Exhibit 10.78
9
PURCHASE AGREEMENT
This Purchase Agreement is made as of March 1, 1999, by and
between:
THE XXXXXX CORPORATION, a Louisiana corporation (the
"Corporation"), herein represented by Xxxxxxx X. Xxxxxxxx, its
duly authorized president, whose mailing address is 000 Xxxx
Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000;
XXXXXXX X. XXXXXXXX ("WW") and XXXXXXX X. XXXXXXX ("TV"),
both persons of the age of majority and domiciled in Calcasieu
Parish, Louisiana, whose mailing address is 000 Xxxx Xxxxxx, xxxx
Xxxxxxx, Xxxxxxxxx 00000 (herein collectively referred to as the
"Individuals"; while the Corporation and the Individuals are
collectively referred to as "Beeber"); and
PLAYERS LAKE XXXXXXX, LLC (successor in interest to Players
Lake Xxxxxxx, Inc.), a Louisiana limited liability company
("Players"), herein represented by Players Lake Xxxxxxx
Riverboat, Inc., its duly authorized managing member, which
appears herein by and through Xxxxxx X. Xxxxxxxx, its duly
authorized president, whose mailing address is 0000 Xxxxx Xxxxxx,
Xxxx Xxxxxxx, Xxxxxxxxx 00000.
BACKGROUND
A. The Corporation is the holder of a Payment Interest
under the terms of that certain Settlement Agreement dated as of
the 27th day of July, 1995 (the "Settlement Agreement"), by and
among Players Lake Xxxxxxx, Inc. (predecessor in interest to
Players), Beeber and certain other parties, pursuant to which
Settlement Agreement, Players agreed, among other things, to pay
to the Corporation the sum of $1.425 per Gaming Patron included
in the Coast Guard Count in any Rental Year (the "Payment
Interest"; each italicized term is used as defined in the
Settlement Agreement). As referenced in the Settlement
Agreement, the Payment Interest represents additional
consideration for the transactions contemplated by that certain
Asset Purchase Agreement dated August 16, 1995 by and between the
Corporation and Players Lake Xxxxxxx, Inc.
B. On or after July 28, 1995, with the consent of Players,
the Corporation assigned a portion of the Payment Interest,
consisting of $0.25 per Gaming Patron included in the Coast Guard
Count in any Rental Year, to Xxxx X. Xxxxxxxx ("Boellert"). Said
assignment reduced the Corporation's Payment Interest to $1.175
per Gaming Patron included in the Coast Guard Count in any Rental
Year (the "Remaining Payment Interest"). Each month, Xxxxxx
receives payment from Players (the "Monthly Payments") in an
amount determined by multiplying the Remaining Payment Interest
by the number of Gaming Patrons included in the Coast Guard Count
during the immediately preceding month.
C. On or about February 8, 1999, Players' parent
corporation, Players International, Inc. ("PII"), entered into a
merger agreement with Jackpot Enterprises, Inc. ("Jackpot")
pursuant to which, among other things, a subsidiary of Jackpot is
to merge with and into PII (the "Merger Transactions").
D. Players has offered to purchase from Xxxxxx and Xxxxxx
has agreed to sell and convey to Players the Remaining Payment
Interest (including any and all interest of the Individuals in
such Remaining Payment Interest by virtue of the Individuals'
ownership of the stock of the Corporation), all subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the
mutual promises contained herein, and other good and valuable
consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Incorporation of Background. The Background provisions
above are incorporated herein by this reference as if set forth
at length. Players and Xxxxxx hereby acknowledge the truth and
accuracy of the Background provisions.
2. Purchase and Sale of Remaining Payment Interest. On
the third business day of the month next following the receipt of
Regulatory Approval (as hereinafter defined) (the "Closing
Date"), Players shall purchase from Xxxxxx, and Xxxxxx shall sell
to Players the Remaining Payment Interest. If the Closing Date
does not occur on or before January 5, 2000, this Agreement and
the rights and obligations of the parties hereunder shall
terminate; provided, however, that if any of the parties shall
have acted in bad faith in seeking Regulatory Approval, then this
Agreement shall be deemed breached by any such party and the
other parties hereto shall have such rights and remedies as may
be available at law.
3. Purchase Price.
(a) Subject to the receipt of Regulatory Approval, as
of the date of this Agreement, and in consideration of the
purchase of the Remaining Payment Interest, Players shall pay to
the Corporation, or such of the Individuals as the Corporation
may direct, the sum of Thirteen Million Five Hundred Thousand and
No/100 Dollars ($13,500,000.00) (the "Purchase Price"), subject
to adjustment in accordance with the terms of subparagraph 3(b).
(b) From and after the date of this Agreement, (i) the
Purchase Price shall accrue interest at the rate of seven percent
(7%) per annum, and (ii) each Monthly Payment (from and after
that accrued during February of 1999) shall be applied to the
Purchase Price; first to the payment of accrued interest, and
second to the reduction of the Purchase Price. On the Closing
Date, the resultant balance of the Purchase Price (the "Adjusted
Purchase Price") plus accrued but unpaid interest shall be paid
by Players in immediately available funds. In the event that
Closing occurs on the Closing Date, Players shall have no
obligation to make any Monthly Payment or any pro rated portion
thereof to Xxxxxx for any portion of the month in which Closing
occurs.
4. Release and Non-Compete Agreement. In consideration of
the receipt of the Adjusted Purchase Price, Xxxxxx shall execute
and deliver to Players a Release and Non-Compete Agreement in
substantially the form attached hereto as Exhibit "A" (the
"Release and Non-Compete Agreement").
5. Conditions Precedent.
(a) Players' obligation to purchase the Remaining
Payment Interest shall be contingent upon the earlier to occur
of:
(i) Players' receipt of approval of the
transactions contemplated by this Agreement from the Louisiana
Gaming Control Board or any other Louisiana gaming regulatory
authorities having jurisdiction over the operations of Players
(the "Louisiana Regulators"); and
(ii) the failure of the Louisiana Regulators
to respond within sixty (60) days after Players' submission to
the Louisiana Regulators of a request for a determination of
whether the transactions contemplated by this Agreement require
the approval of the Louisiana Regulators; and
(iii) Players' receipt of a written
determination from the Louisiana Regulators to the effect that
approval of the transactions contemplated by this Agreement is
not required (the happening of any event described in
subparagraph (i), (ii) or (iii) shall be referred to as
"Regulatory Approval").
(b) Players shall diligently pursue Regulatory
Approval in conjunction with its efforts to obtain approval of
the Merger Transactions. However, if the Merger Transactions
(and consequently, the transactions contemplated by this
Agreement) have not been approved by the Louisiana Regulators on
or before September 30, 1999, then Players, with the assistance
and cooperation of the Corporation and the Individuals, as
needed, shall make independent application for Regulatory
Approval. Players shall diligently pursue all such approvals.
6. Time of Closing; Closing Deliveries. Closing of the
purchase and sale of the Remaining Payment Interest ("Closing")
shall take place on the Closing Date at a time and a place
mutually convenient to the parties. At Closing, Players shall
deliver to the Corporation, or such of the Individuals as the
Corporation may direct, the Adjusted Purchase Price plus any
accrued but unpaid interest, and Xxxxxx shall deliver to Players
the Release and Non-Compete Agreement.
7. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter contained herein.
8. Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Purchase Agreement before the undersigned, competent witnesses,
and the notaries shown below, as of the date first above written.
WITNESSES: THE XXXXXX CORPORATION
By:___________________________
Xxxxxxx X. Xxxxxxxx, President
____________________________
____________________________
Notary Public
WITNESSES:
____________________________ _____________________________
Xxxxxxx X. Xxxxxxxx
____________________________
___________________________
Notary Public
[SIGNATURES CONTINUE ON NEXT PAGE]
WITNESSES:
____________________________ __________________________________
Xxxxxxx X. Xxxxxxx
____________________________
____________________________
Notary Public
ATTEST: PLAYERS LAKE XXXXXXX, LLC
By:Players Lake Xxxxxxx Riverboat,
Inc., Managing Member
____________________________ By:__________________________
Xxxxxx X. Xxxxxxxx, President
____________________________
____________________________
Notary Public
EXHIBIT "A"
RELEASE AND NON-COMPETE AGREEMENT
This Release and Non-compete Agreement is made on the _____
day of __________, _____, by and between THE XXXXXX CORPORATION,
a Louisiana corporation (the "Corporation"), Xxxxxxx X. Xxxxxxxx
("WW") and Xxxxxxx Xxxxxxx ("TV"; WW and TV are collectively
referred to as the "Individuals"; the Corporation and the
Individuals are collectively referred to as "Beeber") and PLAYERS
LAKE XXXXXXX, LLC (successor in interest to Players Lake Xxxxxxx,
Inc.), a Louisiana limited liability company ("Players").
BACKGROUND
A. Pursuant to the terms of that certain Purchase
Agreement dated as of the first (1st) day of March, 1999, by and
between Players and Xxxxxx (the "Purchase Agreement"), Players
offered to purchase from Xxxxxx and Xxxxxx agreed to sell and
convey to Players, Xxxxxx'x "Remaining Payment Interest" (as that
term is defined in the Purchase Agreement) arising under that
certain Settlement Agreement dated as of the 27th day of July,
1995, by and among Players Lake Xxxxxxx, Inc. (predecessor in
interest to Players), Beeber and certain other parties (the
"Settlement Agreement"), all subject to the terms and conditions
of the Purchase Agreement. As referenced in the Settlement
Agreement, the Remaining Payment Interest represents additional
consideration for the transactions contemplated by that certain
Asset Purchase Agreement dated August 16, 1995 by and between the
Corporation and Players Lake Xxxxxxx, Inc.
X. Xxxxxx is entering into this Agreement with Players in
consideration of its receipt of the consideration stated in the
Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, the
mutual promises contained herein, and other good and valuable
consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Incorporation of Background. The Background provisions
above are incorporated herein by this reference as if set forth
at length. Players and Xxxxxx hereby acknowledge the truth and
accuracy of the Background provisions.
2. Acknowledgment of Receipt of Funds. Xxxxxx
acknowledges that on even date herewith, Xxxxxx received from
Players the sum of
_______________________________________________
($______________________) (the "Purchase Price"), such sum paid
to Xxxxxx by Players in full and complete satisfaction of
Players' obligations under the Purchase Agreement.
3. Release.
(a) In full and complete settlement of (i) any and all
obligations of Players to Xxxxxx (and any party claiming under
Xxxxxx) arising under or out of the Settlement Agreement and (ii)
any claims that Xxxxxx may have against Players, and for and in
consideration of the undertakings of Players described herein and
in the Purchase Agreement, including the payment of the Purchase
Price, Xxxxxx does hereby REMISE, RELEASE AND FOREVER DISCHARGE
Players, its affiliates and assigns, directors, shareholders,
partners, employees and agents, and their respective successors
and assigns, heirs, executors and administrators (hereinafter all
included within the term "Players Parties"), of and from any and
all manner of actions and causes of actions, suits, debts, claims
and demands whatsoever at law or in equity, which it ever had,
now has, or hereafter may have, or which its heirs, executors,
administrators, successors or permitted assigns hereafter may
have, by reason of any action, matter, cause or thing whatsoever
from the beginning of time to the date of execution hereof; and
particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to the
Settlement Agreement and the Purchase Agreement, including but
not limited to, any claims which have been asserted, could have
been asserted, or could be asserted now or in the future under
any federal, state or local laws, and any common law claims now
or hereafter recognized and all claims for counsel fees and
costs, and any claims relating in any way to the Settlement
Agreement or the Purchase Agreement. Notwithstanding the
foregoing, nothing contained in this Paragraph 3(a) shall be
deemed to limit the enforceability of any provision of this
Agreement.
(b) In full and complete settlement of (i) any and all
obligations of Xxxxxx to Players (and any party claiming under
Players) arising under or out of the Settlement Agreement and
(ii) any claims that Players may have against Xxxxxx, and for and
in consideration of the undertakings of Xxxxxx described herein
and in the Purchase Agreement, Players does hereby REMISE,
RELEASE AND FOREVER DISCHARGE Xxxxxx, its affiliates and assigns,
directors, shareholders, partners, employees and agents, and
their respective successors and assigns, heirs, executors and
administrators (hereinafter all included within the term "Xxxxxx
Parties"), of and from any and all manner of actions and causes
of actions, suits, debts, claims and demands whatsoever at law or
in equity, which it ever had, now has, or hereafter may have, or
which its heirs, executors, administrators, successors or
permitted assigns hereafter may have, by reason of any action,
matter, cause or thing whatsoever from the beginning of time to
the date of execution hereof; and particularly, but without
limitation of the foregoing general terms, any claims arising
from or relating in any way to the Settlement Agreement and the
Purchase Agreement, including but not limited to, any claims
which have been asserted, could have been asserted, or could be
asserted now or in the future under any federal, state or local
laws, and any common law claims now or hereafter recognized and
all claims for counsel fees and costs, and any claims relating in
any way to the Settlement Agreement or the Purchase Agreement.
Notwithstanding the foregoing, nothing contained in this
Paragraph 3(b) shall be deemed to limit the enforceability of any
provision of this Agreement.
4. Covenant Not to Xxx. Xxxxxx and Players further agree
and covenant that, except as may be necessary to enforce their
respective rights hereunder, neither will, directly or
indirectly, file, charge, claim, xxx or cause or permit to be
filed, charged or claimed, any action for damages, including
injunctive, declaratory, monetary or other relief against the
other, involving any matter occurring at any time in the past up
to the date hereof in connection with Xxxxxx or Players, as the
case may be, or involving any continuing effects of any actions
or practices which may have arisen or occurred prior to the date
hereof. Xxxxxx and Players further agree and covenant that
should either of them, directly or indirectly, file, charge,
claim, xxx or cause or permit to be filed, charged or claimed,
any action for damages, including injunctive, declaratory,
monetary or other relief, in each case as prohibited by the
preceding sentence, despite such party's agreement not to do so
hereunder, then such breaching party will repay to the other all
amounts (or the value of benefits) paid hereunder, and pay all of
the costs and expenses of the nonbreaching party (including
reasonable attorneys' fees) incurred in the defense of any such
action or undertaking.
5. Covenant Not to Compete. Xxxxxx hereby agrees that for
a term of two (2) years, it shall not, directly or indirectly
(individually or for, with or through any other person, firm,
joint venture, corporation or other entity), carry on or engage
in any casino gaming business within Calcasieu Parish, or solicit
customers of Players within Calcasieu Parish; provided, however,
that subject to the terms of this Paragraph 5, nothing contained
herein shall limit the ability of Xxxxxx to distribute, own or
operate, or to provide services to any manufacturer, distributor,
or operator of, "Video Draw Poker Devices" as that term is
defined in La.R.S. 33:4862.1(B)(15) ("VDPDs"). The phrase "carry
on or engage in any casino gaming business within Calcasieu
Parish" shall mean being or acting, in any capacity (whether
legal or beneficial), as an owner, landlord of, broker of or for,
operator, employee, agent, consultant, lobbyist, spokesperson or
representative of the interests of any person, firm, joint
venture, corporation or other entity engaged in, or preparing to
engage in, gaming operations or other casino gaming enterprises
within the geographical boundaries of Calcasieu Parish (any such
person, firm, joint venture, corporation or other entity being
referred to as a "Calcasieu Gaming Operator"). Notwithstanding
the provisions of the first sentence of this Paragraph 5, and as
a limited specific exception thereto, any party may (i) own or
operate VDPDs, so long as the subject VDPDs are not owned or
operated, directly or indirectly, with, for or on behalf of any
Calcasieu Gaming Operator, and (ii) distribute VDPDs, or provide
services to any person or entity who manufactures, distributes,
or operates VDPDs, so long as such distributee or recipient of
such services is not, now or in the future, a Calcasieu Parish
Operator. If, after the execution of this Agreement, any party
hereto is engaged in the distribution of VDPDs or the provision
of services to any person or entity who manufactures,
distributes, or operates VDPDs, and such distributee or recipient
of services becomes a Calcasieu Parish Operator, such party(ies)
shall immediately cease its(their) association with such
Calcasieu Parish Operator to the extent of such Calcasieu Parish
Operator's activities in Calcasieu Parish.
6. Indemnification.
(a) Beeber agrees to indemnify, hold harmless and
defend Players, and the Players Parties, from and against any
losses, liabilities, damages, charges, expenses, costs
(including, without limitation, attorneys' fees, court costs and
other legal costs and expenses), penalties, fines, injunctions,
suits, claims, judgments, or demands suffered by or made against
or imposed at any time upon any of the Players Parties, directly
or indirectly, arising as a result of or in connection with its
breach of any term of this Agreement, including its violation of
any of the terms and conditions of Paragraphs 4 or 5 of this
Agreement. If Players shall incur any fees, costs, expenses, or
charges (including, without limitation, attorneys' fees, court
costs and other legal costs or expenses) in order to enforce the
terms of this Agreement, Xxxxxx agrees to pay directly, or at
Players' option to reimburse Players for, such fees, costs, and
expenses no later than thirty (30) days after receiving written
notice of said fees, costs, expenses, or charges.
(b) Players agrees to indemnify, hold harmless and
defend Xxxxxx, and the Xxxxxx Parties, from and against any
losses, liabilities, damages, charges, expenses, costs
(including, without limitation, attorneys' fees, court costs and
other legal costs and expenses), penalties, fines, injunctions,
suits, claims, judgments, or demands suffered by or made against
or imposed at any time upon any of the Xxxxxx Parties, directly
or indirectly, arising as a result of or in connection with its
breach of any term of this Agreement, including its violation of
any of the terms and conditions of Paragraph 4 of this Agreement.
If Xxxxxx shall incur any fees, costs, expenses, or charges
(including, without limitation, attorneys' fees, court costs and
other legal costs or expenses) in order to enforce the terms of
this Agreement, Players agrees to pay directly, or at Xxxxxx'x
option to reimburse Xxxxxx for, such fees, costs, and expenses no
later than thirty (30) days after receiving written notice of
said fees, costs, expenses, or charges.
7. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter contained herein.
8. Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Release and Non-Compete Agreement as of the date first above
written.
WITNESSES: THE XXXXXX CORPORATION
____________________________ By:_______________________________
Xxxxxxx X. Xxxxxxxx, President
____________________________
____________________________
Notary Public
WITNESSES:
____________________________ __________________________________
Xxxxxxx X. Xxxxxxxx
____________________________
____________________________
Notary Public
WITNESSES:
____________________________ __________________________________
Xxxxxxx Xxxxxxx
____________________________
____________________________
Notary Public
[SIGNATURES CONTINUE ON NEXT PAGE]
ATTEST: PLAYERS LAKE XXXXXXX, LLC
By:Players Lake Xxxxxxx Riverboat,
Inc., Managing Member
____________________________ By:_______________________________
Xxxxxx X. Xxxxxxxx, President
____________________________
____________________________
Notary Public
