs and its counsel fees. Seller shall pay for any realty
transfer fee, tax or similar charge.
(f) At the time and place of Closing and passage of title to
the Assets, Seller shall pay the sum of $306,830.27, or such other aggregate
total amount of all principal, interest, charges and other sums necessary to
fully satisfy the outstanding principal balance of that certain note delivered
by Seller to Buyer in connection with the settlement of that certain litigation
by and among Buyer, Seller, Jackpot Novelty, Inc. and certain other parties
regarding the operation of video poker devices at the Premises.
(g) In consideration of Seller's agreement to vacate the
Premises within thirty (30) days after the date of Closing, and in consideration
of Seller's waiver of Buyer's obligations under the Preliminary Agreement to
provide Seller with office space for two (2) years after the date of Closing,
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September 18, 1995
Buyer shall pay to Seller the sum of $26,160.08.
7. Seller's Representations and Warranties. Seller represents
and warrants to Buyer that, except as set forth in the schedule delivered by
Seller to Buyer concurrently herewith and identified as the "Disclosure
Schedule":
(a) Seller is a corporation duly organized, existing and
in good standing, under the laws of the State of Louisiana.
(b) Seller has full corporate power and authority to enter
into and perform (x) this Agreement and (y) all documents and instruments to be
executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary
Documents"). This Agreement has been, and Seller's Ancillary Documents will be,
duly executed and delivered by duly authorized officers of Seller.
(c) No consent, authorization, order or approval of, or filing
or registration with, any governmental authority or other person is required for
the execution and delivery of this Agreement and Seller's Ancillary Documents
and the consummation by Seller of the transaction contemplated by this Agreement
and Seller's Ancillary Documents.
(d) Neither the execution and delivery of this Agreement and
Seller's Ancillary Documents by Seller, nor the consummation by Seller of the
transaction contemplated hereby, will conflict with or result in a breach of any
of the terms, conditions or provisions of Seller's Articles of Incorporation or
By-laws, or of any statute or administrative regulation, or of any order, writ,
injunction, judgment or decree of any court or any governmental authority or of
any arbitration award.
(e) Seller's books, accounts and records pertaining to the
Assets are, and have been, maintained in Seller's usual, regular and ordinary
manner, in accordance with generally accepted accounting practices and all
transactions to which Seller has been a party are properly reflected therein.
(f) Seller has good and marketable title to, and the corporate
power to sell, the Assets, free and clear of any liens, claims, encumbrances and
security interests, except for liens for non-delinquent taxes. Other than the
First Mortgage, no unreleased mortgage, trust deed, chattel mortgage, security
agreement, financing statement or other instrument encumbering any of the Assets
has been recorded, filed, executed or delivered.
(g) None of Seller's officers, directors, employees or
stockholders or members of their families (or any entity in which any of them
has a material financial interest, directly or indirectly), owns any assets
which are used in the Business, except for assets being transferred to Buyer in
accordance with the provisions hereof.
(h) The Disclosure Schedule correctly and completely
lists and describes all material
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September 18, 1995
contracts, leases, and agreements to which Seller is a party and which relate to
the conduct of the Business, including, without limitation: employment and
employment related agreements; covenants not to compete; loan agreements; notes;
security agreements; sales representative, distribution, franchise, advertising
and similar agreements; leases and subleases relating to the Personalty or
Premises; license agreements; purchase orders and purchase contracts and sales
orders and sales contracts. All contracts, leases and other instruments referred
to in this Section 7, and all other contracts or instruments to which Seller is
a party, are in full force and binding upon the parties thereto. No default by
Seller has occurred thereunder and, to the best of Seller's knowledge, no
default by the other contracting parties has occurred thereunder. No event,
occurrence or condition exists which, with the lapse of time, the giving of
notice, or both, or the happening of any further event or condition, would
become a default by Seller thereunder.
(i) Seller is not a party to, or bound by, any unexpired,
undischarged or unsatisfied written or oral contract, agreement, indenture,
mortgage, debenture, note or other instrument under the terms of which Seller
may not terminate such agreement or instrument upon Closing hereunder, or under
which performance by Seller according to the terms of this Agreement will be a
default or an event of acceleration, or whereby timely performance by Seller
according to the terms of this Agreement may be prohibited, prevented or
delayed. Seller will terminate any such agreement or instrument (other that
those expressly assumed by Buyer) simultaneously with Closing.
(j) The Disclosure Schedule contains a true and correct copy
of every license, permit, registration and governmental approval, agreement and
consent applied for, pending by, issued or given to Seller, and every agreement
with governmental authorities (Federal, state, local or foreign) entered into by
Seller, which is in effect or has been applied for or is pending, exclusive of
Environmental Permits (as hereinafter defined) (the "Permits"). Such Permits
constitute all licenses, permits, registrations, approvals and agreements and
consents (other than Environmental Permits) which are required in order for the
Seller to conduct the Business as presently conducted.
(k) Attached hereto as Exhibit "F" and made a part hereof is a
complete list of: (i) each labor or employment agreement to which Seller is a
party or by which it is bound; (ii) each employment profit sharing, stock
option, stock purchase, deferred compensation, bonus, pension, retainer,
consulting, retirement, health, welfare, incentive plan or contract or similar
agreement to which Seller is a party or by which it either is or may be bound;
(iii) each plan and agreement under which "fringe benefits" (including, but not
limited to, vacation plans or programs, sick leave plans or programs, dental or
medical plans or programs and related or similar benefits) are afforded to an
employee of Seller; and (iv) the name, job description, salary and fringe
benefits of each employee, agent, or consultant of Seller. Prior to the date of
this Agreement, Seller has delivered or has caused to be delivered to Buyer
true, complete and accurate copies of all such labor or employment agreements
and plans (the "Labor and Employment Agreements and Plans"). Seller has complied
in all material respects with all applicable laws, rules and regulations
relating to (i) the employment of labor, including, without limitation, those
related to wages, hours, collective bargaining and the payment and withholding
of taxes and other sums as required by appropriate governmental authorities, and
(ii) the
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September 18, 1995
closure of the Business, notice of which was given to all employees on
_____________, 1995, as required by the Federal Worker Adjustment and Retaining
Notification Act ("WARN").
(l) There is no litigation or proceeding, in law or in equity,
and there are no proceedings or governmental investigations before any
commission or other administrative authority, pending, or, to the best of
Seller's knowledge, threatened, against Seller or its affiliates, or with
respect to the consummation of the transaction contemplated hereby, or the use
of the Assets (whether used by Buyer after the Closing or by Seller prior
thereto).
(m) Seller is not a party to, or bound by, any decree, order
or arbitration award (or agreement entered into in any administrative, judicial
or arbitration proceeding with any governmental authority) with respect to its
properties, assets, personnel or business activities.
(n) Seller is not in violation of, or delinquent in respect
to, any decree, order or arbitration award or law, statute, or regulation of or
agreement with, or Permit from, any Federal, state or local governmental
authority (or to which its properties, assets, personnel, business activities or
the Premises are subject or to which it, itself, is subject), including, without
limitation, laws, statutes and regulations relating to equal employment
opportunities, fair employment practices, unfair labor practices, terms of
employment, occupational health and safety, wages and hours and discrimination,
and zoning ordinances and building codes. Copies of all notices of violation of
any of the foregoing which Seller has received within the past three years are
attached to the Disclosure Schedule.
(o) Both Seller and its assets and business (including,
without limitation, the Assets and the Business) are in compliance with all
Environmental Laws (as hereinafter defined) and Environmental Permits (as
hereinafter defined). A copy of any notice, citation, inquiry or complaint which
Seller has received in the past three years of any alleged violation of any
Environmental Law or Environmental Permit is contained in the Disclosure
Schedule. Seller possesses all Environmental Permits which are required for the
operation of the Business, and is in compliance with the provisions of all such
Environmental Permits. Copies of all Environmental Permits issued to Seller are
contained in the Disclosure Schedule. As used in this Agreement, "Environmental
Laws" means all federal, state and local statutes, regulations, ordinances,
rules, regulations and policies, all court orders and decrees and arbitration
awards, and the common law, which pertain to environmental matters or
contamination of any type whatsoever; and "Environmental Permits" means
licenses, permits, registrations, governmental approvals, agreements and
consents which are required under or are issued pursuant to Environmental Laws.
(p) Seller has no agreements, directly or indirectly, with any
present employees, representatives or agents of Seller which would require or
suggest continued employment by or association with Buyer.
(q) To the best of Seller's knowledge, information and
belief, the representations
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September 18, 1995
and warranties of Seller in this Agreement do not omit to state a material fact
necessary in order to make the representations, warranties or statements
contained herein not misleading.
(r) The copies of all documents furnished by Seller to Buyer
pursuant to the terms of this Agreement are complete and accurate. The
Disclosure Schedule contains complete and accurate copies of all documents
referred to therein. The information contained in the Disclosure Schedule is
complete and accurate.
8. Conduct Prior to the Closing. Between the date hereof and the
Closing Date:
(a) Seller shall give to Buyer's officers, employees,
attorneys, consultants, accountants and lenders reasonable access during normal
business hours to all of the properties, books, contracts, documents, records
and personnel of Seller and shall furnish to Buyer such information pertaining
to the Assets as Buyer may at any time and from time to time reasonably request.
(b) Seller shall use its best efforts and make every good
faith attempt (and Buyer shall cooperate with Seller) to obtain all consents
specified by Buyer to the assignment of, or alternate arrangements satisfactory
to Buyer with respect to, any Assigned Contract, Permit or Environmental Permit,
which is to be assigned to Buyer hereunder and which may be required for such
assignment to be effective (the "Consents").
(c) Seller shall carry on the Business in the usual and
ordinary course of business, consistent with past practices and shall use its
best efforts to preserve its business and the goodwill of its customers,
suppliers and others having business relations with Seller and to retain its
business organization intact, and shall maintain all of its properties in good
operating condition and repair, ordinary wear and tear excepted. Notwithstanding
the foregoing, Seller shall take whatever steps are necessary to terminate the
employment of its employees at the Business, such termination to be effective as
of the Closing Date. Seller may continue to employ such of its employees as it
desires to use in any business of Seller, provided that Seller will employ any
such employee at its sole risk and expense.
(d) No party shall intentionally perform any act which, if
performed, or omit to perform any act which, if omitted to be performed, would
prevent or excuse the performance of this Agreement by any party hereto or which
would result in any representation or warranty herein contained of said party
being untrue in any material respect as if originally made on and as of the
Closing Date.
9. Conditions Precedent to Buyer's Obligations. The obligation of Buyer
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 Buyer's option, be
terminated pursuant to and with the effect set forth in Section 10:
12
AC-57140/3
September 18, 1995
(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 was consummated) shall have been performed.
(c) All Consents necessary for Seller's performance
hereunder shall have been obtained by Seller.
(d) No suit, proceeding or investigation shall have been
commenced or threatened by any governmental authority or private person on any
grounds to restrain, enjoin or hinder, or to seek material damages on account
of, the consummation of the transaction contemplated hereby.
10. Effect of Termination/Proceeding
(a) Right to Terminate. This Agreement and the transaction
contemplated hereby may be terminated at any time prior to the Closing by prompt
notice given in accordance with Section 19(a):
(1) by the mutual written consent of Buyer and
Seller; or
(2) by either of such parties if the Closing
shall not have occurred at or before 5:00 p.m., Lake Xxxxxxx time, on the
Closing Date, as the same may have been extended by Buyer pursuant to Section
4(d) hereof or by mutual agreement of the parties; provided, however, that the
right to terminate this Agreement under this Section 10 shall not be available
to any party whose failure to fulfill any material obligation under this
Agreement has been the cause of or resulted in the failure of the Closing to
occur on or prior to the aforesaid date.
(b) Remedies. In the event of a breach of this Agreement, the
non-breaching party shall not be limited to the remedy of termination of this
Agreement, but shall be entitled to pursue all available legal and equitable
rights and remedies, and shall be entitled to recover all of its reasonable
costs and expenses incurred in pursuing them (including, without limitation,
reasonable attorneys' fees).
(c) Injunctive Relief. Seller specifically recognizes that any
breach of the provisions of this Agreement will cause irreparable injury to
Buyer and that actual damages may be difficult to ascertain, and in any event,
may be inadequate. Accordingly (and without limiting the availability of legal
or equitable, including injunctive, remedies under any other provisions of this
Agreement), Seller agrees that in the event of any such breach, Buyer shall be
entitled to equitable
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September 18, 1995
relief, including the specific performance of Seller's obligations hereunder,
and such other legal and equitable remedies that may be available.
11. Authority of the Parties. Each of Buyer and Seller represents and
warrants to the other that it is a corporation duly organized and validly
existing under and by virtue of the laws of the State of Louisiana and has full
power and authority to enter into and consummate this Agreement in accordance
with the terms and conditions herein contained, and that there are no
agreements, commitments or contracts, whether oral or written, to which it is a
party, or by which any of its properties and assets are bound, which would
prevent it from performing this Agreement in accordance with the terms and
conditions herein contained.
12. Fire, Other Casualty. All of Seller's fire insurance in force at
the date of this Agreement shall be maintained at the expense of Seller until
Closing. As of the date hereof, Seller's fire insurance policy shall be endorsed
by the insurance company for the benefit of both Seller and Buyer as their
respective interests may appear. Seller agrees that the proceeds of any such
insurance shall be paid or credited to Buyer at Closing and all unpaid claims
and rights in connection with losses will be assigned to Buyer at Closing.
Notwithstanding anything to the contrary contained herein, if any buildings,
improvements and fixtures on the Premises are not in the same condition at the
time of Closing as they are at the date of this Agreement, ordinary wear and
tear expected, Buyer shall have the right, at Buyer's option, to terminate this
Agreement.
13. Condemnation. In the event of the taking of all or any part of the
Premises by eminent domain proceedings or the commencement of any such
proceedings, Buyer shall have the right, at Buyer's option, to terminate this
Agreement by giving written notice to Seller on or before the date fixed for
Closing hereunder. If Buyer does not so terminate this Agreement, the purchase
price for the Premises shall be reduced by the total of any awards or other
process received by Seller with respect to any taking, and at Closing Seller
shall assign to Buyer all rights of Seller in and to any awards or other
proceeds payable by reason of any taking. Seller agrees to notify Buyer of
eminent domain proceedings immediately after Seller learns of any such
proceedings. Buyer shall have the sole right (in the name of Buyer or Seller or
both) to negotiate for, to agree to and to contest all offers and awards.
14. Deliveries.
(a) At Closing Seller shall deliver, or cause to be
delivered, to Buyer the following:
(1) The deed conveying title to the Premises;
(2) The xxxx of sale to the Personalty and
Inventory of Supplies, in the form of Exhibit "G" hereto;
(3) An assignment, in the form of Exhibit "H"
hereto, of prepaid room
14
AC-57140/3
September 18, 1995
charges and advance deposits held by Seller;
(4) An assignment, in the form of Exhibit "H"
hereto, of all Permits, and of any Assigned Contracts specified in Exhibit "C",
hereto, and renewals thereof;
(5) An assignment, in the form of Exhibit "H"
hereto, of any rights of Seller to the Trade Name;
(6) Resolutions of Seller's Board of Directors,
or certificates of Seller's secretary attesting to the adoption of such
resolutions, evidencing the authority of Seller to consummate this transaction
upon the terms and conditions contained in this Agreement;
(7) The Registration Rights Agreement more
particularly described under Section 17, below;
(8) The Termination and Release more particularly
described under Section 18, below; and
(9) Such other documents and instruments as shall
be reasonably required in order for Seller to consummate this transaction in
accordance with the terms and conditions of this Agreement.
(b) At Closing, Buyer shall deliver, or cause to be
delivered, to Seller, the following:
(1) The Cash Amount, in immediately available
funds, as adjusted in accordance with the provisions of this Agreement;
(2) The Agreement of Players International, Inc. to
issue its common stock representing the balance of the Purchase Price as
provided pursuant to Section 2(a)(2), above;
(3) Resolutions of Buyer's Board of Directors, or
certificates of Buyer's secretary attesting to the adoption of such resolutions,
evidencing the authority of Buyer to consummate this transaction upon the terms
and conditions contained in this Agreement;
(4) The Registration Rights Agreement more
particularly described under Section 17, below;
(5) The Termination and Release more particularly
described under Section 18, below; and
(6) Such other documents and instruments as shall
be reasonably required
15
AC-57140/3
September 18, 1995
for Buyer to consummate Closing in accordance with the intents expressed herein.
15. Post-Closing Agreements.
(a) Post-Closing Agreements. From and after the Closing,
the parties shall have the respective rights and obligations which are set forth
in the remainder of this Section 15.
(b) Certain Assignments. Any other provision of this Agreement
to the contrary notwithstanding, this Agreement shall not constitute an
agreement to transfer or assign, or a transfer or assignment of, any claim,
contract, lease, Permit, Environmental Permit, commitment, sales order or
purchase order, or any benefit arising thereunder or resulting therefrom, if an
attempt at transfer or assignment thereof without the consent required or
necessary for such assignment, would constitute a breach thereof or in any way
adversely affect the rights of Buyer or Seller thereunder. If such a consent or
agreement to transfer or assign is not obtained for any reason, Buyer and Seller
shall cooperate in any arrangement Buyer may reasonably request to provide for
Buyer the benefits under such claim, contract, lease, Permit, Environmental
Permit, commitment or order.
(c) Use of Trademarks; References to Seller. Seller shall
cease to use and shall not permit any third party to use the name "Players
Lakefront Hotel", or any version of the "Players" name, or any other name,
slogan, logo or trademark which is similar to any of the foregoing.
(d) Employees. Buyer shall not be obligated to offer
employment to any employee of Seller, but Buyer shall have the right to employ
employees of Seller as of the Closing Date, on terms and conditions established
by Buyer in its sole discretion.
(e) Back-Up. Seller shall, at Buyer's request, furnish such
detailed back-up material with respect to the Assets, the past financial
statements of Seller (to the extent that such statements pertain to the Assets)
and the Assumed Contracts as are in Seller's possession or are reasonably
available to Seller.
(f) Sales and Transfer Taxes and Fees. At Closing, Seller
shall pay in escrow to the authorized agent of the title insurance company
chosen by Buyer, from the Cash Amount, all sales taxes and/or use taxes,
recording fees, personal property title application fees, real property transfer
taxes and fees and all other taxes and fees on transfer of the Assets arising by
virtue of the sale of the Assets to Buyer, regardless of whether the liability
for said taxes or fees is imposed by law upon Seller or upon Buyer.
(g) Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to transfer and
convey the Assets to Buyer, on the terms herein contained, and to otherwise
comply with the terms of this Agreement and consummate the transaction
contemplated hereby. This provision shall survive Closing hereunder.
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September 18, 1995
16. Indemnification.
(a) General. From and after the Closing, the parties shall
indemnify each other as provided in this Section 16. For the purposes of this
Section 16, each party shall be deemed to have remade all of its representations
and warranties contained in this Agreement at the Closing with the same effect
as if originally made at the Closing. As used in this Agreement, the term
"Damages" shall mean all liabilities, demands, claims, actions or causes of
action, regulatory, legislative or judicial proceedings or investigations,
assessments, levies, losses, fines, penalties, damages, costs and expenses,
including, without limitation, reasonable attorneys', accountants',
investigators', and experts' fees and expenses, sustained or incurred in
connection with the defense or investigation of any such claim.
(b) Indemnification Obligations of Seller. Seller shall
defend, indemnify, save and keep harmless Buyer and its successors and permitted
assigns against and from all Damages sustained or incurred by any of them
resulting from or arising out of or by virtue of:
(1) any inaccuracy in or breach of any
representation and warranty made by Seller in this Agreement or in any closing
document delivered to Buyer in connection with this Agreement;
(2) any breach by Seller of, or failure by Seller
to comply with, any of its covenants or obligations under this Agreement
(including, without limitation, its obligations under this Section 16);
(3) the failure to discharge when due any
liability or obligation of Seller other than the First Mortgage or the Assigned
Contracts, or any claim against Buyer with respect to any such liability or
obligation or alleged liability or obligation;
(4) any claims by parties other than Buyer to the
extent caused by acts or omissions of Seller on or prior to the Closing Date,
including, without limitation, claims for Damages which arise or arose out of
Seller's operation of the Business or by virtue of Seller's ownership of the
Assets on or prior to the Closing Date; or
(5) any debts, liabilities, penalties, fines,
sanctions, assessments and obligations arising under the Labor and Employment
Agreements and Plans (defined in subsection 7(k)), under WARN (defined in
subsection 7(k)) and other similar laws.
(c) Buyer's Indemnification Covenants. Buyer shall
defend, indemnify, save and keep harmless Seller and its successors and
permitted assigns against and from all Damages sustained or incurred by any of
them resulting from or arising out of or by virtue of:
(1) any inaccuracy in or breach of any
representation and warranty made
17
AC-57140/3
September 18, 1995
by Buyer in this Agreement or in any closing document delivered to Seller in
connection with this Agreement;
(2) any breach by Buyer of, or failure by Buyer
to comply with, any of its covenants or obligations under this Agreement
(including, without limitation, its obligations under this Section 16);
(3) any claims by parties other than Seller to
the extent caused by the acts or omissions of Buyer after the Closing Date and
not constituting an Excluded Liability, including, without limitation, claims
for Damages which arise out of Buyer's operation of the Assets after the Closing
Date.
17. Provisions Governing PII Stock.
(a) Restrictions; Registration. Seller acknowledges and agrees
that the PII Stock issued as part of the Purchase Price under Section 2 hereof
will not be registered under federal securities laws, nor any rules or
regulations of the United States Securities and Exchange Commission.
Accordingly, transfer or other disposition of the PII Stock is restricted under
applicable securities laws, rules and regulations. At Closing, Players
International, Inc. shall enter into a Registration Rights Agreement with
Seller, in the form annexed hereto as Exhibit "I", and by this reference made a
part hereof, pursuant to which Seller shall be granted "piggyback" registration
rights only, subject to certain conditions therein contained.
(b) Put Option.
(1) From the Issue Date through the third
anniversary of the Issue Date, Seller shall have the right and option,
exercisable upon written notice to Buyer ("Put Notice"), to require Players
International, Inc. ("PII") to purchase all, or a minimum of ten percent (10%),
of the PII Stock issued or required to be issued to Seller under Section 2
hereof, for a purchase price, payable by Buyer's check in full at the closing of
such purchase, equal to the value assigned to such PII Stock under Section
2(a)(2)(ii) hereof (such rights referred to as the "Put Rights"). The closing of
any such transaction shall be held at the principal headquarters of Buyer,
within ninety (90) days after Buyer's receipt of the Put Notice. Seller
acknowledges and agrees that PII may designate a nominee or assignee to acquire
Seller's PII Stock.
(2) Seller shall not transfer, convey, pledge or
assign the Put Rights, nor any portion thereof or rights therein, under any
circumstances except as provided for in this Subsection 17(b)(2). At such time
as Seller and Buyer negotiated for the creation of the Put Rights, Seller acted
by and through its shareholders Xxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx and Xxxxxxx
Xxxxxxx (the "Shareholders"). In contemplation of the potential liquidation of
Seller, Buyer agrees that upon delivery of prior written notice to Seller, Buyer
may transfer, convey, pledge or assign its Put Rights to Xxxxxxx Xxxxxxxx,
Xxxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx. Any purported disposition of the
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AC-57140/3
September 18, 1995
Put Rights other than in accordance with the foregoing shall be void and of no
effect.
(c) Regulatory Matters.
(1) Buyer is licensed by and/or otherwise
subject to the authority of gaming authorities in various jurisdictions. This
Agreement may be terminated by Buyer without liability on its part if any such
gaming authority requires or recommends the Agreement to be terminated or if the
continuance of this Agreement in the reasonable belief of Buyer will have
detrimental impact on the ability of Buyer to obtain or maintain its licensure
in any jurisdiction.
(2) Buyer is a subsidiary of Players
International, Inc. ("PII"). PII has adopted a Regulatory Compliance Policy
which is applicable to Buyer, a copy of which has previously been delivered to
Seller. Seller agrees to provide for Buyer such documentation, information, and
assurances regarding itself, and its directors, officers, principal
shareholders, and principal employees, as may be reasonably necessary in order
for Buyer to comply with PII's Regulatory Compliance Policy. Buyer may terminate
this Agreement without liability on its part if Seller fails to comply with this
paragraph or if the continuation of this Agreement in the reasonable belief of
Buyer will have a detrimental impact on any governmental approval or licenses
held by Buyer or its affiliates.
18. Provisions Re: Lease.
(a) As of the date of this Agreement, the Premises is subject
to the Lease as modified by the Closing Agreement. Seller and Buyer hereby
specifically agree that the Lease shall terminate and be of no further force or
effect from and after the completion of Closing hereunder; provided, however,
that all agreements of indemnity between Seller and Buyer, as Landlord and
Tenant under the Lease, shall continue in full force and effect as if the Lease
had not been terminated.
(b) Release and Termination. Buyer and Seller agree to execute
and deliver at Closing a Termination and Release with respect to the Lease, in
the form annexed hereto as Exhibit "J", and by this reference made a part
hereof.
19. Miscellaneous.
(a) Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by facsimile, by
nationally recognized overnight courier, or by United States mail. Notices
delivered by mail shall be deemed given three (3) business days after being
deposited in the United States mail, postage prepaid, registered or certified
mail. Notices delivered by hand by facsimile, or by nationally recognized
private carrier shall be deemed given on the first business day following
receipt; provided, however, that a notice delivered by facsimile shall only be
effective if such notice is also delivered by hand, or deposited in the United
States mail, postage prepaid, registered or certified mail, on or before two (2)
business days after its delivery by facsimile.
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AC-57140/3
September 18, 1995
All notices shall be addressed as follows:
If to Seller, addressed to:
The Xxxxxx Corporation
X.X. Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxxx, Esquire
000 Xxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telecopier: (000) 000-0000
If to Buyer, addressed to:
Players Lake Xxxxxxx, Inc.
000 Xxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
and a copy to:
Horn, Goldberg, Gorny, Daniels, Plackter & Xxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, Xx., Esquire
Telecopier: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in
20
AC-57140/3
September 18, 1995
accordance with the provisions of this Section 19(a). Counsel for either party
may give notice hereunder on behalf of such party.
(b) Entire Agreement. This Agreement and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute the entire
agreement between the parties. Upon the execution of this Agreement, the
Preliminary Agreement, and the rights and obligations created thereby, shall be
null and void. Each exhibit, and the Disclosure Schedule, shall be considered
incorporated into this Agreement. Any amendments, or alternative or
supplementary provisions to this Agreement, must be made in writing and duly
executed by an authorized representative or agent of each of the parties hereto.
This Agreement is entered into after full investigation, neither party relying
upon any statement or representation not embodied in this Agreement.
(c) Survival; Non-Waiver. All representations and warranties
shall survive the Closing regardless of any investigation or lack of
investigation by any of the parties hereto. The failure in any one or more
instances of a party to insist upon performance of any of the terms, covenants
or conditions of this Agreement, to exercise any right or privilege in this
Agreement conferred, or the waiver by said party of any breach of any of the
terms, covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, right or privileges,
but the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred. No waiver shall be effective unless it is in
writing and signed by an authorized representative of the waiving party.
(d) Applicable Law. It is agreed by and between the
parties hereto that this Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana.
(e) Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto, and their respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(f) Assignability. Buyer's interest hereunder shall be
assignable, and Seller agrees to convey the Assets to any assignee or nominee of
Buyer.
(g) Headings. The headings contained herein are not part of
this Agreement. They are only for convenience of the parties and do not in any
way modify, amplify or give full notice of any of the terms, covenants or
conditions of this Agreement.
(h) Time of the Essence. The date and time of Closing, and all
other dates and times specified herein for performance by the parties are and
shall be of the essence of this Agreement.
(i) Number and Gender. For the purposes of this
Agreement, the neuter shall be
21
AC-57140/3
September 18, 1995
deemed to include the masculine and the feminine, and the singular shall be
deemed to include the plural, and the plural the singular, as the context may
require.
(j) Counterparts. This Agreement may be executed
simultaneously in two (2) or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(k) Brokerage. Seller agrees to indemnify Buyer and hold Buyer
harmless from and against the claims of any and all brokers and other
intermediaries employed by Seller in connection with the sale of the Premises
and/or the other Assets. Buyer agrees to indemnify Seller and hold Seller
harmless from and against the claims of any and all brokers and other
intermediaries employed by Buyer in connection with the sale of the Premises
and/or the other Assets.
(l) Arbitration. Any and all disputes or disagreements
hereunder shall be resolved by arbitration before a single arbitrator, acting
under and pursuant to the commercial arbitration rules of the American
Arbitration Association, venued in Calcasieu Parish, Louisiana. The decision of
such arbitrator may be enforced by any court of competent jurisdiction.
(m) Escrow for Louisiana Bulk Sales and Sales Tax
requirements. Seller agrees that at the time and place of Closing, Seller shall
place in escrow with the authorized agent of Buyer's chosen title insurance
company part of the Cash Amount in the sum of $17,203.35 which Seller represents
and warrants is sufficient to satisfy and protect Buyer and the Assets from
claims of Seller's creditors and/or the State of Louisiana, relating to Seller's
accounts payable and liability for sales tax. Upon Seller's presentation to
Buyer of (1) a receipt from the Secretary of the Louisiana Department of Revenue
showing all sales and use taxes, penalties and interest paid, or a certificate
stating that no such sums are due; and (2) other proof that Seller's trade and
other creditors have been paid in full, the aforesaid escrow may be released to
Seller. Until and unless such proof is given, such amount shall remain in
escrow, and if such proof is not made by Seller within thirty (30) days after
Closing, Buyer may use such amounts to pay and satisfy the tax, trade and other
liabilities of Seller. If the escrow amount is insufficient to satisfy any of
Seller's liabilities as aforesaid, Buyer shall be permitted to setoff such
deficiency against any of Buyer's continuing payments to Seller as contemplated
under Section 2(b) hereof.
20. Survival of Closing. Notwithstanding any presumption to the
contrary, all covenants, conditions and representations contained in this
Agreement, which, by their nature, impliedly or expressly, involve performance,
in any particular, after Closing, or which cannot be ascertained to have been
fully performed until after Closing, shall survive Closing. This provision shall
be effective as to all such covenants, conditions and representations,
notwithstanding that as to some of them, it may be expressly stated that they
survive.
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AC-57140/3
September 18, 1995
THUS DONE AND SIGNED in the presence of the undersigned attesting
witnesses and me, Notary Public at _____________________________ on this ____
day of August, 1995.
THE XXXXXX CORPORATION, a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
------------------
---------------------------
NOTARY PUBLIC
THUS DONE AND SIGNED in the presence of the undersigned attesting
witnesses and me, Notary Public at Las Vegas, Nevada on this ____ day of August,
1995.
PLAYERS LAKE XXXXXXX, INC., a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Xxxxx Xxxxxxx, President
------------------
---------------------------
NOTARY PUBLIC
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AC-57140/3
September 18, 1995
JOINDER
Players International, Inc. hereby joins in the execution of this Agreement
for the sole purpose of evidencing its agreement under Section 17(a) and (b)
hereof. Players International, Inc. does not, by its execution hereof, agree to
be bound by or serve as guarantor or endorser of any obligations of Buyer under
the above Agreement.
PLAYERS INTERNATIONAL, INC., a Nevada corporation
ATTEST:
__________________ BY:___________________________
Name: Name:
Title: Title:
24
AC-57140/3
September 18, 1995
LIST OF EXHIBITS
"A" Legal Description
"B" Personalty
"C" Assigned Contracts
"D" Excluded Assets
"E" Title Matters
"F" Labor and Employment Agreements and Plans
"G" Xxxx of Sale
"H" Assignment
"I" Registration Rights Agreement
"J" Termination and Release with respect to the Lease
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EXHIBIT "A"
The Property shall include all of the following three tracts of land described
as follows:
TRACT #1:
Commencing at the Northwest Corner of a tract of land on Lake Xxxxxxx being
the Northwest Corner of property acquired by Xxx Xxxxxxx by deed recorded in
Book 1068 at Page 49 of the Conveyance Records of Calcasieu Parish, Louisiana,
said point of commencement being on the South right of way line of Highway I-10
and located 925.7 feet West and 726.62 feet South of the Northeast Corner of
South Half of Northwest Quarter (S/2 of NW/4) of Section 31, Township 9 South,
Range 8 West, Louisiana Meridian, thence South 6 degrees 01 minutes West a
distance of 150 feet, being on the same line as established by boundary
agreement bearing File No. 503042 of the records of Calcasieu Parish, Louisiana,
thence South 80 degrees 35 minutes East a distance of 100 feet, thence North 6
degrees 01 minutes East a distance of 150 feet, thence North 80 degrees 35
minutes West a distance of 100 feet to point of commencement, together with the
limited right to non-exclusively use a non-exclusive easement 50 feet in width
along the entire East and South boundary lines of said tract, all as reflected
in that certain deed from Xxx X. Xxxxxxx to Cities Service Oil Company recorded
bearing File Number 1163749; together with all rights of ways, privileges and
servitudes thereunder belonging or in any manner appertaining, together will all
buildings and improvements thereon and all fixtures, accessories or other
equipment, including all heating, cooling, laundry, cooking, refrigeration,
ventilating, air conditioning, washing, drying or storage units, equipment or
systems located on, in or attached thereto or dedicated to the use of said
property and which are hereby declared to be immovable by Xxxxxx (all herein
called the "Property").
TRACT #2
A certain tract of land, together with all the appurtenances and
improvements thereon, situated in the Southeast Quarter of the Northwest Quarter
(SE/4 of NW/4) of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxxxx of
Calcasieu, State of Louisiana, which is described as follows: For the point of
commencement being 110 feet xxx Xxxx of the Southwest Corner of Block 30 of the
Xxxxxx Xxxxx and Xxx Xxxxxxxx Subdivision in the City of Lake Charles,
Louisiana, and from that point North 57 degrees 50 minutes West 830.5 feet, and
thence North 80 degrees 35 minutes West 200 feet; from the said point of
commencement run North 6 degrees 01 minutes East 337 feet to the right of way of
public highway; thence North 80 degrees 35 minutes West 400 feet along the
Southerly side of the public highway right of way to the most Westerly Corner of
the property acquired by the Department of Highways from Xxxx X. Bel, et al, on
March
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September 18, 1995
17, 1950; thence South 6 degrees 01 minutes West 337 feet to the bed of Lake
Xxxxxxx and the common boundary with the State of Louisiana; thence South 80
degrees 35 minutes East 400 feet along the boundary with the State of Louisiana
as fixed by an agreement filed in the Calcasieu Parish Conveyance Records July
26, 1951; bearing File No. 503042 to the said point of commencement; together
with all riparian or other rights appertaining thereto; the aforesaid property
conveyed hereunder being the Westerly 400 feet of the land designated "property
of Xxxx Xxxxxx Bel, et al" on the plat attached to the aforesaid boundary
agreement bearing File No. 503042;
LESS AND EXCEPT:
Commencing at the Northwest Corner of a tract of land on Lake
Xxxxxxx being the Northwest Corner of property acquired by Xxx Xxxxxxx by deed
recorded in Book 1068 at Page 49 of the conveyance Records of Calcasieu Parish,
Louisiana, said point of commencement being on the South right of way line of
Highway I-10 and located 925.7 feet West and 726.62 feet South of the Northeast
Corner of South Half of Northwest Quarter (S/2 of NW/4) of Section 31, Township
9 South, Range 8 West, Louisiana Meridian, thence South 6 degrees 01 minutes
West a distance of 150 feet, being on the same line as established by boundary
agreement bearing File No. 503042 of the records of Calcasieu Parish, Louisiana,
thence South 80 degrees 35 minutes East a distance of 100 feet, thence North 6
degrees 01 minutes East a distance of 150 feet, thence North 80 degrees 35
minutes West a distance of 100 feet to point of commencement, together with the
limited right to non-exclusively use a non-exclusive easement 50 feet in width
along the entire East and South boundary lines of said tract, all as reflected
in that certain deed from Xxx X. Xxxxxxx to Cities Service Oil Company recorded
bearing File No. 1163749;
All as shown on the plat of survey prepared by Xxxxxx X. Xxxx,
Xx., dated June 8, 1982, which is recorded in Mortgage Book 1137, Page 154, of
the records of Calcasieu Parish, Louisiana, together with all rights of ways,
privileges and servitudes thereunto belonging or in any manner appertaining,
together will all buildings and improvements thereon and all fixtures,
accessories or other equipment, including all heating, cooling, laundry,
cooking, refrigeration, ventilating, air conditioning, washing, drying or
storage units, equipment or systems located on, in or attached thereto or
dedicated to the use of said property and which are hereby declared to be
immovable by Xxxxxx (all herein called the "Property").
TRACT #3
A certain tract or parcel of land situated in the Xxxxxxxxx
Xxxxxxx xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 8 West, Southwestern Land
District of Louisiana, and being
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more particularly described as follows:
A certain 50 foot strip of right of way beginning at a point
which lies 12.00 feet South of the southerly right xx xxx xxxx xx XX Xxxxxxx 00;
thence proceed South 6 degrees 01 minutes West a distance of 325.00 feet to a
point on the lake front of Lake Xxxxxxx; thence proceed in an easterly direction
to a line parallel and 50.00 feet from the westerly boundary line of said 50.00
foot strip; thence proceed North 6 degrees 01 minutes East a distance of 325.00
feet to a point 12.00 feet from the southerly right xx xxx xxxx xx XX Xxxxxxx
00; thence proceed in a westerly direction to the point of beginning; said strip
containing approximately 16,250.0 square feet, as shown on plat attached hereto
and made a part hereof, together with all improvements, servitudes, and
rights-of-way in any wise belonging or appertaining thereto.
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EXHIBIT "B"
PERSONALTY
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EXHIBIT "C"
ASSIGNED CONTRACTS
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EXHIBIT "D"
EXCLUDED ASSETS
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EXHIBIT "E"
TITLE MATTERS
Title to the Premises shall be subject to the following Permitted Encumbrances:
1. The following easements to Gulf States Utilities Company:
(a) from Xxx X. Xxxxxxx dated 10/27/69 recorded in C.B. 1098, Page 500.
(b) from The Xxxxxx Corporation filed 11/19/93 recorded in C.B. 2398, Page
796. - Page 290
(c) from The Xxxxxx Corporation filed 11/19/93 recorded in C.B. 2398, Page
801.
2. Restrictions as follows:
(a) A building restriction line as established by Xxxxxxxxxxx Xxx 0000,
Article 14, Section 44 of the Louisiana Constitution which prevents erection of
any buildings, shelters or other structures within a distance of 200' from the
surveyed centerline of U.S. Highway 90 (Interstate 10).
(b) The restrictions contained in the deed from the State of Louisiana as
set forth in the Deed recorded in C.B. 2387, Page 575 as follows:
The parties hereto specifically agree that, no junk yards, as defined in
Title 23 U.S.C., Section 136, and in Title 48, Section 461.1 of the Louisiana
Revised Statutes, shall hereinafter be established or maintained on the land
conveyed and no signs, billboards, outdoor advertising structures or
advertisement of any kind, as provided for in Title 23. U.S.C., Section 131, and
as provided for in Title 48, Section 461 et seq. of the Louisiana Revised
Statutes, shall be hereinafter erected, displayed, placed or maintained upon or
within the above described land, except that signs may be erected and maintained
to advertise the sale, hire or lease of the property, or the principal
activities conducted upon the land upon which the signs are located.
3. A reservation in the favor of the State of Louisiana as contained in the
Deed in C.B. 2387, Page 575 which provides for the exclusion from the Premises
as Tract #3 of any and all right, title and interest of the State of Louisiana
in, on or under any highway, road, street, alley, railroad or other right of way
upon which the Premises fronts and by which it is bounded.
4. A mineral reservation to the State of Louisiana, if any, under Tract #3
or in favor of the Vendors, Piney Xxxxx Corporation, et al. in the Deed recorded
in C.B. 2387, Page 580 in which the said Vendors reserved to themselves, their
heirs, successors and assigns, any and all
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rights, if any, which the Vendors may have in any oil, gas or other minerals in,
on or under the property conveyed.
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EXHIBIT "F"
LABOR AND EMPLOYMENT AGREEMENTS AND PLANS
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EXHIBIT "G"
GENERAL WARRANTY XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that THE XXXXXX CORPORATION, a Louisiana
corporation having an address at 000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx
00000 ("Seller") , for and in consideration of the sum of $6,700,000 to it in
hand paid or to be paid in accordance with the terms of a certain Asset Purchase
Agreement dated of even date herewith (the "Agreement") by PLAYERS LAKE XXXXXXX,
INC., a Louisiana corporation having an address at 000 Xxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxxxxxxxx 00000 ("Buyer"), the receipt and sufficiency of which is
hereby acknowledged, Has and does by these presents sell, grant, bargain, assign
and deliver unto Buyer the following:
(1) All items of furniture, furnishings, fixtures, equipment, machinery,
parts, tools, vehicles and all other tangible personal property owned by Seller
and located in or about and employed in the operation of the Premises (as
defined in the Agreement), a current inventory of which is annexed hereto and by
this reference made a part hereof (the "Personalty").
(2) All of Seller's "Inventory of Supplies", which term shall include such
paper goods, maintenance and cleaning supplies, towels and linens and similar
disposable and expendable supplies employed by Seller in connection with the
operation of the Business (as defined in the Agreement) existing on the date
hereof, including, without limitation, the items listed on the statement of
Inventory of Supplies attached hereto and by this reference made a part hereof.
(3) All personal property attached to or used in connection with the
operation of the Premises, including without limitation items which could be
deemed fixtures thereto.
(4) All of Seller's claims and rights (and benefits arising therefrom) with
or against all persons whomsoever, including, without limitation, all rights
against suppliers under warranties covering any of the Personalty or Inventory
of Supplies or any other assets described herein.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns,
forever.
AND SELLER, for itself and its affiliates, successors and assigns, and for
the heirs and personal representative of any of the foregoing, does hereby
covenant and agree that it will forever warrant and defend (with full
subrogation to all rights and actions of warranty against all prior owners and
vendors) the foregoing properties and assets unto Buyer, its affiliates,
successors and assigns, and the heirs and personal representative of any of the
foregoing, against the claims and demands of all persons whomsoever.
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THUS DONE AND SIGNED in the presence of the undersigned attesting witnesses
and me, Notary Public at _____________________________ on this ____ day of
_______ 1995.
THE XXXXXX CORPORATION, a Louisiana
corporation
WITNESSES:
__________________ BY:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
------------------
---------------------------
NOTARY PUBLIC
THUS DONE AND SIGNED in the presence of the undersigned
attesting witnesses and me, Notary Public at _____________________________ on
this ____ day of _______ 1995.
PLAYERS LAKE XXXXXXX, INC., a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Xxxxx Xxxxxxx, President
------------------
---------------------------
NOTARY PUBLIC
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EXHIBIT "H"
GENERAL WARRANTY ASSIGNMENT
THIS ASSIGNMENT, made this ____ day of _______ 1995, by THE XXXXXX
CORPORATION, a Louisiana corporation ("Assignor"), to PLAYERS LAKE XXXXXXX,
INC., a Louisiana corporation, its assignee or nominee ("Assignee"), for and in
consideration of the sum of $6,700,000.00 to Assignor in hand paid or to be paid
by Assignee to Assignor in accordance with the terms of that certain Asset
Purchase Agreement between Assignor and Assignee of even date herewith (the
"Definitive Agreement"; any capitalized terms not specifically defined herein
shall have the meanings given under the Definitive Agreement), the receipt and
sufficiency of which is hereby acknowledged.
1. Assignment. Assignor does hereby grant, sell, assign, convey, transfer,
set over and deliver to Assignee, all of Assignor's right, title and interest
in, to and under the following:
(a) Any and all prepaid room charges and advance deposits held by Assignor,
a schedule of such prepaid room charges and advance deposits listed on Exhibit
"A" annexed hereto and by this reference made a part hereof;
(b) Any and all licenses, permits, registrations and governmental
approvals, agreements and consents applied for, pending by, issued or given to
Assignor, and every agreement with governmental authorities (Federal, state,
local or foreign) entered into by Assignor, which is in effect or has been
applied for or is pending, including all licenses, permits, registrations,
governmental approvals, agreements and consents which are required under or are
issued pursuant to any applicable federal, state and local environmental
statutes, regulations, ordinances, rules, regulations and policies, all court
orders and decrees and arbitration awards, and the common law, which pertain to
environmental matters or contamination of any type whatsoever;
(c) any and all contracts, license agreements, distribution agreements,
sales representative agreements, service agreements, supply agreements,
franchise agreements, computer software agreements and technical service
agreements listed on Exhibit "B" annexed hereto and by this reference made a
part hereof;
(d) any and all of Seller's right, title and interest in, to and under that
certain Lease dated May 18 and 19, 1993 between Seller, as landlord, and Buyer,
as tenant, relating to portions of the Premises, as supplemented and/or amended;
(e) any and all computer software, including all documentation and source
codes with respect to such software and licenses and leases of software, all
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September 18, 1995
marketing and promotional materials, catalogues and advertising literature, and
all telephone numbers of Seller;
(f) any and all customer lists, customer records and information, and all
books and records;
(g) any and all rights of Assignor, if any, in and to the name "Players
Lakefront Hotel";
(h) any and all of Assignor's claims and rights (and benefits arising
therefrom) with or against all persons whomsoever, including, without
limitation, all rights against suppliers under warranties covering any of the
Personalty or Inventory of Supplies or any other Assets; and
(i) any other intangible rights, assets or properties of Seller sold by
Seller to Buyer pursuant to the provisions of the Definitive Agreement.
TO HAVE AND TO HOLD unto Assignee, its successors and assigns, forever.
2. Warranty. Assignor, for itself and its affiliates, successors and
assigns, and for the heirs and personal representative of any of the foregoing,
does hereby covenant and agree that it will forever warrant and defend (with
full subrogation to all rights and actions of warranty against all prior owners
and vendors) the foregoing properties and assets unto Assignee, its affiliates,
successors and assigns, and the heirs and personal representative of any of the
foregoing, against the claims and demands of all persons whomsoever.
3. Incorporation of Definitive Agreement. Each and every provision of the
Definitive Agreement is hereby incorporated in this Assignment as if set forth
here at length. Without limiting the generality of the foregoing, it is
specifically acknowledged and agreed that the representations and warranties,
the indemnification obligations, and any continuing payment obligations of
Assignor and Assignee, and all other provisions of the Definitive Agreement,
shall survive the closing of this transaction and the execution and delivery
hereof.
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THUS DONE AND SIGNED in the presence of the undersigned attesting witnesses
and me, Notary Public at _____________________________ on this ____ day of
_______ 1995.
THE XXXXXX CORPORATION, a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
------------------
---------------------------
NOTARY PUBLIC
THUS DONE AND SIGNED in the presence of the undersigned attesting witnesses
and me, Notary Public at _____________________________ on this ____ day of
_______ 1995.
PLAYERS LAKE XXXXXXX, INC., a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Xxxxx Xxxxxxx, President
------------------
---------------------------
NOTARY PUBLIC
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Exhibit "A" To Assignment
PREPAID ROOM CHARGES AND ADVANCE DEPOSITS
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Exhibit "B" To Assignment
ASSIGNED CONTRACTS, AGREEMENTS, ETC.
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EXHIBIT "I"
REGISTRATION RIGHTS AGREEMENT
PLAYERS INTERNATIONAL, INC.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
August 18, 1995
THE XXXXXX CORPORATION
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxxxx, President
Dear Sirs:
This will confirm the rights of The Xxxxxx Corporation ("you") to have
shares registered under the Securities Act under the asset purchase agreement of
even date between our corporation ("Players") and you (the "Agreement"), and
certain other matters.
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Registration Expenses" means the expenses so described in
Section 7.
"Restricted Stock" means shares of Common Stock of Players
issued to you on even date herewith, the certificates for which are required to
bear the legend set forth in Section 2, excluding shares which may at the time
be sold pursuant to Rule 144 under the Securities Act or which may be otherwise
sold without registration under the Securities Act.
"Securities Act" means the Securities Act of 1933 or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means the expenses so described in
Section 6.
2. Restrictive Legend. Each Certificate representing shares issued to
you on even date herewith and, except as otherwise provided in Section 3, each
certificate issued upon exchange or registration of transfer of any such shares
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
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"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "1933 ACT") OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER THE
1933 ACT AND SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Restricted Stock (other than under the circumstances described in Section 4 and
5), the holder thereof shall give written notice to Players of such holder's
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer and, if requested by Players, shall
be accompanied by an opinion of the stockholder's counsel reasonably
satisfactory to Players to the effect that the proposed transfer may be effected
without registration under the Securities Act, whereupon the holder of such
Restricted Stock shall be entitled to transfer such Restricted Stock in
accordance with the terms of its notice if such opinion of counsel is
satisfactory in form and substance to counsel for Players. Each certificate
approved for transfer as above provided shall bear the legend set forth in
Section 2, except that such certificate shall not bear such legend if (i) such
transfer is made, in the opinion of Players' counsel, pursuant to an effective
registration statement or in accordance with the provisions of Rule 144 (or any
other statutory provisions or rule permitting public sale without registration
under the Securities Act) or (ii) the opinion of counsel which is satisfactory
in form and substance to Players' counsel is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of Players)
would be entitled to transfer such securities in a public sale without
registration under the Securities Act.
4. Limitation on Registration Rights. Players shall not be required to
register under the Securities Act all or any portion of the shares of Restricted
Stock, except as required in Section 5 hereof. Notwithstanding anything
contained in Section 5 hereof, Players shall not be obligated to register shares
of Restricted Stock hereunder to the extent such shares are salable pursuant to
Rule 144 under the Securities Act. The obligations of Players to register shares
of Restricted Stock hereunder shall terminate on the date on which such shares
may be sold pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything herein to the contrary, and not in limitation of any of Players' other
rights hereunder, Players' obligations to file a registration statement, or
cause such registration statement to become and remain effective, shall be
suspended for a period not to exceed 90 days if, in the reasonable and good
faith opinion of Players, such registration or the sale of shares of Restricted
Stock pursuant to such registration would not be in the best interest of
Players.
5. Incidental Registration. If Players at any time proposes to register
any of its securities, which are of the same type and class as the Restricted
Stock, under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention so to do. Upon the written request of any such holder,
given within 20 days after receipt of any such notice, to register any of its
Restricted Stock (which
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September 18, 1995
request shall state the intended method of disposition thereof), Players will
use reasonable efforts to cause the Restricted Stock as to which registration
shall have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by Players. Alternatively,
Players may, in its sole discretion, file a separate registration statement
covering the Restricted Stock as to which registration shall have been
requested. In the event that any registration pursuant to this Section 5 shall
be, in whole or in part, an underwritten public offering of Common Stock, the
Restricted Stock to be registered must be sold through the underwriters and the
number of shares of Restricted Stock to be included in such an underwriting may
be reduced if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold, and the shares selected to be sold shall be selected in
the following order of priority: First, primary financings by Players and shares
of persons who have the right to initiate a registration statement; then to
persons who have "piggyback rights" including, without limitation, rights
generally comparable to those set forth in this Section 5 hereof, pursuant to
agreements entered into prior to the date hereof; then to the holders of
Restricted Stock; then to all other persons who have acquired such "piggyback"
rights pursuant to agreements entered into after the date hereof. If the total
number of shares of Restricted Stock requested to be registered after such
reduction shall still be in excess of the number of shares recommended to be
registered by the underwriters, the number of shares registered, if any, by each
person in the last priority, including a holder of Restricted Stock if such
holders are in the last priority whose shares are to be registered, shall be
reduced pro rata according to the number of shares requested by each such holder
to be registered. Notwithstanding the foregoing provisions, Players may withdraw
any registration statement referred to in this Section 5 without thereby
incurring any liability to the holders of Restricted Stock, and may terminate
any offering after the registration statement becomes effective at any time at
Players' sole discretion.
6. Registration Procedures and Expenses. If and whenever Players is
required by the provisions of Section 5 to offer incidental registration rights
to the holders of Restricted Stock, and such offer is accepted by any such
holder in accordance with the requirements of this Agreement, Players will:
(a) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(b) use its good faith efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the sellers of Restricted Stock or the
managing underwriter reasonably shall request; provided, however, that Players
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process or taxation in any such
jurisdiction;
(c) immediately notify each seller of Restricted Stock under
such registration
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September 18, 1995
statement and each underwriter, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event of which Players has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; upon receipt of such notice, the
holder of registered shares will discontinue any sales of registered stock; upon
giving of such notice Players will file such amendments or supplements to the
registration statement promptly to eliminate such misstatement or omission and
will advise the holder of the registered shares that it has done so, whereupon
the holder may recommence its sale of registered stock; and
(d) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of Players, and cause Players' officers, directors and employees
to supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement.
In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to Players in writing such information
with respect to themselves and the proposed distribution by them as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws.
Players and each seller of Restricted Stock agree to enter
into a written agreement with any managing underwriter selected in the manner
herein provided in such form and containing such provisions as are reasonably
satisfactory to Players and such seller of Restricted Stock and as are customary
in the securities business for such an arrangement between such underwriter,
such seller and companies of Players' size and investment stature.
Players will give the selling holders of Restricted Stock two
days' advance notice of its anticipated filing date of the registration
statement and amendments thereto.
7. Expenses. All expenses incurred by Players in complying with Section
5 hereof, including without limitation all registration and filing fees,
printing expense, fees and disbursements of counsel and independent public
accountants for Players, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws (other than
those which by law must be paid by the selling security holders), fees of the
National Association of Securities Dealers, Inc., fees of transfer agents and
registrars, but excluding any Selling Expenses, are called "Registration
Expenses." All underwriting discounts, selling commissions and transfer taxes
applicable to the sale of outstanding shares and any legal fees and expenses of
counsel or other advisers and agents of the holders of outstanding shares of
Restricted Stock being registered are called "Selling Expenses."
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Players will pay all Registration Expenses. All Selling
Expenses shall be borne by the participating sellers, in proportion to the
number of shares sold by each unless they otherwise agree among themselves.
8. Indemnification.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant hereto, Players will indemnify and hold
harmless each seller of such Restricted Stock thereunder and each other person,
if any, who controls such seller within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that Players
will not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any such seller of Restricted Stock, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant hereto, each seller of such Restricted
Stock thereunder, severally and not jointly, will indemnify and hold harmless
Players and each person, if any, who controls Players within the meaning of the
Securities Act, each officer of Players who signs the registration statement,
each director of and person who controls Players, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
Players or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant hereto, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse Players and each such
officer, director, controlling person, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder
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September 18, 1995
in any such case if and only to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information pertaining to such seller, as such, furnished in
writing to Players by such seller specifically for use in such registration
statement or prospectus.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party, if a claim
in respect thereof is to be made against the indemnifying party hereunder, will
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability that it may have
to any indemnified party under this Section 8, unless such failure shall have
prejudiced the indemnifying party's defense of such claim. In case any such
action shall be brought against any indemnified party, the indemnified party
shall notify the indemnifying party of the commencement thereof and the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party. After notice from the indemnifying party
to such indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 8 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it that are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) No indemnifying party shall be liable for any amounts paid
in a Closing effected without the consent of the indemnifying party, which
consent shall not be withheld unreasonably.
(e) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
9. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock shall
inure to the benefit of any and all proper subsequent holders from time to time
of the Restricted Stock.
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September 18, 1995
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at its office at:
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer;
if to you, at the address stated in this letter;
if to a subsequent holder of Restricted Stock, to it
at such address as may have been furnished to Players in writing by such holder;
or, in any case, at such other address or addresses
as shall have been furnished in writing to Players (in your case or other holder
of Restricted Stock) or to the holders of Restricted Stock or you (in the case
of Players).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the holders of at
least a majority in interest of the outstanding shares of Restricted Stock
treated as a single class.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Notwithstanding anything herein to the contrary, Players
shall not be obligated to include any Restricted Stock in a registration
statement unless the stock has been issued to the person requesting registration
prior to the time the registration statement is initially filed with the
Commission. Players will use reasonable efforts to advise the person requesting
registration of the anticipated filing and effective dates of the registration
statement.
(g) Notwithstanding anything herein to the contrary, the
holder of any Restricted Stock will delay any registered or other sales of
Restricted Stock to the extent required by the managing underwriter of any
underwritten sale of Players Common Stock, for a period of up to 120 days. No
Restricted Stock may be transferred except to a person who undertakes, by a
written instrument satisfactory in form and substance to Players, to be bound by
this Agreement.
(h) Rule 144 Reporting. With a view to making available to
Xxxxxx the benefits of certain rules and regulations of the SEC which may permit
the sale of the Restricted Stock to the public without registration, Players
agrees when required by law:
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AC-57140/3
September 18, 1995
(i) To make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at all
times;
(ii) To use its best efforts to file with the SEC
in a timely manner all reports and other documents required of Players under the
Securities and the Securities Exchange Act of 1934;
(iii) So long as Xxxxxx owns any Restricted Stock,
to furnish Xxxxxx forthwith upon its request a written statement by Players as
to its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Securities Exchange Act; a copy of the most recent annual
or quarterly report of Players; and such other reports and documents so filed by
Players as Xxxxxx may reasonably request in availing itself of any rule or
regulation of the SEC allowing Xxxxxx to sell any such securities without
registration.
(i) Conflict. In the event of any conflict between the
terms of this Agreement and the asset purchase agreement, the terms of this
Agreement shall control.
(j) Transfer of Registration Rights. You shall not transfer,
convey, pledge or assign your rights under this Agreement (the "Registration
Rights"), nor any portion thereof or rights therein, under any circumstances
except as specifically permitted under this Subsection 9(j).
(i) Upon delivery of prior written notice to
Players, you may transfer, convey, pledge or assign the Registration Rights to
Xxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx, or to any member of the
immediate family (i.e., parent, spouse, child or grandchild) of any of the
aforenamed, or to a trust for the benefit of any of the foregoing.
(ii) Upon Players' prior written approval, which
approval shall not be unreasonably withheld, you or Xxxxxxx Xxxxxxxx, Xxxxxxxxx
Xxxxxxxx or Xxxxxxx Xxxxxxx may pledge the Registration Rights any may have to
any Institutional Lender (as hereinafter defined) to secure any loan to any of
them. An "Institutional Lender" shall mean (i) a federally regulated bank,
savings and loan association, trust company and insurance company, or (ii) any
pension, retirement or welfare fund, or other non-profit organization where the
investment policy and financial condition of the fund or organization is subject
to the supervision or audit of the Banking or Insurance Departments of the State
of Louisiana or the Treasurer of the State of Louisiana.
[SIGNATURE BLOCK ON NEXT PAGE]
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AC-57140/3
September 18, 1995
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between Players and you.
Very truly yours,
PLAYERS INTERNATIONAL, INC.
By:____________________________
Name: Xxxxxx Xxxxxxxx
Title: President
AGREED TO AND ACCEPTED as of the date first above written.
THE XXXXXX CORPORATION
BY:_______________________________
Xxxxxxx X. Xxxxxxxx, President
9
AC-57140/3
September 18, 1995
EXHIBIT "J"
TERMINATION AND RELEASE
THIS TERMINATION AND RELEASE, made as of the ___ day of _______ 1995,
by and between THE XXXXXX CORPORATION, a Louisiana corporation having an address
at 000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 ("Landlord") and PLAYERS
LAKE XXXXXXX, INC., a Louisiana corporation having an address at 000 Xxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant are parties to a certain Lease dated as of
May 18 & 19, 1993, and to certain supplements and amendments thereto, dated as
of various dates, covering certain lands, premises, buildings, improvements and
appurtenances located in Lake Xxxxxxx, Calcasieu Parish, Louisiana
(collectively, the "Lease"); and
WHEREAS, on even date herewith, Landlord is selling and conveying to
Tenant, and Tenant is purchasing and taking from Landlord, various real and
personal properties, including the Lease, and the "Premises" covered by the
Lease, all pursuant to and in accordance with the terms of a certain Asset
Purchase Agreement dated of even date herewith between Landlord and Tenant (the
"Agreement"; any capitalized terms not specifically defined herein shall have
the meanings given under the Agreement)
WHEREAS, Landlord and Tenant desire to confirm the termination of the
Lease by virtue of such purchase and sale, and the termination of Tenant's
liability thereunder, as and to the extent hereinafter provided:
NOW, THEREFORE, in consideration of the payment of the Purchase Price
and the sale and conveyance of the Assets, and for the other mutual promises,
agreements and payments made or to be made under the terms of the Agreement,
Landlord and Tenant hereby agree as follows:
1. Termination of Lease. Except as specifically set forth in the
Agreement or in any other agreement or instrument between Landlord and Tenant
relating to the Agreement, the Lease is hereby terminated, and shall be of no
further force or effect from and after the date hereof. Notwithstanding the
foregoing, all agreements of indemnity contained in the Lease shall survive the
execution and delivery hereof.
2. Release of Tenant. Landlord, for itself and its successors and
assigns, and for any other party claiming by, through or under Landlord, does
hereby release and forever discharge Tenant, and
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AC-57140/3
September 18, 1995
its parent, affiliate and subsidiary companies, and their successors and
assigns, and any and every of the respective officers, agents and employees of
any of the foregoing, of and from any and all claims, demands, damages,
liability, obligations, defaults, Events of Default, actions, causes of action
or suits of whatsoever kind or nature (including, without limitation, the
continuation of any condition or state of facts already claimed by Landlord or
any other party to constitute a default or Event of Default), known and unknown,
arising, directly or indirectly, from, under or in connection with the Lease.
3. Reliance; Enforcement. Landlord acknowledges Tenant's material
reliance upon the provisions of this Termination and Release, and agrees that it
may be specifically enforced in any court of competent jurisdiction.
THUS DONE AND SIGNED in the presence of the undersigned attesting
witnesses and me, Notary Public at _____________________________ on this ____
day of _______ 1995.
THE XXXXXX CORPORATION, a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
------------------
---------------------------
NOTARY PUBLIC
THUS DONE AND SIGNED in the presence of the undersigned attesting
witnesses and me, Notary Public at _____________________________ on this ____
day of _______ 1995.
PLAYERS LAKE XXXXXXX, INC., a Louisiana corporation
WITNESSES:
__________________ BY:___________________________
Xxxxx Xxxxxxx, President
------------------
---------------------------
NOTARY PUBLIC
2
