MANAGEMENT AGREEMENT
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BE IT KNOWN, that before the undersigned Notary(ies) Public, and in the presence
of the undersigned competent witnesses, personally came and appeared:
COLONIAL HOLDINGS MANAGEMENT, INC., a Virginia corporation, domiciled and with
its principal place of business in the County of New Kent and whose mailing
address is declared to be 00000 Xxxxxxxx Xxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx
00000, facsimile number: 0-000-000-0000, (the "Manager"),
JALOU L.L.C., a Louisiana limited liability company, domiciled and with its
principal place of business in the County of Cuyahoga, State of Ohio and whose
mailing address is declared to be 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
facsimile number 0-000-000-0000;
and
JALOU II INC., a Louisiana corporation, domiciled and with its principal place
of business in the County of Cuyahoga, State of Ohio and whose mailing address
is declared to be 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, facsimile number
0-000-000-0000, (JALOU L.L.C. and JALOU II INC. are collectively referred to as
"Owner");
all of whom did execute this Management Agreement ("Agreement"), this 7th day of
February, 2001 ("Effective Date").
WITNESSETH
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A. Owner now owns or is acquiring several truck stop and restaurant
facilities (hereinafter referred to as the "Facilities") located
throughout the State of Louisiana;
B. The Facilities include the operation of video draw poker gaming
devices; and
C. Owner desires to engage Manager to manage and operate the Facilities
and Manager desires to render such management services to Owner, all
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. ENGAGEMENT OF MANAGER.
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Owner does hereby engage Manager and Manager does hereby agree to
serve as the sole and exclusive management agent for Owner in connection with
the operation of the Facilities for the period of time and upon the terms and
conditions hereinafter set forth.
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2. MANAGER'S DUTIES.
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The Manager shall be responsible for the following:
A. To operate each Facility as a casino, restaurant, convenience
store and/or gas and diesel fueling station, as applicable, and
to do all things which are necessary and proper thereto.
B. To oversee all management, operations, accounting and any and all
necessary actions incident thereto for each Facility.
C. To abide by the terms of all applicable leases.
D. To prepare, at such times as are agreed to between the Owner and
the Manager, an annual operating plan and budget for Owner's
review and approval, and to operate each Facility pursuant to
such plan and budget.
E. To supervise, oversee, hire and direct, on behalf of Owner, all
on-site personnel which are required for the efficient and
effective operation of the Facilities, all of which shall be and
remain employees of the Owner.
F. To ensure compliance with all federal, state and local gaming,
liquor, health, safety and other laws, rules and regulations.
G. To perform such other acts and take such other actions as may,
from time to time, be reasonably required by the Owner.
3. MANAGEMENT, BUDGETING, COMPLIANCE AND REPAIRS AND ALTERATIONS.
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Manager shall, annually throughout the term of this Agreement, submit
to Owner for Owner's approval, by such dates as are agreed to between the Owner
and the Manager, a proposed budget for each Facility covering the next fiscal
year, which budget shall include projected gross sales and receipts from
operations and all of the anticipated expenditures for the operation,
maintenance, repair and/or alteration of the Facility, including the expected
payroll expense of all the Facility's On-Site Employees (as hereinafter defined)
and any and all capital expenses to be incurred at each Facility. Such budget
shall be in a format and contain such detail as is reasonably satisfactory to
Owner.
Manager agrees to manage, operate and maintain the Facilities, from
the funds generated by the Facilities, in an efficient and satisfactory manner.
To the best of its abilities, Manager shall, at the cost and expense of Owner,
be responsible for full compliance with all federal, state and municipal laws,
ordinances, regulations and orders relative to the operation, use, repair and
maintenance of the Facilities, and with the rules, regulations and orders of all
other applicable governmental agencies. Manager further agrees to promptly
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remedy, at the cost and expense of Owner, any violation of such laws,
ordinances, rules or regulations that come to its attention, and Manager shall
be reimbursed for any expenses incurred in doing so, unless such expenses are a
result of the negligence of the Manager or its agents or employees. Manager
agrees to immediately communicate with the Owner to ensure that arrangements may
be made promptly for remedying any violation and reimbursing Manager in the
event Manager shall have advanced its own funds in fulfilling its obligations
hereunder. Unless expressly stated otherwise, nothing contained herein shall be
interpreted as requiring the Manager to use or advance any of its own funds to
fulfill its obligations under this Agreement.
Manager shall arrange for the maintenance and repair of the Facilities
in order to keep the same in a safe, sound, attractive and operational
condition. Manager shall, from the funds collected or received by Manager with
respect to the operation of the Facilities, but within the limitations set forth
in the then current budget, pay all costs and expenses of operating the
Facilities. Notwithstanding the foregoing, without the prior approval of Owner,
Manager shall not make or incur expenditures for the maintenance, repair or
alteration of the Facilities in excess of the then current budget limitation
therefor as set forth in the current budget approved by Owner, except for
expenditures for emergency repairs to the Facilities which, in Manager's
opinion, are required for the preservation and safety of the Facilities or to
avoid the suspension of any service to or of the Facilities or to avoid danger
to life or property at the Facilities. Manager agrees, as possible, to confer
immediately with Owner regarding any such emergency expenditures.
4. CASH MANAGEMENT.
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Manager shall collect and hold in trust for the account of Owner all
sales and receipts and any and all other charges and/or income accruing to Owner
from the operation of the Facilities during the term of this Agreement. Manager
will be responsible for any billing activities with respect to the Facilities.
Manager shall utilize such collection procedures as it deems appropriate in
order to collect any past due gross sales or other charges or income from the
Facilities, including the institution of suits in Owner's name and at Owner's
expense. Manager will keep Owner advised, from time to time, of Manager's
collection activities hereunder and will promptly advise Owner if Manager is
unable to collect any such income or charges. Manager shall not, nor shall
Manager be obligated to, institute, prosecute and/or settle any judicial
proceedings with respect to such collection activities without the direction and
consent of the Owner and the reimbursement by Owner of any expenses incurred in
connection therewith (to the extent not otherwise paid to or reimbursed to
Manager incidental to such collection activity).
Wherever in this Agreement Manager is required to make a payment
out of funds generated by the Facilities which are collected or received by
Manager pursuant to this Section 4, Owner agrees that in the event the funds
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available for such payment are not sufficient to cover the same, Owner shall
promptly provide sufficient funds to cover such payment.
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Manager is authorized to pay the reasonable cost of the operating
expenses for each Facility, including payroll, utilities, insurance, advertising
and promotional expenses, but only within limitations set forth in the then
approved budget.
Notwithstanding the foregoing, in no event shall Manager be
authorized to expend more than has been budgeted in any one transaction or
series of transactions within any given calendar month without the prior written
consent of the Owner.
Should any claims, demands, suits or other legal proceedings be made
or instituted by any person against Owner arising out of any of the matters to
which this Agreement relates, Manager agrees to give Owner all reasonable
information and assistance in the defense of or other disposition thereof.
5. EMPLOYEES AND INDEPENDENT CONTRACTORS.
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Employees physically employed on-site at any single facility ("On-Site
Employees") shall be employees of the Owner and all salaries, payroll costs,
benefits, taxes and any other expenses associated with On-Site Employees shall
be paid by the Manager out of the funds generated by each respective Facility.
Notwithstanding the foregoing, all matters pertaining to the employment of
On-Site Employees are the responsibility of the Manager. Manager agrees to
fully comply with all applicable laws and regulations having to do with hiring,
workers' compensation, social security, unemployment insurance, hours of labor,
wages, employment taxes and contributions, working conditions, retention, gaming
and liquor laws and like subjects affecting employers as such.
The following: Xxx X. Xxxxxxx, Xxxx X. Xxxxx, Xxxxxxx Xxxxxxxx, and
such other individuals as shall be agreed upon between the Owner and the
Manager, shall be employees of the Manager ("Management Employees") and all
salaries, payroll costs, benefits, taxes and any other expenses associated with
Management Employees shall be solely the cost and expense of the Manager.
Manager agrees to have in its employ at all times a sufficient number of capable
employees to enable it to properly, adequately, safely and economically manage
each Facility.
Manager shall be responsible for the hiring, training and supervision
of efficient and competent personnel at the Facilities. Manager, as it deems
necessary, may, from the funds collected or received by Manager with respect to
the Facilities, but within the limitations set forth in the then current budget,
hire and pay independent contractors for the maintenance, repair and alteration
of the Facilities.
6. UTILITY SERVICES/PERMITS.
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Manager shall arrange for such contracts for electricity, gas, fuel,
water, telephone, rubbish removal and other like services, as well as all
permits and licenses necessary for economic
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operation of the Facilities as Manager shall deem advisable or shall be required
by law. Permits and licenses shall include, but are not limited to, state and
local gaming, liquor and occupational licenses. Such contracts, permits and
licenses shall be made by Manager in Owner's or its designee's name.
7. INSURANCE.
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Unless otherwise directed in writing by Owner, Manager shall,
throughout the term of this Agreement, be responsible for the placement,
maintenance and payment of all forms of insurance required by law or, in Owner's
or Manager's judgment, needed to adequately protect Owner and Manger (both of
whom shall be named as insureds thereunder) with respect to the Facilities but
in all respects as required by any lease or law. Manager shall pay the cost of
such insurance out of funds generated by the Facilities which are collected or
received by the Manger pursuant to Section 4. Manager shall keep such insurance
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in force throughout the term of this Agreement in companies satisfactory to
Owner and such insurance shall adequately insure against liability for loss,
damage or injury to property or persons which might arise out of the occupancy,
management, operation or maintenance of the Facilities.
The insurance to be obtained hereunder shall, without limitation,
include public liability and property damage insurance, fire and extended
coverage insurance and burglary and theft insurance, each with coverage amounts
of not less than $1,000,000.00 per occurrence and with the Manager to be a named
insured on all such policies. Copies of all such insurance policies shall be
furnished to Owner, and Manager shall, from time to time but at least once
annually, review such insurance coverage and make its recommendations, if any,
concerning the same to Owner. Manager shall cooperate with Owner with respect
to any claim which may arise under any such insurance policies; provided,
however, the prosecution of any such claim shall be at the sole cost and expense
of Owner. Manager agrees to notify Owner as soon as possible after it receives
notice of any loss, damage or injury, and shall take no action (such as
admission of liability) which might prejudice Owner in its defense to a claim
based on such loss, damage or injury. Manager agrees that Owner shall have the
exclusive right, at its option, to conduct the defense to any claim, demand or
suit within the limits prescribed by the policy or policies of insurance.
Notwithstanding the foregoing, any and all proceeds from any insurance policy
relating to casualty, theft and public liability losses shall be the sole and
exclusive property of the Owner.
Nothing contained in the foregoing is intended to affect the general
requirement that the properties shall be managed, operated and maintained in a
safe condition and in a proper and careful and efficient manner, as contemplated
by this Agreement.
8. BANK ACCOUNT.
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All monies collected or received by Manager with respect to any
Facility shall held in trust for the benefit of the Owner and shall be promptly
deposited into one or more separate bank accounts in a bank satisfactory to
Owner, which account shall be used solely for funds of the Facilities, and such
funds shall not be commingled with the Manager's other funds. The bank(s) shall
be informed that such funds are held in trust for Owner. Checks may be drawn on
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such account(s) only for purposes authorized under this Agreement, and under no
circumstances shall checks be drawn to the order or benefit of Manager except
for the payment of the Management Fee (as hereinafter defined) or the refund or
reimbursement of amounts authorized hereunder, or advanced by Manager for the
benefit of Owner pursuant to this Agreement.
9. BOOKS, RECORDS AND STATEMENTS.
--------------------------------
Manager agrees to keep adequate books and records in connection with
all matters contemplated by this Agreement and/or required by any lease or law
and to allow an authorized representative of Owner, at any reasonable time, to
examine the same or any correspondence pertaining to transactions arising out of
this Agreement.
Throughout the continuation of this Agreement, Manager shall furnish
Owner with the following statements concerning the operation of the Facilities
at the times and in the manner specified:
A. Not less than sixty (60) days prior to the beginning of each
calendar year of the term of this Agreement, an annual operating
budget, maintenance budget and cash flow forecast with respect to
the Facilities for the next succeeding twelve (12) month period;
and
B. Within ninety (90) days after the expiration of each twelve (12)
month period (based on a calendar year) of the term of this
Agreement, financial statements of the Facilities for such twelve
(12) month period.
10. MANAGER'S COMPENSATION.
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For the services described in this Agreement, Manager shall receive an
amount equal to (the "Management Fee"):
A. Three percent (3%) of the monthly Gross Revenue (as hereinafter
defined) of Winner's Choice Casino, Inc., payable within seven
(7) days following the end of each calendar month; plus five
percent (5%) of Winner's Choice Casino, Inc.'s quarterly EBITDA
(as hereinafter defined), payable within forty-five (45) days
following the end of each calendar quarter.
B. Three percent (3%) of the monthly Gross Revenue (as hereinafter
defined) of Houma Truck Plaza & Casino, L.L.C., payable within
seven (7) days following the end of each calendar month; plus
five percent (5%) of Houma Truck Plaza & Casino, L.L.C.'s
quarterly EBITDA (as hereinafter defined), payable within
forty-five (45) days following the end of each calendar quarter.
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C. Three percent (3%) of the monthly Gross Revenue (as hereinafter
defined) of JALOU-CASH'S, L.L.C., payable within seven (7) days
following the end of each calendar month; plus five percent (5%)
of JALOU-CASH'S,.L.L.C.'s quarterly EBITDA (as hereinafter
defined), payable within forty-five (45) days following the end
of each calendar quarter.
D. "Facility" shall mean: each of: (a) Winner's Choice Casino,
L.L.C., a Louisiana corporation; (b) Houma Truck Plaza & Casino,
L.L.C., a Louisiana limited liability company; and (c)
JALOU-CASH'S L.L.C., a Louisiana limited liability company.
E. "Gross Revenues" shall mean: all revenues collected from any
source for or as a result of the operation of each Facility,
including, but not limited to, revenues from the sale of motor
fuels, food and convenience items. No taxes, license fees,
permits or any other state, local/parish or municipality taxes or
fees shall be deducted from revenue for the purposes of
calculating "Gross Revenues" hereunder. Notwithstanding the
foregoing, Manager acknowledges and agrees that actual payment of
the Management Fee may only be made from those funds remaining
after payment of all taxes, license fees, permits or any other
state, local/parish and municipality taxes or fees.
F. "EBITDA" shall mean, with reference to a Facility, for any one
(1) calendar quarter, the sum of: (i) net income, plus (ii)
interest expenses, plus (iii) the aggregate amount of federal,
state and local taxes on or measured by income (whether or not
payable during that period), plus (iv) depreciation and
amortization. Within ninety (90) days following the end of each
fiscal year, the Manager shall cause its certified public
accountant to calculate EBITDA for the prior calendar year. Such
computation shall be made strictly in accordance with GAAP,
consistently applied, and verified by a certified public
accountant chosen by the Owner. The Owner and Manager shall
adjust, if necessary, the total Management Fee paid during the
prior calendar year based upon the foregoing calculation.
No Management Fee shall be due nor paid to Manager by Owner for any
particular Facility until and unless both Gross Revenues and EBITDA are actually
generated by such Facility.
The Management Fee shall constitute full and complete compensation for
all activities hereunder by the Manager or any Management Employee and relating
to any Facility, whether performed prior to or following the Effective Date of
this Agreement.
The parties hereto acknowledge that JALOU L.L.C. will continue to
manage the facility owned by JALOU OF ST. XXXXXX L.L.C. (the "St. Xxxxxx
Facility") and that the St. Xxxxxx Facility shall not be a part of this
Agreement.
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11. HOLD HARMLESS.
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Owner agrees to defend, with counsel selected by Owner, and save
harmless and indemnify Manager from all claims, liabilities, expenses, costs,
damages, choses in action and fines and all incidental costs, fees and expenses
(including reasonable attorneys fees) (collectively the "Liabilities") arising
out of or in connection with Manager's management of the Facilities and the
performance of Manager's duties hereunder and from injuries suffered by any
employees or other person whomsoever; provided, however, in no event shall the
Owner be obligated to indemnify nor defend the Manager for any Liabilities
arising out of the negligence or willful misconduct of the Manager, its
employees and agents.
Manager agrees to defend, with counsel selected by the Owner, and save
harmless and indemnify Owner from all Liabilities arising out of or in
connection with the performance of Manager's duties hereunder and from injuries
suffered by any employees or other person whomsoever as a result of the
negligence or willful misconduct of the Manager, its employees or agents.
12. NON-COMPETE.
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In further consideration for the Management Fee, the Manager, for
itself and its officers, directors, shareholders, partners, employees, agents,
representatives, affiliates, successors and assigns, agrees during the term of
this Agreement and for a period of two (2) years following the termination of
this Agreement within the geographical boundaries of the State of Louisiana, not
to: (a) own, manage, operate, control, be employed by, participate in or be
connected with any aspect of a video poker truck stop facility or other business
which derives any portion of its revenues from legal or illegal gaming or the
sale of motor fuels, whether as proprietor, owner, partner, stockholder,
director, officer, employee, agent, manager, consultant, joint venturer,
contractor, investor or other participant; or (b) be otherwise involved or
connected in any manner with the ownership, management, operation, promotion,
advertisement, solicitation of customers, marketing or sales efforts or control
of any enterprise that carries on or engages in a business, directly or
indirectly, in competition with the Owner or any Facility.
The foregoing restrictions are an obligation not to do an act or take
an action. Manager for itself and its officers, directors, shareholders,
partners, employees, agents, representatives, affiliates, successors and
assigns, acknowledges that the foregoing obligation not to do an act is a
material inducement for the Owner to enter into this Agreement and is a
necessary and appropriate restriction. Manager for itself and its officers,
directors, shareholders, partners, employees, agents, representatives,
affiliates, successors and assigns, acknowledges that the taking of such an
action as prohibited in this Section 12 would significantly impair or otherwise
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damage the value of the businesses of the Owner.
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If a court of competent jurisdiction determines that the restrictions
contained herein are too restrictive to be enforced, in whole or in part, this
provision shall not be invalid, and both the Owner and the Manager agree that
the court shall modify the restrictions contained herein to the extent necessary
to permit their enforcement.
In the event of a breach or threatened breach of the provisions of
this Section 12, the Owner shall be entitled to an injunction restraining the
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Manager from competing against the Owner or from rendering any services to any
person, firm, corporation, association, partnership or other entity that is
competing against the Owner. Nothing contained in this section shall be
construed as prohibiting the Owner from pursuing any other remedies available
for a breach or threatened breach of the restrictions contained in this Section
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12, including the recovery of damages from the Manager.
--
13. TERM.
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This Agreement shall become effective on the Effective Date, and
unless sooner terminated and as provided herein, shall continue in effect for a
five (5) year term.
14. TERMINATION.
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This Agreement may be terminated upon the occurrence of any of the
following circumstances:
A. By either party, upon sixty (60) days prior written notice;
B. By Owner in the event Owner sells, or otherwise disposes of, one
(1) or more of the Facilities;
C. Upon the default in the performance or observance of any term,
condition or covenant contained in this Agreement by the Manager, and such
default shall continue for a period of thirty (30) days after written notice
thereof shall have been given to the Manager specifying such default and
requesting that the same be remedied;
D. Upon written notice thereof to Manager by Owner, if Manager
shall file a voluntary petition in bankruptcy, or shall be adjudicated a
bankrupt or an insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under the present or any future bankruptcy act, or
any other present or future applicable statute or law relative to bankruptcy,
insolvency, or other relief for debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver, conservator or liquidator
of Manager (the term "acquiesce," as used herein, being deemed to include, but
not be limited to, the failure to file a petition or motion to vacate or
discharge any order, judgment or decree providing for such appointment within
the time specified by law) and the same shall remain unvacated or unstayed for
more than ninety (90) days from the date of entry thereof;
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E. Upon written notice thereof to Manager by Owner, if a court of
competent jurisdiction shall enter an order, judgment or decree approving a
petition filed against Manager seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future bankruptcy act, or any other present or future applicable
statute or law relating to bankruptcy, insolvency or other relief for debtors,
and Manager shall acquiesce (as herein above defined) in the entry of such
order, judgment or decree, or the same shall remain unvacated or unstayed for
more than ninety (90) days from the date of entry thereof, or any trustee,
receiver, conservator or liquidator of Manager shall be appointed without the
consent of or with the acquiescence of Manager and such appointment shall remain
unvacated and unstayed for more than ninety (90) days;
F. Upon written notice thereof to Manager by Owner, if Manager
shall admit in writing its inability to pay its debts as they mature; or if
Manager shall give notice to any governmental body of insolvency or pending
insolvency, or suspension or pending suspension of operation; or if Manager
shall make an assignment for the benefit of creditors to take any other similar
action for the protection or benefit of creditors; or
G. At the option of the Owner, to be exercised in its sole
discretion, upon the violation of any federal, state or local gaming or liquor
laws, rules or regulations.
Upon any termination of this Agreement, Manager shall forthwith
surrender and deliver to Owner all funds then in Manager's bank account(s)
maintained for Owner and any and all funds due Owner which might be received by
Manager after termination. Manager shall also deliver to Owner such contracts,
documents, papers and records pertaining to the Facilities or to this Agreement
as Owner may request and furnish all such information and take all such action
as Owner shall reasonably require in order to effectuate an orderly and
systematic termination of Manager's duties and activities hereunder.
Upon any termination of this Agreement, Owner shall have no obligation
to pay any Management Fee accruing after the date of termination, and Manager
does herewith waive, release and surrender any and all rights it may have at law
or in equity to any such Management Fee(s) accruing after the date of any
termination hereunder.
15. FUEL PRICING. Owner shall retain all ultimate pricing and control
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of all fuels sold at any Facility and Owner shall purchase all fuels sold at any
Facility. Manager is specifically not authorized to establish any credit
account on behalf of Owner with any fuel distributor without the prior consent
of the Owner. Owner shall establish a fuel bank account and daily fuel sales
will be directly deposited into that account by Manager.
Notwithstanding the foregoing, Owner shall permit Manager to determine,
subject to review and the ultimate authority of Owner, the price of fuel sold at
any Facility and to do all that is reasonable and necessary to achieve the fuel
sales described above. Relative to pricing, Manager agrees that all fuel sold
at any Facility shall be done so in accordance with the Video Draw Poker
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Devices Control Law in general and specifically, LSA-R.S. 27:306(A)(4)(c)(iv)
which incorporates the statutory limitations contained within the Unfair Sales
Law at LSA-R.S. 51:427 et seq.
16. COMPLIANCE WITH LAW AND REGULATIONS. Manager does hereby agree to
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abide by and comply with all laws and applicable regulations in operating any
qualified truck stop facility and with all provisions of the law and regulations
that govern video draw poker devices upon the premises of any truck stop
facility. Owner does hereby reserve and shall retain ultimate authority,
supervision and control over the entire premises of each Facility, as would be
required to satisfy any and all regulatory obligations necessary for the lawful
operation of each such Facility.
17. AGREEMENT NOT A LEASE. This Agreement shall not be construed as a
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lease of any portion of any Facility by the Manager.
18. AGREEMENT NOT TO BE CONSTRUED AS A PARTNERSHIP. This Agreement
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shall not be deemed to give rise to a partnership relationship and neither party
hereto shall have the authority to bind or obligate the other party in any
transaction without the prior express written consent of the other party.
19. ASSIGNMENT. This Agreement and the rights hereunder shall not be
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assignable by Manager. This Agreement and the rights hereunder may be assigned
by Owner.
20. NOTICES. All notices, demands or other communica-tions to be given
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or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (a) when delivered personally to
the recipient, (b) one (1) business day after being sent to the recipient by
reputable overnight courier service (charges prepaid), (c) three (3) business
days after posting in the United States mail having been mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid,
or (d) when sent via facsimile if a copy is delivered personally, couriered or
mailed to the recipient as set forth above. Such notices, demands and other
communications shall be sent to the parties at the addresses first indicated
above or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
21. AMENDMENTS AND WAIVERS. No oral modification hereof shall be
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binding upon the parties; all modifications and amendments shall be in writing
and signed by the parties. Failure by any party to insist upon or enforce any
of its respective rights, benefits or remedies shall not constitute a waiver
thereof. Any party hereto may waive the benefit of any provision or condition
for such party's benefit contained in this Agreement; provided, however, such a
waiver must be made in writing.
22. SEVERABILITY. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effec-tive and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
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23. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
24. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of
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this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement.
25. GOVERNING LAW. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Ohio, without regard to principles
of conflict of laws, and the parties expressly agree that venue, for all
purposes hereunder, shall rest exclusively with the state and federal courts of
the State of Ohio.
26. CONSTRUCTION. The parties hereto have participated jointly in the
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negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. The parties intend that each
representation, warranty and covenant contained herein shall have independent
significance. If any party has breached any representation, warranty or
covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party has not
breached shall not detract from or mitigate the fact that such party is in
breach of the first representation, warranty or covenant.
27. COMPLETE AGREEMENT. This Agreement is the complete agreement and
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understanding among the parties and supersede any prior agreements or
representations by or among the parties, written or oral.
28. ADDITIONAL INSTRUMENTS AND INFORMATION. The parties agree and
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obligate themselves to promptly execute any additional documents and instruments
and take any other actions necessary and proper for the complete and expeditious
implementation and satisfaction of the provisions and intent of this Agreement.
In addition, Manager agrees that during and subsequent to the term of this
Agreement, Manager shall have a continuing duty to supply such information and
documentation and to perform such acts as may be required by any federal, state
or local authority or the liquor and gaming laws of the State of Louisiana.
[The remainder of this page is left intentionally blank.]
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THUS DONE AND PASSED on the 1st day of February, 2001, at Richmond, State of
Virginia, the undersigned party having affixed its signature in the presence of
me, Notary, and the undersigned competent witnesses, after due reading of the
whole.
WITNESSES: MANAGER:
Colonial Holdings Management, Inc.,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxx X. Xxxxxxx
---------------------------- ----------------------------
By: /s/ Xxxxx Xxxxxxxxx Xxx X. Xxxxxxx, President
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NOTARY PUBLIC
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
---------------------------
My commission expires: 8/31/04
THUS DONE AND PASSED on the 1st day of February, 2001, at Cleveland, State of
Ohio, the undersigned party having affixed its signature in the presence of me,
Notary, and the undersigned competent witnesses, after due reading of the whole.
WITNESSES: OWNER:
JALOU L.L.C., a Louisiana limited
liability company
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxx X. Xxxxxxx
---------------------------- ----------------------------
By: /s/ Xxxxx Xxxxxxxxx Xxx X. Xxxxxxx
---------------------------
NOTARY PUBLIC
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
---------------------------
My commission expires: 8/31/04
THUS DONE AND PASSED on the 1st day of February, 2001, at Cleveland, State of
Ohio, the undersigned party having affixed its signature in the presence of me,
Notary, and the undersigned competent witnesses, after due reading of the whole.
WITNESSES: OWNER:
JALOU II INC., a Louisiana corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxx X. Xxxxxxx
--------------------------- ---------------------------
By: /s/ Xxxxx Xxxxxxxxx Xxx X. Xxxxxxx
---------------------------
NOTARY PUBLIC
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
---------------------------
My commission expires: 8/31/04
13
