Exhibit 10.22
GENERAL PARTNERSHIP INTEREST PURCHASE AGREEMENT
THIS GENERAL PARTNERSHIP INTEREST PURCHASE AGREEMENT (this "AGREEMENT") is
made as of the first day of April, 1997, by and between HWCC-AURORA MANAGEMENT,
INC., an Illinois corporation (the "BUYER"), and PPI CORPORATION, a New Jersey
corporation (the "SELLER").
RECITALS
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1. The Seller desires to sell, assign and transfer to the Buyer, and
the Buyer desires to purchase and assume from the Seller, the general
partnership interest of the Seller (the "GP INTEREST") in Xxxxx Management,
L.P., a Delaware limited partnership (the "PARTNERSHIP").
2. The parties wish to set forth their agreement with respect to the
purchase and sale of the GP Interest and other matters.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and promises herein contained, the parties agree as follows:
1. PURCHASE, SALE, ASSIGNMENT AND ASSUMPTION OF THE GP INTEREST.
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1.1 PURCHASE, SALE, ASSIGNMENT AND ASSUMPTION. Subject to the
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terms and conditions hereof, at the Closing (as defined in Section 1.3 hereof)
the Seller shall sell, assign, convey and otherwise transfer to the Buyer, and
the Buyer shall purchase and assume from the Seller, all right, title, interest
and obligations of Seller in, to and under the entire GP Interest, free and
clear of any and all security interests, liens, claims, agreements, obligations
and encumbrances of any nature whatsoever other than those specified in the
Agreement of Limited Partnership of the Partnership dated as of February 17,
1994 (the "PARTNERSHIP AGREEMENT"), and the Seller agrees to cause the
Partnership Agreement to be amended to admit the Buyer as a substituted general
partner of the Partnership.
1.2 PURCHASE PRICE. In consideration of the sale, assignment and
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transfer of the GP Interest pursuant to Section 1.1 hereof, the Buyer will pay
to the Seller Eleven Million Seven Hundred Forty-Six Thousand Six-Hundred Sixty
Four Dollars ($11,746,664) (the "PURCHASE PRICE"), to be paid by the Buyer to
the Seller at the Closing (as defined below), as follows:
(A) the Buyer will issue to the Seller a promissory note in
the form of Exhibit 1 attached hereto (the "NOTE"), in the principal amount of
Three Million Eight Hundred Thousand Dollars ($3,800,000);
(B) the Buyer will assign to the Seller a portion of the
outstanding principal amount of that certain PPI Funding Corp. 14 7/8% Secured
Promissory Note due 2006 in the original principal amount of One Hundred Ten
Million Six Hundred Thirty-Five Thousand Seven Hundred Thirty-Nine Dollars and
Forty Cents ($110,635,739.40) the ("PPI FUNDING NOTE") equal to Thirteen Million
Seven Hundred Fifty Thousand Dollars ($13,750,000), which, for purposes of the
Agreement, will be deemed to have a discounted value of Seven Million Five
Hundred Ninety-Six Thousand Six Hundred Sixty-Four Dollars ($7,596,664) as of
December 31, 1996; and
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(C) the Buyer will assign to the Seller the right to receive
accrued interest in the amount of $350,000 on certain notes receivable in the
current aggregate unpaid principal amount of $6,750,000 (the "ACCRUED INTEREST
ON NOTES RECEIVABLE") from Greate Bay Casino Corporation (fka Xxxxx Hotel
Corporation), a Delaware corporation which directly owns 100% of the issued and
outstanding common stock of the Seller.
1.3 CLOSING. The closing of the transactions contemplated hereby
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(respectively, the "CLOSING" and the "TRANSACTIONS") shall be held
simultaneously with the execution and delivery of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
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The Seller, on its own behalf and on behalf of the Partnership, as
applicable, represents and warrants to the Buyer, as of the date hereof, as set
forth below. THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN THIS SECTION 2.
2.1 AUTHORITY. The Seller possesses full corporate power and
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authority to execute and deliver this Agreement and to consummate the
Transactions. This Agreement has been duly and validly executed and delivered
by the Seller and constitutes the legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar laws
from time to time in effect which affect the enforcement of creditors' rights
generally and by general principles of equity.
2.2 NO VIOLATION. The execution and delivery of this Agreement by
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the Seller and the performance by it of the Transactions do not (A) violate any
provision of the Certificate of Incorporation or By-laws of the Seller, or the
Management Services Agreement, dated as of June 21, 1991, by and between
Hollywood Casino-Aurora, Inc. (formerly known as Aurora Riverboats, Inc.) and
the Partnership (assignee of the Seller, the successor by merger to Greate Bay
Casino Corporation), as amended by that certain First Amendment to Management
Services Agreement dated May 14, 1992 (as amended, the "AURORA MANAGEMENT
CONTRACT"), or, to the Seller's knowledge, (B) violate any law or regulation of
any United States federal, territorial, state or local governmental or
regulatory agency or authority (an "AUTHORITY"), (C) require the consent or
approval of any Authority which has not been obtained or (D) result in a breach
of any provision of, or require the consent or approval of any third party which
has not been obtained under, or result in the creation or imposition of any
security interest, lien, claim or other encumbrance upon any portion of the
assets of the Partnership pursuant to the terms of any contract or agreement to
which the Seller or the Partnership is a party, which violation, breach or
consent or approval (if not obtained), in the case of each of clause (B) and (C)
above, would have a material adverse effect on the business, operations or
financial condition of the Partnership or on the Transactions.
2.3 TITLE TO THE GP INTEREST.
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(A) The Seller is the record and beneficial owner of and has
good and valid title to the GP Interest, free and clear of any and all security
interests, liens, claims, agreements, obligations and encumbrances of any nature
whatsoever other than those specified in the Partnership Agreement, and the
delivery by the Seller of the GP Interest to the Buyer conveys to the Buyer good
and valid title to the GP Interest free and clear of all, and does not
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result in the Buyer being subject to any, security interests, liens, claims,
agreements, obligations and encumbrances of any nature whatsoever, other than
those specified in the Partnership Agreement.
(B) Except as set forth in the Partnership Agreement, neither
the Seller has, nor shall the Buyer have immediately after the Closing, any
obligation to make any capital contribution, loan or other payment or any other
transfer of assets or services to the Partnership.
2.4 STRUCTURE OF THE PARTNERSHIP. The Partnership is comprised
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solely of the following two (2) partners: (A) Xxxxx Casino Corporation, a
Delaware corporation ("PCC"), which is the sole limited partner of the
Partnership, and (B) the Seller, which is the sole general partner of the
Partnership. No other person or entity has, or possesses any rights to acquire,
any ownership or equity interest in the Partnership or its capital, profits or
distributions.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
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and warrants to the Seller that the Buyer possesses full corporate power and
authority to execute and deliver this Agreement and to consummate the
Transactions. This Agreement has been duly and validly executed and delivered
by the Buyer and constitutes the legal, valid and binding obligation of the
Buyer, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar laws
from time to time in effect which affect the enforcement of creditors' rights
generally and by general principles of equity. The execution and delivery of
this Agreement by the Buyer and the performance by it of the Transactions do not
violate the Articles of Incorporation or By-laws of the Buyer or, to the Buyer's
knowledge, (A) violate any law or regulation of any Authority, or (B) result in
a breach of any provision of, or require the consent or approval of any third
party which has not been obtained under, the terms of any contract or agreement
to which the Buyer is a party, or the consent or approval of any Authority,
which violation, breach or consent or approval (if not obtained) would have a
material adverse effect on the business, operations or financial condition of
the Buyer or on the Transactions. THE BUYER MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
THIS SECTION 3.
4. CERTAIN COVENANTS.
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4.1 BOOKS AND RECORDS.
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(A) On reasonable notice at any time after the Closing, the
Buyer shall permit representatives of the Seller full and free access at the
Seller's expense, during normal business hours, to all correspondence,
contracts, agreements and purchase and sale orders and other books and records
of the Partnership relating to the operation of the business of the Partnership
as the same may relate to the GP Interest on or prior to the Closing for
purposes of inspection or copying. The Buyer shall cause all such materials to
be preserved for at least six years after the Closing and shall not thereafter
destroy or otherwise dispose of any such materials unless it shall have notified
the Seller at least six months before such disposition and given the Seller the
opportunity to remove and retain such materials.
(B) Without limiting the foregoing, the Buyer agrees that, at
the Seller's expense, for a period of six years after the Closing, it will
assist and cooperate with the Seller in collecting and assembling information
relating to the operation of the business of the Partnership on or prior to the
Closing that customarily has been provided or used in connection with the
preparation of any and all tax returns, information returns or other reports
required to be filed by the Seller or any affiliate of the Seller with any
Authority and shall make available to the Seller the services of personnel
reasonably necessary to enable the Seller or any affiliate of the Seller to
prepare and file any and all tax returns, information returns or other reports
required to
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be filed by the Seller or other affiliate of the Seller with any Authority
and/or to respond to and conduct any and all tax audits or other tax
determinations or proceedings.
4.2 CERTAIN COVENANTS OF THE PARTIES.
(A) FILINGS. Each of the Buyer and the Seller, on its own
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behalf and on behalf of the Partnership, shall promptly take all such action as
may, under applicable law, be necessary or appropriate for, and will promptly
file and, if appropriate, use its best efforts to have declared effective or
approved all documents and notifications with or to any Authority that are
necessary or appropriate for the consummation of the Transactions, and each of
the Buyer and the Seller shall promptly give the other party information
requested by such other party pertaining to it and its affiliates that is
reasonably necessary to enable such other party to take such actions and file in
a timely manner all documents and notifications required to be so filed by
applicable law.
(B) OTHER ACTIONS. Each of the Buyer and the Seller, on its
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own behalf and on behalf of the Partnership, shall use its reasonable best
efforts to consummate the Transactions and make them effective as promptly as
practicable, including, without limitation, (i) defending lawsuits or other
proceedings challenging this Agreement or the consummation of any of the
Transactions, (ii) using reasonable best efforts to lift any injunction or order
adversely affecting this Agreement or the consummation of the Transactions or
(iii) using reasonable best efforts to obtain any consents necessary for its
performance of the Transactions.
(C) PRORATIONS. All taxable items of the Partnership that
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arise prior to or on the date of the Closing and are allocable to the General
Partner of the Partnership pursuant to Section 4.2 of the Partnership Agreement
shall be allocated to the Seller and those that arise after the date of the
Closing and are so allocable to the General Partner shall be allocated to the
Buyer based upon a closing-of-the-books method of accounting.
5. CLOSING DOCUMENTS.
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5.1 THE SELLER'S DOCUMENTS. At the Closing, the Seller will
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deliver or cause to be delivered to the Buyer:
(A) CERTIFICATE. A Certificate of the Secretary of the Seller
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certifying (i) copies of resolutions duly adopted by the Board of Directors of
the Seller authorizing and approving the execution, delivery and performance of
this Agreement and the other agreements and documents executed and delivered in
connection herewith, (ii) that all partnership action necessary to approve the
execution, delivery and performance of this Agreement, and the other agreements
and documents executed and delivered by the Partnership in connection herewith,
shall have been duly and validly taken and (iii) such other matters as the Buyer
may reasonably request;
(B) ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO
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PARTNERSHIP AGREEMENT. An Assignment and Assumption Agreement and Amendment
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to Partnership Agreement, providing for the sale, assignment and assumption of
the GP Interest set forth in Section 1.1 above and the admission and
substitution of the Buyer as the general partner of the Partnership,
substantially in the form attached as Exhibit 2 hereto (the "ASSIGNMENT AND
ASSUMPTION AND AMENDMENT AGREEMENT") executed by each of PCC and the Seller and
such other
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documentation as shall be reasonably requested by the Buyer to evidence the
valid assignment of the GP Interest and the admission and substitution of the
Buyer as the general partner of the Partnership;
(C) AMENDMENTS TO PARTNERSHIP CERTIFICATE. A Certificate of
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Amendment to the Certificate of Limited Partnership of the Partnership,
evidencing the substitution and admission of the Buyer as the general partner of
the Partnership, substantially in the form attached as Exhibit 3 hereto,
executed by each of PCC and the Seller; and
(D) REPLACEMENT NOTE. A new PPI Funding Note in the same
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form as the PPI Funding Note and in an original principal amount equal to the
outstanding principal amount of the PPI Funding Note as of the Closing Date
minus Thirteen Million Seven Hundred Thousand Dollars ($13,750,000).
5.2 THE BUYER'S DOCUMENTS. At the Closing, the Buyer will deliver
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or cause to be delivered to the Seller:
(A) CERTIFICATE. A Certificate of the Secretary of the Buyer
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certifying (i) copies of resolutions duly adopted by the Board of Directors of
the Buyer authorizing and approving the execution, delivery and performance of
this Agreement, the Note and the other agreements and documents executed and
delivered in connection herewith and (ii) such other matters as the Seller may
reasonably request;
(B) ASSIGNMENT AND ASSUMPTION OF AGREEMENT AND AMENDMENT TO
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PARTNERSHIP AGREEMENT. An Assignment and Assumption and Amendment Agreement,
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executed by the Buyer;
(C) THE NOTE. The Note, executed by the Buyer and payable to
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the order of the Seller;
(D) ASSIGNMENT OF PPI FUNDING NOTE. A partial assignment of
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the PPI Funding Note, providing for the assignment of Thirteen Million Seven
Hundred Fifty Thousand Dollars ($13,750,000) in outstanding principal amount of
the PPI Funding Note;
(E) ASSIGNMENT OF ACCRUED INTEREST ON NOTES RECEIVABLE. An
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assignment of the Accrued Interest on Notes Receivable;
(F) SECURITY AGREEMENT AND PLEDGE. A Security Agreement and
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Pledge (the "Security Agreement") providing for the pledge of the GP Interest to
the Seller as security for the payment of the Note, substantially in the form of
Exhibit 4 hereto, executed by the Buyer;
(G) HCA ESTOPPEL LETTER. An estoppel letter executed by
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Hollywood Casino-Aurora, Inc. ( "HCA") stating that the obligations of the
Partnership required to be performed under the terms of the Aurora Management
Contract prior to the Closing have been performed and that there is no existing
breach or default by or on the part of the Partnership thereunder and setting
forth the agreement of HCA respecting the giving of notices of default under the
Aurora Management Contract and related matters, which estoppel letter shall be
in form and substance reasonably satisfactory to the Seller; and
(H) HCC ESTOPPEL LETTER. An estoppel letter executed by
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Hollywood Casino Corporation ("HCC") stating that the obligations, if any, of
the Partnership
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required to be performed prior to the Closing under the terms of the Service
Agreement by and between HCC and the Partnership to be entered into at or before
the Closing have been performed and that there is no existing breach or default
by or on the part of the Partnership thereunder and setting forth the agreement
of HCC respecting the giving of notices of default under such Services Agreement
and related matters, which estoppel letter shall be in form and substance
reasonably satisfactory to the Seller.
6. SURVIVAL OF REPRESENTATIVES; INDEMNITIES.
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(A) SURVIVAL. The representations and warranties contained
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in this Agreement shall survive the sale, assignment and transfer to the Buyer
of the GP Interest hereunder and shall continue in full force and effect. The
agreements and covenants contained in this Agreement shall survive in accordance
with their terms.
(B) NO EFFECT ON LIABILITY. None of (i) the consummation of
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the Transactions, (ii) the delay or omission of any party to exercise any of its
rights under this Agreement or (iii) any investigation or disclosure that any
party makes, any notice that any party gives, or any knowledge that any party
obtains as a result thereof, or otherwise, shall (x) affect the liability of the
parties to one another for breaches of their covenants contained in this
Agreement, (y) affect the liability of the parties to one another for
misrepresentation under this Agreement, or (z) prevent any party from relying on
the representations contained in this Agreement.
6.1 INDEMNITIES.
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(A) THE SELLER'S INDEMNITY.
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(1) The Seller agrees to indemnify and hold the Buyer
harmless from and against any and all liabilities, damages, obligations, claims
and expenses (including, without limitation, reasonable costs of investigation
and reasonable defense and attorney's fees) (collectively "LOSSES") that the
Buyer sustains or becomes subject to as a result of the breach of any of the
warranties, representations, covenants or agreements of the Seller made herein
less any amounts actually received by the Buyer or the Partnership in respect of
such Losses under insurance policies; provided, however, that the Seller's
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indemnity obligations hereunder shall not exceed the amount of the Purchase
Price.
(2) The Buyer shall not have any right to offset against
the Note for Losses indemnified pursuant to Section 6.1(A)(1).
(B) THE BUYER'S INDEMNITY. The Buyer agrees to indemnify
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and hold the Seller harmless from and against all Losses that it sustains or
becomes subject to as a result of the breach of any of the warranties,
representations, covenants or agreements of the Buyer made herein, as well as
any claim made against the Seller arising out of the Aurora Management Agreement
and relating to actions taken after the date of this Agreement, less any amounts
actually received by the Seller in respect of such Loss under insurance
policies.
(C) THIRD PARTY CLAIM. Promptly after receipt by the Buyer
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or the Seller of notification of the assertion, or possible assertion, by a
third party of any claim, action, suit, proceeding or demand with respect to
which indemnification shall or may be claimed by the Buyer or the Seller
pursuant to this Section 6 (the "THIRD PARTY CLAIM") (such recipient being
referred to hereinafter as the "INDEMNITEE") the Indemnitee shall give written
notice describing the Third Party Claim in reasonable detail (an "INDEMNITY
NOTICE") to the other party (herein, the "INDEMNITOR"). Failure by the
Indemnitee to send the Indemnity Notice shall not release the Indemnitor from
its
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obligations hereunder except to the extent that the failure to send the
Indemnity Notice prejudices the rights of the Indemnitor. The Indemnitor shall,
at its option, have full authority to defend any such claim, action, suit,
proceeding or demand, in the name of such Indemnitee or otherwise as the
Indemnitor shall elect utilizing counsel reasonably acceptable to the
Indemnitee, unless (i) the Indemnitee reasonably objects to such assumption on
the ground that counsel for such Indemnitor cannot represent both the Indemnitee
and the Indemnitor because such representation would be reasonably likely to
result in a conflict of interest or because there may be defenses available to
the Indemnitee that are not available to such Indemnitor, (ii) the Indemnitor is
not capable (by reason of insufficient financial capacity, bankruptcy,
receivership, liquidation, managerial deadlock, managerial neglect or similar
events) of maintaining a reasonable defense of such action or proceeding, (iii)
the action or proceeding seeks injunctive or other equitable relief against the
Indemnitee, or (iv) the amount in controversy exceeds the amount for which the
Indemnitor is liable under this Section 6.1. Neither the Indemnitor nor the
Indemnitee shall adjust, compromise or settle any such claim, action, suit,
proceeding or demand without the written consent of the other, which consent
shall not be unreasonably withheld. As to any Third Party Claim the defense of
which has been assumed by the Indemnitor, (i) the Indemnitee shall cooperate
fully in such defense as and to the extent reasonably requested by the
Indemnitor (such cooperation shall include the retention and, upon the
Indemnitor's request, the provision to the Indemnitor of records and information
that are reasonably relevant to such claim or demand and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder) and (ii) the Indemnitor shall
not, subsequent to such assumption, be liable for any legal expenses incurred by
the Indemnitee. In the event of any claim under this Section 6 for
indemnification (whether or not in connection with a Third Party Claim), the
Indemnitee shall promptly advise the Indemnitor in writing, in reasonable
detail, of the amount and circumstances surrounding said claim (which notice
shall also be deemed to be an Indemnity Notice).
(D) INDEMNITY EXCLUSIVE REMEDY. Other than with respect to
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enforcement of its rights to receive payment of the Note and to enforce the
Security Agreement and Pledge, the indemnity in this Section 6 shall be the
exclusive remedy for any misrepresentation or breach of warranty or breach of
any covenant or agreement in this Agreement.
7. FURTHER ASSURANCES AND COOPERATION. Following the Closing, the
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Seller and the Buyer shall each promptly execute, deliver and/or file such
documents, and promptly take such other actions, as shall be reasonably
requested by the other party to effectuate the Transactions.
8. GENERAL PROVISIONS.
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8.1 NOTICES. All notices and other communications hereunder
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shall be in writing and shall be delivered personally (including express
courier) or sent by telecopy (and promptly confirmed by mail) or sent by prepaid
registered or certified mail (return receipt requested) to the parties at the
following addresses:
(A) if to the Buyer, to
HWCC-Aurora Management, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
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with a copy to:
Xxxxxx and Xxxxx, LLP
0000 XxxxxxxXxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, III
Telecopier: (000) 000-0000
(B) if to the Seller, to
PPI Corporation
Two Galleria Tower, Suite 2200
13455 Xxxx Road, LB48
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxx & Xxxxx Incorporated
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, III
Telecopier: (000) 000-0000
and to:
PPI Corporation
000 Xxxxx Xxxxxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
Notices sent as aforesaid shall be deemed given and effective upon receipt (or
the date delivery is refused). Any party (and any other person or entity
designated to receive notice) may change its address or telecopy number for
notice by delivery to all other parties of notice to such effect in the manner
set forth herein.
8.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits,
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Schedules, documents and instruments referred to or incorporated herein)
constitutes the entire agreement, and supersedes all other prior agreements and
undertakings, both written and oral, among the parties with respect to the
subject matter hereof and thereof.
8.3 THIRD PARTIES; ASSIGNMENT. This Agreement is not intended to
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confer upon any person other than the parties hereto any rights or remedies
hereunder and shall not be assigned (either rights or obligations) by either
party without the prior written consent of the other party.
8.4 GOVERNING LAW. This Agreement shall be construed in
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accordance with the laws of the State of Texas and of the United States of
America, except to the extent that the requirements of the New Jersey Casino
Control Commission, the Illinois Gaming Board, the
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Mississippi Gaming Commission and any other similar entity (collectively, the
"GAMING AUTHORITIES") and the New Jersey Casino Control Act, the Illinois
Riverboat Gambling Act, the Mississippi Gaming Control Act, all rules and
regulations promulgated thereunder and any and all other applicable gaming laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, notices,
rules, regulations, restrictions and requirements (collectively, the "GAMING
LAWS") shall necessarily control, in which event the rights and obligations of
the parties hereto shall be subject and subordinate to the requirements of the
Gaming Authorities and the Gaming Laws.
8.5 COUNTERPARTS. This Agreement may be executed in counterparts
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which together shall constitute a single agreement.
8.6 JURISDICTION AND VENUE. Each party hereto irrevocably submits
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and consents to the exclusive jurisdiction of the United States District Court
for the Northern District of Texas and, if such court does not have
jurisdiction, of the courts of the State of Texas in Dallas County, in
connection with any action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby, including the enforcement of
any arbitration award, and hereby waives any forum non conveniens objection to
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any of such fora. In any such litigation, each party waives personal service of
the summons and complaint or other process and papers issued therein and agrees
that the service thereof may be made by certified or registered mail directed to
it at the address provided for in Section 8.1.
8.7 AMENDMENT. This Agreement may only be amended by an
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instrument in writing signed by the parties hereto.
8.8 WAIVER. Any term or provision of this Agreement may be waived
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at any time by the party or parties entitled to the benefits thereof but (A) no
such waiver shall be effective unless in writing and signed by the party claimed
to have made such waiver, and (B) no waiver of any term, provision or breach of
this Agreement shall operate or be construed as a waiver of the same or any
other term or provision, or any other breach of this Agreement, on any other
occasion.
8.9 SEVERABILITY. In case any one or more of the provisions
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contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not effect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER:
HWCC-AURORA MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
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SELLER:
PPI CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
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Exhibit 1
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PROMISSORY NOTE
$3,800,000.00 Dallas, Texas April 1, 1997
FOR VALUE RECEIVED, the undersigned, HWCC-AURORA MANAGEMENT, INC., an
Illinois corporation (the "MAKER"), hereby unconditionally promises to pay to
the order of PPI CORPORATION, a New Jersey corporation ("PAYEE"), at Two
Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX 00, Xxxxxx, Xxxxx 00000, or such
other address in Dallas County, Texas, given to Maker by Payee, the principal
sum of Three Million Eight Hundred Thousand and 0/100 Dollars ($3,800,000.00) in
lawful money of the United States of America, together with interest (calculated
on the basis of a 365-day year or 366-day year, as appropriate), on the unpaid
principal balance, computed from the date hereof until maturity at the rate per
annum equal to the Interest Rate.
SECTION 1. DEFINITIONS. When used in this Note, the following terms shall
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have the respective meanings specified herein or in the section referred to:
"Assignment and Assumption Agreement" shall mean the Assignment and
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Assumption Agreement and Amendment to Agreement of Limited Partnership of PMLP
of even date herewith by and among Maker, Payee and Xxxxx Casino Corporation.
"Business Day" shall mean a day upon which business is transacted by
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national banks in Dallas, Texas.
"Event of Default" shall have the meaning ascribed to it in Section 5
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hereof.
"Gaming Authorities" shall mean the New Jersey Casino Control Commission,
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the Illinois Gaming Board, the Mississippi Gaming Commission and any other
similar entity.
"Gaming Laws" shall mean the New Jersey Casino Control Act, the Illinois
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Riverboat Gambling Act, the Mississippi Gaming Control Act, all rules and
regulations promulgated thereunder and any and all other applicable gaming laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, notices,
rules, regulations, restrictions and requirements.
"General Partnership Interest" shall mean Maker's general partnership
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interest in PMLP.
"Interest Rate" shall mean fourteen percent (14%).
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"Management Services Agreement" shall mean that certain Management Services
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Agreement made and entered into as of June 21, 1991, by and between Hollywood
Casino-Aurora, Inc., an Illinois corporation ("HCA"), and Greate Bay Casino
Corporation, a New Jersey corporation ("GBCC") (whose interest is now owned by
PMLP), as amended by that certain First Amendment to Management Services
Agreement made and entered into as of May 14, 1992, by and between HCA and GBCC
(whose interest is now owned by PMLP).
"Maximum Rate" shall mean the highest nonusurious rate of interest (if any)
------------
permitted from day to day by applicable law. Payee hereby notifies and
discloses to Maker that, for purposes of Tex. Rev. Civ. Stat. Xxx. art. 5069-
1.04, as it may from time to time be amended, the "applicable rate ceiling"
shall be the "indicated rate" ceiling from time to time in effect as limited by
article 5069-1.04(b); provided, however, that to the extent permitted by
applicable law, Payee reserves the right to change the "applicable rate ceiling"
from time to time by further notice and disclosure to Maker.
"Obligation" shall mean all of Maker's indebtedness, liabilities and
----------
obligations now or hereafter existing in favor of Payee, arising under this
Note, the Security Agreement, the Purchase Agreement or the Assignment and
Assumption Agreement, regardless of whether they are direct, indirect, primary,
secondary, joint, several, joint and several, liquidated, unliquidated, fixed or
contingent.
"PMLP" shall mean Xxxxx Management, L.P., a Delaware limited partnership.
----
"Purchase Agreement" shall mean the General Partnership Interest Purchase
------------------
Agreement of even date herewith by and between Maker and Payee.
"Security Agreement" shall mean that certain security agreement dated of
------------------
even date herewith from Maker to Payee covering the General Partnership
Interest.
"Services Agreement" shall mean that certain Services Agreement of even
------------------
date herewith, by and between Hollywood Casino Corporation, a Delaware
corporation, and PMLP.
SECTION 2. PAYMENT. The Note shall be due and payable in (i) equal
-------------------
monthly installments of principal and interest in the amount of $83,333.00,
commencing on May 1, 1997, and thereafter, on the first day of each succeeding
calendar month during the term of this Note; (ii) variable quarterly
installments of principal commencing on July 1, 1997, and thereafter, on each
succeeding October 1, January 1, April 1 and July 1, through January 1, 2002, in
the amount equal to the general partner's share of quarterly cash distributions
from PMLP pursuant to Section 4.3 of the Agreement of Limited Partnership of
PMLP dated as of February 17, 1994, as amended to date; and (iii) in one final
installment of principal on April 1, 2002 in the amount of the unpaid principal
balance, if any, on this Note as of such date together with all accrued and
unpaid interest, if any.
Should the principal of, or any installment of the principal of or interest
upon, this Note become due and payable on any day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day, and
interest shall be payable with respect to such extension. All payments of
principal and interest on this Note shall be made by Maker to Payee in federal
or other immediately available funds. Payments made to Payee by Maker hereunder
shall be applied first to accrued interest and then to principal.
All past due principal of and, to the extent permitted by applicable law,
interest upon this Note shall bear interest at the Maximum Rate.
SECTION 3. WAIVER. Except as otherwise provided herein, Maker and each
------------------
surety, endorser, guarantor and other party ever liable for payment of any sums
of money payable upon this Note, jointly and severally waive presentment,
demand, protest, notice of protest and non-payment or other notice of default,
notice of acceleration and intention to accelerate or other notice of any kind,
and agree that their liability under this Note shall not be affected by any
renewal or extension in the time of payment hereof, or in any indulgences, or by
any release or change in any security for the payment of this Note, and hereby
consent to any and all renewals, extensions, indulgences, releases or
-2-
changes, regardless of the number of such renewals, extensions, indulgences,
releases or changes.
No waiver by Payee of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise, shall be
considered a waiver of any other subsequent right or remedy of Payee; no delay
or omission in the exercise or enforcement by Payee of any rights or remedies
shall ever be construed as a waiver of any right or remedy of Payee; and no
exercise or enforcement of any such rights or remedies shall ever be held to
exhaust any right or remedy of Payee.
SECTION 4. SECURITY. This Note is secured by the collateral described in
--------------------
the Security Agreement.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. An "Event of Default" shall
------------------------------------------
exist hereunder if any one or more of the following events shall occur and be
continuing: (a) Maker shall fail to pay when due any principal of, or interest
upon, this Note or any other Obligation and such failure shall continue for ten
(10) days following the date Payee notifies Maker of such failure; (b) any
representation or warranty made by Maker to Payee herein or in the Security
Agreement shall prove to be untrue or inaccurate in any material respect and
shall continue to be untrue or inaccurate thirty (30) days after the date Payee
notifies Maker of such event; (c) default shall occur in the performance of any
of the covenants or agreements of Maker contained herein or in the Security
Agreement and such default shall continue for thirty (30) days following the
date Payee notifies Maker of such default; (d) default shall occur in the
payment of any material indebtedness of Maker, or any such indebtedness shall
become due before its stated maturity by acceleration of the maturity thereof or
otherwise or shall become due by its terms and shall not be promptly paid or
extended; (e) the Security Agreement shall cease to be a legal, valid, binding
agreement enforceable against any party executing the same in accordance with
the respective terms thereof or shall in any way be terminated or become or be
declared ineffective or inoperative or shall in any way whatsoever cease to give
or provide the liens, security interests, rights, titles, interests, remedies,
powers or privileges intended to be created thereby; (f) Maker shall (1) apply
for or consent to the appointment of a receiver, trustee, intervenor, custodian
or liquidator of itself or of all or a substantial part of its assets, (2) be
adjudicated a bankrupt or insolvent or file a voluntary petition for bankruptcy
or admit in writing that it is unable to pay its debts as they become due, (3)
make a general assignment for the benefit of creditors, (4) file a petition or
answer seeking reorganization or an arrangement with creditors or to take
advantage of any bankruptcy or insolvency laws, or (5) file an answer admitting
the material allegations of, or consent to, or default in answering, a petition
filed against it in any bankruptcy, reorganization or insolvency proceeding, or
take corporate action for the purpose of effecting any of the foregoing; (g) an
order, judgment or decree shall be entered by any court of competent
jurisdiction or other competent authority approving a petition seeking
reorganization of Maker or appointing a receiver, trustee, intervenor or
liquidator of Maker, or of all or substantially all of its or their assets, and
such order, judgment or decree shall continue unstayed and in effect for a
period of sixty (60) days; (h) Payee's liens, mortgages or security interests in
any of the collateral for this Note should become unenforceable, or cease to be
first priority liens, mortgages or security interests; (i) the dissolution or
termination of Maker; (j) any final judgment(s) for the payment of money in
excess of the sum of $100,000 in the aggregate shall be rendered against Maker
and such judgment or judgments shall not be satisfied or discharged at least ten
(10) days prior to the date on which any of its assets could be lawfully sold to
satisfy such judgments; or (k) any default or event of default shall occur under
the Services Agreement or the Management Services Agreement.
Upon the occurrence of any Event of Default hereunder or under the Security
Agreement, then in any such event the holder hereof may, at its option, (i)
declare the entire unpaid balance of principal of and accrued interest upon this
Note and any other Obligation to be immediately due and payable without
presentment or notice of any kind which Maker waives pursuant to Section 3
---------
herein,
-3-
(ii) reduce any claim to judgment; and/or (iii) pursue and enforce any of
Payee's rights and remedies available pursuant to any applicable law or
agreement including, without limitation, foreclosing all liens and security
interests securing payment of all or any part hereof or thereof.
The holder hereof agrees that, notwithstanding anything set forth herein to
the contrary, in the event of a default hereunder or in the performance of any
of the terms, covenants or conditions contained in any instrument or instruments
given as security for the payment of this Note, which defaults do not involve
the payment of money and for which the holder hereof elects to accelerate the
maturity of the indebtedness evidenced hereby, the holder hereof shall, prior to
such acceleration, give written notice of such default to Maker as and to the
extent hereinafter provided, which notice shall be the only notice required to
be given to Maker or others liable hereon. In the event that such default shall
not be cured within ten (10) days from the effective date of such notice, then
the holder hereof may, at such holder's option, without further or additional
notice, and, in any event, without demand or presentment, declare the
indebtedness evidenced by this Note at once due and payable. The foregoing is
not intended and shall not be deemed under any circumstances to require the
holder hereof to give notice of any type or nature to Maker in the event of
default in the payment of any installment of principal or interest hereon, which
notice, together with any demand or presentment hereof, are hereby expressly
waived by Maker.
SECTION 6. NOTICE. Whenever this Note requires or permits any notice,
------------------
approval, request or demand from one party to another, the notice, approval,
request or demand must be in writing and shall be deemed to have been given when
personally served (including by courier or overnight delivery service) or sent
by telecopy (with confirmation of receipt received) or when deposited in the
United States mails, registered or certified, return receipt requested,
addressed to the party to be notified at the following address (or at such other
address as may have been designated by written notice):
Payee: PPI Corporation
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopier: (000) 000-0000
Maker: HWCC-Aurora Management, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
SECTION 7. VOLUNTARY PREPAYMENT. Maker reserves the right to prepay the
--------------------------------
outstanding principal balance of this Note, in whole or in part, at any time and
from time to time, without premium or penalty. Any such prepayment shall be
made together with payment of interest accrued on the amount of principal being
prepaid through the date of such prepayment, and shall be applied to the
installments of principal due hereunder in the inverse order of maturity.
SECTION 8. USURY LAWS. Regardless of any provisions contained in this
----------------------
Note, the Payee shall never be deemed to have contracted for or be entitled to
receive, collect or apply as interest on this Note, any amount in excess of the
Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount which would be excessive interest shall be
applied to the reduction of the unpaid principal balance of this Note, and, if
the principal balance of
-4-
this Note is paid in full, any remaining excess shall forthwith be paid to
Maker. In determining whether or not the interest paid or payable under any
specific contingency exceeds the Maximum Rate, Maker and Payee shall, to the
maximum extent permitted under applicable law, (i) characterize any non-
principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense, fee, or premium, rather than as
interest; (ii) exclude voluntary prepayments and the effect thereof; and (iii)
spread the total amount of interest throughout the entire contemplated term of
this Note so that the interest rate is uniform throughout such term.
SECTION 9. COSTS. If this Note is placed in the hands of an attorney for
-----------------
collection, or if it is collected through any legal proceeding at law or in
equity, or in bankruptcy, receivership or other court proceedings, Maker agrees
to pay all costs of collection, including, but not limited to, court costs and
reasonable attorneys' fees, including all costs of appeal.
SECTION 10. APPLICABLE LAW. This Note is being executed and delivered and
---------------------------
is intended to be performed in the State of Texas. This Note shall be construed
in accordance with the laws of the State of Texas and of the United States of
America, except to the extent that the requirements of the Gaming Authorities
and Gaming Laws shall necessarily control, in which event the rights and
obligations of the parties hereto shall be subject and subordinate to the
requirements of the Gaming Authorities and the Gaming Laws. In the event of a
dispute involving this Note or any other instruments executed in connection
herewith, the undersigned irrevocably agrees that venue for such dispute shall
lie in any court of competent jurisdiction in Dallas County, Texas.
MAKER:
HWCC-AURORA MANAGEMENT, INC.
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
-5-
Exhibit 2
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND AMENDMENT TO AGREEMENT OF LIMITED
PARTNERSHIP OF
XXXXX MANAGEMENT, L.P.
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO AGREEMENT OF
LIMITED PARTNERSHIP OF XXXXX MANAGEMENT, L.P. (this "AGREEMENT"), is made as of
April 1, 1997 by and among PPI CORPORATION, a New Jersey corporation ("PPI"),
XXXXX CASINO CORPORATION, a Delaware corporation ("PCC"), and HWCC-AURORA
MANAGEMENT, INC., an Illinois corporation ("HOLLYWOOD").
RECITALS
--------
1. Xxxxx Management, L.P. (the "PARTNERSHIP") has been formed as a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
(the "ACT") pursuant to a Certificate of Limited Partnership of the Partnership,
as filed in the office of the Secretary of State of the State of Delaware (the
"SECRETARY OF STATE") on October 26, 1994 (the "CERTIFICATE"), and an Agreement
of Limited Partnership of the Partnership, dated February 17, 1994 (the
"PARTNERSHIP AGREEMENT").
2. PPI is the sole general partner of the Partnership and PCC is the sole
limited partner of the Partnership.
3. PPI desires to assign, transfer and convey all of its interest in the
Partnership as a general partner of the Partnership (the "GP INTEREST") to
Hollywood, and PPI desires to withdraw from the Partnership as a general partner
of the Partnership.
4. Hollywood desires to purchase the GP Interest, and Hollywood and PCC
desire that Hollywood be admitted to the Partnership as a substitute general
partner of the Partnership.
5. PPI and Hollywood are, contemporaneously herewith, entering into a
General Partnership Interest Purchase Agreement dated as of the date hereof (the
"PURCHASE AGREEMENT"), pursuant to which PPI has agreed to sell to Hollywood,
and Hollywood has agreed to purchase, the GP Interest.
6. The undersigned, being all of the partners of the Partnership, to
accomplish the foregoing, desire to amend the Partnership Agreement and provide
for the assignment and assumption of the General Partner Interest in the manner
set forth herein.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein and in the Purchase Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. ASSIGNMENT. Notwithstanding any provision in the Partnership
----------
Agreement to the contrary, for value received, the receipt and sufficiency of
which are hereby acknowledged, upon the execution of this Agreement by the
parties hereto, PPI does hereby sell, assign, convey and otherwise transfer to
Hollywood all right, title, interest and obligations of PPI in, to and under the
GP Interest. Such assignment entitles Hollywood to become or to exercise all
rights and powers, including management rights, of a general partner under the
Act and the Partnership Agreement.
2. ASSUMPTION AND RELEASE. Hollywood does hereby assume and agree to
----------------------
perform, pay or discharge those liabilities and obligations set forth in,
related to, or arising out of the GP Interest under the Partnership Agreement
and the Act, to the extent to be performed, paid or discharged after the date
hereof. PPI is hereby released from any and all liabilities and obligations to
the Partnership, whether known or unknown, liquidated or unliquidated, and,
subject to the provisions of Xxxxxxx 0 xxxxx, xxxx of the Partnership, PCC or
Hollywood shall have any claim against PPI on account, by reason of or pursuant
to the Partnership Agreement or PPI having acted as a general partner of the
Partnership.
3. ADDITIONAL RIGHTS AND OBLIGATIONS. PPI and Hollywood agree and
---------------------------------
acknowledge that this Agreement is being entered into pursuant to and subject to
the terms and conditions set forth in the Purchase Agreement and that additional
rights of PPI and Hollywood are expressly provided for therein, and that the
execution and delivery of this Agreement shall not impair or diminish any of the
rights or obligations of any of the parties to the Purchase Agreement as set
forth therein.
4. ADMISSION. Notwithstanding any provision in the Partnership Agreement
----------
to the contrary, Hollywood is hereby admitted to the Partnership as a general
partner of the Partnership. The admission shall be effective upon the filing of
an amendment to the Certificate in the Office of the Secretary of State of
Delaware that reflects the fact that Hollywood is a general partner of the
Partnership, and shall occur, and for all purposes shall be deemed to have
occurred, immediately prior to the withdrawal of PPI from the Partnership as a
general partner of the Partnership.
5. WITHDRAWAL. Notwithstanding any provision in the Partnership
----------
Agreement to the contrary, PPI hereby withdraws from the Partnership as a
general partner of the Partnership. The withdrawal shall be effective upon the
filing of an amendment to the Certificate in the Office of the Secretary of
State of Delaware that reflects the fact that PPI is not a general partner of
the Partnership. Notwithstanding such withdrawal, PPI and its directors,
officers, employees and agents, and their respective assigns, shall nevertheless
continue to be "Covered Persons" for the purposes of Section 6.6 and 6.7 of the
Partnership Agreement and entitled to enforce the provisions thereof.
6. CONTINUATION. Following the withdrawal of PPI from the Partnership as
------------
a general partner of the Partnership, Hollywood is authorized to and hereby
agrees to continue the business of the Partnership without dissolution.
7. BOOKS AND RECORDS. PPI, as the withdrawing general partner of the
-----------------
Partnership, and Hollywood, as the substituted general partner of the
Partnership, shall take all actions necessary under the Act and the Partnership
Agreement to evidence the withdrawal of PPI from the Partnership as a general
partner of the Partnership and the admission of Hollywood to the Partnership as
a substituted general partner of the Partnership.
8. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
------------------
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Partnership Agreement, notifications and other
documents as may be reasonably requested for the purpose of giving effect to, or
evidencing or giving notice of, the transactions contemplated by this Agreement.
9. BINDING EFFECT. This Agreement, and all the terms and provisions
--------------
hereof, shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
-------------------------
counterparts, which shall constitute a single agreement.
-2-
11. AGREEMENT IN EFFECT. Except as hereby amended, the Partnership
-------------------
Agreement shall remain in full force and effect.
12. GOVERNING LAW. The construction and validity of this Agreement and
-------------
the rights and obligations of the respective parties hereunder shall be governed
by and interpreted and enforced in accordance with the laws of the State of
Delaware except to the extent that applicable gaming laws necessarily control.
13. NOTICES. Any and all written notices to Hollywood required or
-------
permitted by this Agreement or the Partnership Agreement shall be addressed to:
HWCC-Aurora Management, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attn.: Xx. Xxxxxxx X. Xxxxx,
General Counsel
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
14. AMENDMENT. This Agreement may only be amended by an instrument in
---------
writing signed by the parties hereto.
* * * * *
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
HWCC-AURORA MANAGEMENT, INC.,
as General Partner
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX CASINO CORPORATION,
as Limited Partner
By:
-----------------------------------
Name: Xxxxxxx X. XxXxxxx III
Title: Vice President
PPI CORPORATION,
as Withdrawing General Partner
By:
-----------------------------------
Name: Xxxx X. Xxxxx
Title: President
-4-
Exhibit 3
---------
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
XXXXX MANAGEMENT, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership
of Xxxxx Management, L.P. (the "PARTNERSHIP") pursuant to the provisions of
Section 17-202 of the Revised Uniform Limited Partnership Act of the State of
Delaware, does hereby certify as follows:
FIRST: The name of the Partnership is Xxxxx Management, L.P.
SECOND: Article 3 of the Certificate of Limited Partnership shall be
amended as follows:
The name and business address of the sole general partner of the
Partnership are as follows:
HWCC-Aurora Management, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Dallas, Texas 75240
IN WITNESS WHEREOF, the undersigned executed this Amendment to the
Certificate of Limited Partnership as of this 1st day of April, 1997.
XXXXX MANAGEMENT, L.P.
BY: PPI CORPORATION,
its Withdrawing General Partner
By:
-----------------------------------
Xxxxxxx X. Xxxxx
Vice President
BY: HWCC-AURORA MANAGEMENT, INC.,
Its Substituted General Partner
By:
-----------------------------------
Xxxxxxx X. XxXxxxx III
Vice President
Exhibit 4
---------
SECURITY AGREEMENT AND PLEDGE
THIS SECURITY AGREEMENT is made and entered into as of April 1, 1997, by
and between HWCC-AURORA MANAGEMENT, INC., an Illinois corporation ("PLEDGOR"),
and PPI CORPORATION, a New Jersey corporation ("SECURED PARTY").
1. COLLATERAL AND OBLIGATIONS.
--------------------------
Pledgor is the legal and equitable owner of a general partnership interest
(the "GENERAL PARTNERSHIP INTEREST") in Xxxxx Management, L.P., a Delaware
limited partnership (the "PARTNERSHIP"), created and existing under that certain
Agreement of Limited Partnership dated February 17, 1994, as amended by that
certain Assignment and Assumption Agreement and Amendment to Agreement of
Limited Partnership (the "ASSIGNMENT AND ASSUMPTION AND AMENDMENT AGREEMENT"),
dated of even date herewith, (as amended, the "PARTNERSHIP AGREEMENT").
Pursuant to that certain General Partnership Interest Purchase Agreement of even
date herewith (the "PURCHASE AGREEMENT"), Pledgor has executed that one certain
promissory note payable to the order of Secured Party in the original principal
amount of Three Million Eight Hundred Thousand Dollars ($3,800,000) (the
"NOTE"), dated of even date herewith. Capitalized terms not otherwise defined
herein shall have the same meanings as in the Note, the terms and provisions of
which are incorporated by this reference. As used herein, the term
"OBLIGATIONS" shall mean: all indebtedness, liabilities and obligations of
Pledgor arising under the Note, this Security Agreement, the Purchase Agreement
and the Assignment and Assumption and Amendment Agreement, now or hereafter
existing in favor of Secured Party, regardless of whether they are direct,
indirect, primary, secondary, joint, several, joint and several, liquidated,
unliquidated, fixed or contingent, and any and all renewals, extensions,
modifications, rearrangements, or restatements of all or any part of the
indebtednesses, liabilities, and obligations arising under any of the
Obligations.
In order to secure the Obligations, Pledgor hereby pledges, transfers and
assigns to Secured Party and grants to Secured Party a security interest in and
to the following (the "COLLATERAL"):
All of Pledgor's right, title and interest in and to the General
Partnership Interest, whether now owned or hereafter acquired, including
(a) all distributions, proceeds, fees, preferences, payments or other
benefits which Pledgor now is or may hereafter become entitled to receive
with respect to or on account of the General Partnership Interest and (b)
all rights, powers and authority of Pledgor to serve as the sole general
partner of the Partnership to the fullest extent provided in the
Partnership Agreement.
2. WARRANTIES AND COVENANTS OF PLEDGOR.
-----------------------------------
The Pledgor hereby warrants to Secured Party and covenants and agrees with
Secured Party as follows:
(a) That Pledgor is the sole legal and equitable owner and holder of
the General Partnership Interest; that it has the authority to execute this
Security Agreement; and that this Security Agreement constitutes the legal,
valid and binding obligation of Pledgor;
(b) That, as of the date hereof, Pledgor has not transferred,
assigned, pledged, hypothecated or granted any security interest in all or any
portion of the Collateral; that it has full right and power to make the
transfer, pledge and assignment and grant the security interest granted hereby;
and that this instrument is effective to accomplish such transfer, pledge,
assignment and grant;
(c) That Pledgor shall, at its sole cost and expense, execute and
deliver any financing statements or other documents which Secured Party
reasonably requests to protect or perfect the assignment, pledge, transfer and
grant of the security interest made herein;
(d) That Secured Party shall not be responsible in any way for any
depreciation in the value of the Collateral nor have any duty or responsibility
whatsoever to take any steps to preserve any rights of Pledgor in the
Collateral; and
(e) That Pledgor shall not sell, mortgage, hypothecate, assign or
otherwise transfer any portion of or interest in the Collateral without the
prior written consent of Secured Party.
3. EVENTS OF DEFAULT.
-----------------
A Default or Event of Default under the Note shall constitute an "Event of
Default" hereunder.
4. REMEDIES UPON DEFAULT.
---------------------
(a) Upon the occurrence of any Event of Default, Secured Party shall
have the following rights with respect to the Collateral:
(1) To sell the Collateral or any part thereof, upon giving at
least ten (10) days' prior notice to Pledgor of the time and place of sale
(which notice Pledgor and Secured Party agree is reasonable), for cash or
upon credit or for future delivery, Pledgor hereby waiving all rights, if
any, of marshalling the Collateral and any other security for the
Obligations, and at the option and in the complete discretion of Secured
Party, either:
(A) at public sale; or
(B) at private sale, in which event such notice shall also
contain the terms of the proposed sale, and Pledgor shall have until
the time of such proposed sale in which to redeem the Collateral or to
procure a purchaser willing, ready and able to purchase the Collateral
on terms more favorable to Pledgor, Secured Party and the holders of
the Note, and if such a purchaser is so procured, then Secured Party
shall sell the Collateral to the purchaser so procured; and
(2) To bid for and to acquire, unless prohibited by applicable
law, free from any redemption right, the Collateral, or any part thereof,
and, if Secured Party is then the holder of the Obligations or any
participation or other interest therein, in lieu of paying cash therefor,
Secured Party may make settlement for the selling price by crediting the
net selling price, if any, after deducting all costs and expenses of every
kind, upon the outstanding principal amount of the Obligations, in such
order and manner as Secured Party, in its discretion, may deem advisable.
The Secured Party, upon so acquiring the Collateral, or any part thereof,
shall be entitled to hold or otherwise deal with or dispose of the same in
any manner not prohibited by applicable law.
(3) To enforce any other remedy available to Secured Party at law
or in equity.
From time to time Secured Party may, but shall not be obligated to,
postpone the time and change the place of any proposed sale of any of the
Collateral for which notice has been given as provided above, upon giving at
least five (5) days' prior notice to Pledgor (which notice Pledgor and Secured
Party agree is reasonable) of the new time and place of such sale whenever, in
the judgment of Secured Party, such postponement or change is necessary or
appropriate in order that the
-2-
provisions of this agreement applicable to such sale may be fulfilled or in
order to obtain more favorable conditions under which such sale may take place.
If, in the exercise of its remedies hereunder, Secured Party (but only if
Secured Party is PPI Corporation) elects to foreclose on the portion of the
Collateral described in clause (b) of the description of the Collateral
contained in the second paragraph of Section 1 hereof, and if Secured Party is
the successful bidder at any such public or private sale conducted hereunder
(the "foreclosure"), Secured Party shall have the right, but not the obligation,
to become and to be admitted as the sole general partner of the Partnership. In
order to exercise such right, Secured Party shall give written notice to Pledgor
and the Partnership any time after the foreclosure whereupon Pledgor shall
immediately execute and deliver to Purchaser an amendment to the Partnership
Agreement and to the Partnership's Certificate of Limited Partnership pursuant
to which the Pledgor withdraws as the general partner of the Partnership and
Secured Party is admitted as the new sole general partner of the Partnership.
Pledgor hereby irrevocably appoints Secured Party as its true and lawful
attorney-in-fact to execute and deliver the foregoing documents and any and all
other documents or instruments reasonably necessary to implement the rights
granted to Secured Party pursuant to this paragraph. This power of attorney is
coupled with an interest and shall thus be irrevocable by Pledgor. The rights
granted to Secured Party under this paragraph shall survive the foreclosure and
the exercise by Secured Party of any and all other rights and remedies available
to Secured Party.
(b) In case of any sale by Secured Party of any of the Collateral on
credit or for future delivery, which may be elected at the option and in the
complete discretion of Secured Party, the Collateral so sold may be retained by
Secured Party until the selling price is paid by the purchaser, but Secured
Party shall incur no liability in case of failure of the purchaser to take up
and pay for the Collateral so sold. In case of any such failure, such
Collateral so sold may be again similarly sold. After deducting all costs or
expenses of every kind (including, without limitation, the reasonable attorneys'
fees and legal expenses incurred by Secured Party), Secured Party shall apply
the residue of the proceeds of any sale or sales, if any, to pay the principal
of and interest upon the Obligation in such order and manner as Secured Party in
its discretion may deem advisable. The excess, if any, shall be paid to
Pledgor. Secured Party shall not incur any liability as a result of the sale of
the Collateral at any private sale or sales.
(c) Secured Party shall have all rights, remedies and recourses
granted in the Note and/or existing at common law or equity in connection with
the payment and performance of the Obligations (including specifically those
granted by the Texas Business and Commerce Code, and the right of offset), and
such rights and remedies (1) shall be cumulative and concurrent, (2) may be
pursued separately, successively or concurrently against Pledgor and any other
party obligated under the Obligations, or against the Collateral, at the sole
discretion of Secured Party, (3) may be exercised as often as occasion therefor
shall arise, it being agreed by Pledgor that the exercise or failure to exercise
any of same shall in no event be construed as a waiver or release thereof or of
any other right, remedy or recourse, and (4) are intended to be and shall be,
non-exclusive.
(d) Notwithstanding a foreclosure upon any of the Collateral or
exercise of any other remedy by Secured Party in connection with an Event of
Default, Pledgor shall not be subrogated thereby to any rights of Secured Party
against the Collateral or Pledgor or any property of Pledgor, nor shall Pledgor
be deemed to be the owner of any interest in any of the Obligations, nor shall
Pledgor exercise any rights or remedies with respect to Pledgor or the
Collateral or the property of Pledgor until all Obligations have been paid to
Secured Party and are fully performed and discharged.
(e) All recitals in any instrument of assignment or any other
instrument executed by Secured Party incident to the sale, transfer, assignment
or other disposition or utilization of the Collateral or any part thereof
hereunder shall be full proof of the matters stated therein and no other
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proof shall be required to establish full legal propriety of the sale or other
action taken by Secured Party or of any fact, condition or thing incident
thereto, and all prerequisites of such sale or other action shall be presumed
conclusively to have been performed or to have occurred.
5. NOTICES.
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All notices, consents and other communications hereunder shall be in
writing and shall be delivered personally (including express courier) or sent by
telecopy (and promptly confirmed by mail) or sent by prepared registered or
certified mail (return receipt requested) to the parties at the following
addresses:
Pledgor:
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HWCC-Aurora Management, Inc.
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
Secured Party:
-------------
PPI Corporation
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopier: (000) 000-0000
Notices sent as aforesaid shall be deemed given and effective upon receipt
(or the date delivery is refused). Any party (and any other person or entity
designated to receive notice) may change its address or telecopy number for
notice by delivery to all after notice to such effect in the manner set forth
herein.
6. GOVERNING LAW.
-------------
This Security Agreement shall be construed in accordance with the laws of
the State of Texas and of the United States of America, except to the extent
that the requirements of the New Jersey Casino Control Commission, the Illinois
Gaming Board, the Mississippi Gaming Commission and any other similar entity
(collectively, the "GAMING AUTHORITIES") and the New Jersey Casino Control Act,
the Illinois Riverboat Gambling Act, the Mississippi Gaming Control Act, all
rules and regulations promulgated thereunder and any and all other applicable
gaming laws, statutes, codes, ordinances, orders, judgments, decrees,
injunctions, notices, rules, regulations, restrictions and requirements
(collectively, the "GAMING LAWS") shall necessarily control, in which event the
rights and obligations of the parties hereto shall be subject and subordinate to
the requirements of the Gaming Authorities and the Gaming Laws.
7. BINDING EFFECT; MISCELLANEOUS.
-----------------------------
(a) This Security Agreement shall be binding upon and inure to the
benefit of and be enforceable by the undersigned and their respective successors
and assigns.
(b) The headings to the various paragraphs of this Security Agreement
have been inserted for reference only and shall not modify, define, limit or
expand the expressed provisions of
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this agreement. This Security Agreement may be executed in counterparts, each of
which shall be an original, and such counterparts shall together constitute but
one and the same instrument.
(c) No delay or omission on the part of Secured Party in exercising
any right hereunder shall operate as a waiver of any such right or any other
right. A waiver on any one or more occasions shall not be construed as a bar to
or waiver of any right or remedy on any future occasion.
(d) All covenants, duties and obligations of Pledgor under this
Security Agreement shall be performed in Dallas, Dallas County, Texas.
(e) The remedies given to Secured Party hereunder are cumulative and
in addition to any and all other rights which Secured Party may have against
Pledgor or any other person or firm, at law or in equity, including exoneration
and subrogation, or by virtue of any other agreement.
(f) This Security Agreement and the provisions set forth herein, shall
continue until payment in full of the Obligations.
(g) Secured Party has not assumed, and nothing contained herein shall
be declared to have imposed upon Secured Party, any of Pledgor's duties or
obligations as a partner of the Partnership.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HWCC-AURORA MANAGEMENT, INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
PPI CORPORATION
By:
-----------------------------------
Name: Xxxx X. Xxxxx
Title: President
CONSENT
The undersigned, Xxxxx Casino Corporation, being the sole limited partner
of the Partnership, hereby consents to the foregoing Security Agreement and
Pledge and to the terms and provisions thereof, and, to the extent applicable,
agrees to be bound thereby.
XXXXX CASINO CORPORATION
By:
-----------------------------------
Name: Xxxxxxx X. XxXxxxx III
Title: Vice President
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