EXHIBIT 2.5
Assignment and Sale Agreement
(California, Oregon & Michigan LLCs)
This ASSIGNMENT AND SALE AGREEMENT is entered into as of the 9th day of
March, 2001 by and among GTECH CORPORATION, a Delaware corporation ("GTECH"),
DREAMPORT, INC., a Delaware corporation (formerly GTECH Gaming Subsidiary 1
Corporation) ("Dreamport"), GTECH GAMING SUBSIDIARY 2 CORPORATION, a Delaware
corporation ("GTECH Sub 2"; collectively with Dreamport, the "GTECH
Subsidiaries"), FULL HOUSE RESORTS, INC., a Delaware corporation ("Full House"),
FULL HOUSE SUBSIDIARY, INC., a Delaware corporation (in its own right and as
successor-in-interest to Full House Joint Venture Subsidiary, Inc., the "Full
House Sub"; collectively with Full House Joint Venture Subsidiary, Inc., the
"Full House Subsidiaries"), and each of the Remaining LLC Subs (as defined
below) (each of the foregoing, a "Party" and collectively, the "Parties").
WITNESSETH:
WHEREAS, GTECH and Full House entered into that certain Master
Agreement for the purpose of developing certain gaming facilities and other
business opportunities, including through the formation of four separate limited
liability companies to pursue jointly certain identified development
opportunities in Oregon, Delaware, Michigan and California;
WHEREAS, the GTECH Subsidiaries and the Full House Subsidiaries entered
into that (i) certain Limited Liability Company Agreement respecting the
Delaware LLC, dated as of December 29, 1995 (the "Delaware LLC Agreement"), (ii)
that certain Limited Liability Company Agreement of the California LLC, dated as
of December 29, 1995 (the "California LLC Agreement"), (iii) that certain
Limited Liability Company Agreement of the Oregon LLC, dated as of December 29,
1995 (the "Oregon LLC Agreement") and (iv) that certain Limited Liability
Company Agreement of the Michigan LLC, dated as of December 29, 1995 (the
"Michigan LLC Agreement"), in each case as members of the respective limited
liability companies constituted thereunder;
WHEREAS, Dreamport assigned all of its membership interests in the
Delaware LLC to GTECH Sub 2 on March 7, 1997;
WHEREAS, Full House Joint Venture Subsidiary, Inc. subsequently merged
into Full House Sub which is the surviving corporation resulting from such
merger;
WHEREAS, the Parties and Xxxxxxxxxx Raceway, Inc., a Delaware
corporation ("HRI") are in discussions respecting the terms and conditions under
which the Delaware Management Agreement will be amended and GTECH Sub 2 will
withdraw from the Delaware LLC;
WHEREAS, the GTECH Subsidiaries wish to sell to the Full House Sub, and
the Full House Sub wishes to purchase from the GTECH Subsidiaries, the
Membership Interests of the GTECH Subsidiaries in the Remaining LLC Subs.
NOW THEREFORE, for valuable consideration hereinafter set forth, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
Section 1. Definitions and Interpretation.
(a) In this Agreement, the following terms shall have the meanings
indicated:
Adverse Consequences means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
Agreement shall mean this Assignment and Sale Agreement.
Amended and Restated Full House Note means the Promissory Note of Full
House in the original principal amount of $3,000,000 in favor of GTECH which
shall be executed and delivered pursuant to this Agreement and which shall
thereupon amend and restate in its entirety the Original Full House Note.
AP Accruals means, as of any specified date, the aggregate sum for all
of the Remaining LLC Subs of accounts payable owed by the Remaining LLC Subs,
which amount is, as of the date of the Most Recent Financial Statements, the
summation of the balances of Account Number 200001 for the Remaining LLC Subs
reflected in the Most Recent Financial Statements.
Business Day means any day other than a Saturday, Sunday or day on
which commercial banking institutions are authorized by law to be closed in Las
Vegas, Nevada or Providence, Rhode Island.
California LLC means Gaming Entertainment (California) L.L.C., a
Delaware limited liability company.
California LLC Agreement shall have the meaning set forth in the
Recitals.
Closing means the closing of the transactions described in this
Agreement as provided for in Sections 4 and 5.
Closing Date means March 7, 2001 or such other date as may be mutually
agreed by the Parties in writing or as may otherwise be provided for under
Section 4.
Closing Month Financial Statements means the financial statements for
the LLC Subs for the period ending March 31, 2001, calculated in accordance with
generally accepted accounting principles consistently applied and with the past
practice of calculating financial statements for the LLC Subs.
Delaware Act means the Delaware Limited Liability Company Act, 6 Del.
C.ss.18-101, et seq., as amended from time to time.
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Delaware LLC means Gaming Entertainment (Delaware), L.L.C., a Delaware
limited liability company.
Delaware LLC Agreement shall have the meaning set forth in the
Recitals.
Delaware Management Agreement means that certain Management Agreement
by and between the Delaware LLC and HRI dated January 31, 1996.
Dreamport shall have the meaning set forth in the Preamble.
Final Month shall have the meaning set forth in Section 7.
Full House means Full House Resorts, Inc., a Delaware corporation.
Full House Parties means, collectively, Full House and the Full House
Sub.
Full House Sub means Full House Subsidiary, Inc., a Delaware
corporation, in its own right and as successor-in-interest to Full House Joint
Venture Subsidiary, Inc.
Full House Subsidiaries means, together, Full House Sub and Full House
Joint Venture Subsidiary Inc.
GTECH means GTECH Corporation, a Delaware corporation.
GTECH Net Receivables means, as of any specified date, the aggregate
amount calculated in accordance with the following formula:
GTECH Net Receivables = GTECH Payables + LLC Cash + LLC Full House
Receivables - GTECH Payables - AP Accruals 2
GTECH Parties means, collectively, GTECH, Dreamport and GTECH Sub 2.
GTECH Payables means the aggregate amount for all of the Remaining LLC
Subs of the outstanding principal amount of and the accrued but unpaid interest
on loans by GTECH, Dreamport, GTECH Sub 2 and other GTECH affiliates to
(including amounts paid on behalf of) the Remaining LLC Subs and/or the Full
House Subsidiaries; it being agreed that the amount of the GTECH Payables as of
the date of the Most Recent Financial Statements shall be the summation of the
balances of the Remaining LLC Subs Account 200200, as reflected in the Most
Recent LLC Financial Statements for the Remaining LLC Subs.
GTECH Sub 2 means GTECH Gaming Subsidiary 2 Corporation, a Delaware
corporation.
GTECH Subsidiaries means, together, Dreamport, Inc. and GTECH Gaming
Subsidiary 2 Corporation.
HRI means Xxxxxxxxxx Raceway, Inc., a Delaware corporation.
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LLC Agreements means, collectively, the California LLC Agreement, the
Delaware LLC Agreement, the Michigan LLC Agreement and the Oregon LLC Agreement.
LLC Cash means the aggregate sum, for all of the Remaining LLC Subs of
the cash of the Remaining LLC Subs; it being agreed that the amount of the LLC
Cash, as of the date of the Most Recent Financial Statements, shall be the
summation of the balances of the Remaining LLC Subs' Account 100040, as
reflected in the Most Recent LLC Financial Statements for the Remaining LLC
Subs.
LLC Full House Receivables means the aggregate sum for all of the
Remaining LLC Subs of amounts owed by Full House and the Full House Subsidiaries
to the Remaining LLC Subs; it being agreed that the amount of the LLC Full House
Receivables, as of the date of the Most Recent Financial Statements, shall be
the summation of the balances of the Remaining LLC Subs' Account 200201, as
reflected in the Most Recent LLC Financial Statements for the Remaining LLC
Subs.
LLC Management Fee Receivables means the aggregate sum for all of the
Remaining LLC Subs, of receivables respecting management fees, it being agreed
that the amount of the LLC Management Fee Receivables, as of the Closing Date,
shall be the summation of the balances of the Remaining LLC Subs' Account
120043, as reflected in the Most Recent LLC Financial Statements for all of the
Remaining LLC Subs, plus a Pro Rata Portion of receivables respecting management
fees for the calendar month in which the Closing occurs, as reflected on the
Closing Month Financial Statements.
LLC Subs means, collectively, the California LLC, the Delaware LLC, the
Michigan LLC and the Oregon LLC.
Master Agreement means that certain Master Agreement dated December 29,
1995 by and between GTECH and Full House.
Membership Interest of a Person means, with respect to each LLC Sub,
all of such Person's membership interest in, and share of the allocations of,
such LLC Sub and such Person's rights to receive distributions of such LLC Sub's
assets in accordance with the provisions of the related LLC Agreement and the
Delaware Act.
Michigan LLC means Gaming Entertainment (Michigan) LLC, a Delaware
limited liability company.
Michigan LLC Agreement shall have the meaning set forth in the
Recitals.
Most Recent LLC Financial Statements means the financial statements for
the LLC Subs for the period ending February 28, 2001, calculated in accordance
with generally accepted accounting principles applied consistently and with the
past practice of calculating financial statements for the LLC Subs.
Note means the Promissory Note which shall be dated as of the Closing
Date and which shall otherwise be in the form attached as Exhibit A.
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Oregon LLC means Gaming Entertainment, L.L.C., a Delaware limited
liability company.
Oregon LLC Agreement shall have the meaning set forth in the Recitals.
Original Full House Note means that certain Convertible Note, dated
January 26, 1996, in the original principal amount of $3,000,000 in favor of
GTECH.
Party and Parties shall have the respective meanings set forth in the
Preamble.
Paying Party shall have the meaning set forth in Section 13.
Person means any individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization and any government, governmental department or agency or political
subdivision thereof.
Pro Rata Portion means such portion of management fees for March 2001,
the calendar month in which the Closing occurs, obtained by multiplying 100% of
such management fees by a fraction, the numeration of which is the date in March
2001 on which the Closing occurs and the denominator of which is "31".
Purchase Price shall have the meaning set forth in Section 3.
Reimbursed Party shall have the meaning set forth in Section 13.
Remaining LLC Subs means, collectively, the California LLC, the
Michigan LLC and the Oregon LLC.
Sum Recovered shall have the meaning set forth in Section 13.
Tomac Litigation shall have the meaning provided in Section 6(a)(iv).
Tomac Litigation Expenses shall have the meaning provided in Section
10(d).
(b) In this Agreement, a reference to:
(i) a statutory provision includes a reference to:
(a) the statutory provisions as modified or
re-enacted or both from time to time
(whether before or after the date of this
Agreement); and
(b) any subordinate legislation made under the
statutory provision (whether before
or after the date of this Agreement);
(ii) persons includes a reference to any body corporate,
unincorporated association or partnership
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(iii) a reference to a Section, party, Recital, Preamble,
Schedule, or Exhibit unless the contrary is
indicated, is a reference to a clause of or a party
or schedule to this Agreement.
(c) The Schedules and Exhibits form part of this Agreement and shall
have the same force and effect as if set out in the body of this Agreement and
references to this Agreement include the Schedules and Exhibits.
(d) Except to the extent the context requires otherwise, any reference
in this Agreement to this Agreement, or any other agreement or document is a
reference to this Agreement, or as the case may be, the relevant agreement or
documents as from time to time amended, supplemented or novated and includes a
reference to any document which amends, supplements or novates this Agreement
or, as the case may be, the relevant agreement or document.
(e) The headings of this Agreement shall not affect the interpretation
of this Agreement.
Section 2. Sale and Purchase.
Subject to the terms of this Agreement, each of the GTECH Subsidiaries
shall sell to Full House Sub, and Full House Sub shall purchase from each of the
GTECH Subsidiaries, the Membership Interests of each of the GTECH Subsidiaries
in each of the Remaining LLC Subs at the Closing.
Section 3. Purchase Price.
At the Closing, Full House shall pay to the GTECH Subsidiaries, in
immediately available cash funds and by wire transfer as provided in Section 8,
the sum of One Million Eight Hundred Thousand Dollars ($1,800,000) (the
"Purchase Price").
Section 4. The Closing.
(a) Subject to the terms and conditions of this Agreement, the Closing
shall take place at the offices of Xxxxxxx & Xxxxxx, 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000 on the Closing Date.
(b) At the Closing, the Parties shall consummate the transactions, and
shall otherwise satisfy their respective obligations, described in Section 5.
(c) If in any respect material to Full House Sub or to a GTECH
Subsidiary, as the case may be (for purposes of this subsection, the "First
Party"), the other Party or any other Party hereunder fails to consummate the
transactions or to otherwise satisfy any of its obligations described in Section
5, the First Party will not be obliged to consummate the transactions or to
otherwise fulfill its obligations described in Section 5, and may immediately by
written notice:
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(i) defer the Closing Date to a later date, but in no
event later than March 30, 2001, (such that the date
nominated for the Closing Date in that notice shall
become the Closing Date for the purpose of this
Agreement);
(ii) terminate this Agreement without prejudice to its
rights and remedies under this Agreement; or
(iii) waive all or any of the unsatisfied obligations at
its discretion.
Section 5. The Closing Transactions.
(a) Subject to the terms and conditions of this Agreement, at the
Closing and on the Closing Date:
(i) Dreamport and GTECH Sub 2 each hereby agrees to sell,
convey and transfer to Full House Sub, and Full House
Sub hereby agrees to purchase, all of Dreamport's and
all of GTECH Sub 2's respective Membership Interests
in the California LLC;
(ii) Dreamport and GTECH Sub 2 each hereby agrees to sell,
convey and transfer to Full House Sub, and Full House
Sub hereby agrees to purchase, all of Dreamport's and
all of GTECH Sub 2's respective Membership Interests
in the Michigan LLC;
(iii) Dreamport and GTECH Sub 2 each hereby agrees to sell,
convey and transfer to Full House Sub, and Full House
Sub hereby agrees to purchase, all of Dreamport's and
GTECH Sub 2's respective Membership Interests in the
Oregon LLC;
(iv) GTECH hereby agrees to extend the maturity date of
the $3,000,000 principal amount of indebtedness
outstanding under the Original Full House Note, from
January 25, 2001 to January 25, 2002, such extension
to be effected by the cancellation by GTECH of the
Original Full House Note and the execution and
delivery by Full House of the Amended and Restated
Full House Note (which shall amend and restate the
Original Full House Note);
(v) Full House hereby agrees to pay GTECH the Purchase
Price; and
(vi) The Parties shall otherwise perform their respective
obligations as set out in Schedule 1 (such
obligations, collectively with all other Closing
obligations described herein, the "Closing
Obligations").
(b) The obligations of each of the Parties described in this Section 5
shall be conditioned upon, and subject to, the prior or concurrent satisfaction
by each of the other Parties of their respective obligations described in this
Section 5, all of which shall be deemed to be satisfied simultaneously.
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Section 6. Conditions Precedent.
(a) The obligations of the Parties to perform their respective
Closing Obligations hereunder are subject to:
(i) the Parties' obtaining any third party consent set
forth on Schedule 2 and such other third party
consents (if any) as are required to close under this
Agreement and to otherwise consummate the
transactions provided for hereunder (it being agreed
that the Parties shall use good faith, commercially
reasonable efforts to obtain all such consents prior
to the Closing Date);
(ii) in the case of GTECH, each of the representations and
warranties made by the Full House Parties (described
in Section 10), as of the date hereof are true,
complete and correct in all material respects as of
the Closing Date and the Full House Parties shall
have performed and complied with all of their
covenants hereunder in all material respects through
the Closing Date;
(iii) in the case of each of the Full House Parties, each
of the representations and warranties made by the
GTECH Parties (described in Section 11), as of the
date hereof, are true, complete and correct in all
material respects as of the Closing Date and each of
the GTECH Parties shall have performed and complied
with all of their covenants hereunder in all material
respects through the Closing Date; and
(iv) except with respect to that certain litigation
captioned Taxpayers of Michigan Against Casinos, et.
al. v. The State of Michigan (the "Tomac
Litigation"), no action, suit, or proceeding shall be
pending before any court or quasi-judicial or
administrative agency of any federal, state, local,
or foreign jurisdiction wherein an unfavorable
injunction, judgment, order, decree, ruling or charge
would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, (C)
affect adversely the right of Full House Sub to own
the Membership Interests of the GTECH Subsidiaries,
as contemplated hereunder, or (D) affect adversely
the right of any Remaining LLC Sub to own its assets
and to operate its business (and no such injunction,
judgment, order, decree, ruling, or charge shall be
in effect).
(b) Each of the Parties may waive any condition to the performance of
its Closing Obligations if it executes a writing so stating at or prior to the
Closing Date.
Section 7. The Final Adjustments.
(a) Not later than twenty (20) days after the Closing Date, Full House
and Full House Sub shall cause to be prepared and shall deliver to GTECH the
Most Recent LLC Financial Statements and not later than forty-five (45) days
after the Closing Date, Full House and Full
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Houses Sub shall cause to be prepared and shall deliver to GTECH the Closing
Month Financial Statements. Such financial statements shall be prepared in
accordance with generally accepted accounting principles, consistently applied,
and with the past practice of calculating financial statements for the LLC Subs,
and Full House and Full House Sub agree that GTECH shall be supplied copies of
such records of the Remaining LLC Subs as may be necessary or appropriate to
confirm the accuracy of such financial statements, as GTECH may reasonable
request.
(b) Not later than thirty (30) days after the Closing Date, Full House
and Full House Sub shall cause the Remaining LLC Subs to pay to the GTECH
Subsidiaries, and the Remaining LLC Subs shall pay to the GTECH Subsidiaries, an
amount equal to the sum of GTECH Net Receivables, as calculated in accordance
with the Most Recent LLC Financial Statements.
(c) Not later than three (3) days after receiving any payment
respecting a LLC Management Fee Receivable, Full House and Full House Sub shall
cause the Remaining LLC Subs receiving such payment to pay to the GTECH
Subsidiaries, and the Remaining LLC Subs receiving such payment shall pay to the
GTECH Subsidiaries, an amount equal to fifty percent (50%) of the amount of such
payment received in respect of such LLC Management Fee Receivable.
(d) Full House, Full House Sub and the Remaining LLC Subs each agree
that an accounting detailing the calculation of any payment made pursuant to
this Section 7 shall accompany such payment and that the GTECH Subsidiaries
shall be provided written notice of any payment received by a Remaining LLC Sub
respecting an LLC Management Fee Receivable not later than two Business Days
after such payment is received.
Section 8. Payments.
All amounts payable to the GTECH Subsidiaries under this Agreement shall be paid
in by wire transfer (or to such other account as GTECH shall notify to the other
Parties in writing not less than one Business Day prior to the Closing Date or
other payment date) in immediately available funds:
Beneficiary Name: c/o GTECH Corporation
Beneficiary Account: 00000000
Bank Name: FleetBoston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
ABA Number: 000000000
Section 9. Other Agreements.
(a) The Full House Parties and the GTECH Parties hereby agree to amend
Article XIV of each of the California LLC Agreement, the Michigan Agreement and
the Oregon Agreement, effective immediately, and each such Article is hereby
amended, such that the assignment of the Membership Interests contemplated
hereunder shall be effective as of one hour
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before the close of business on the Closing Date (rather than, as Article XIV
would otherwise provide, on the last day of the calendar month in which this
Agreement is executed).
(b) The Parties acknowledge and agree that from the date hereof through
the Closing Date, the business of each of the Remaining LLC Subs shall be
conducted in the ordinary course unaffected (except as expressly provided by
this Agreement to the contrary) by this Agreement or the transactions provided
for herein. Without limiting the foregoing, the Full House Parties and each of
the Remaining LLC Subs each acknowledges and agrees that through the Closing
Date the GTECH Subsidiaries shall have all right, title and interest in its
respective share of: (i) any income, profit, losses, retained earnings, cash
flow, undistributed dividends and other distributions of the Remaining LLC Subs,
and (ii) any and all limited liability company benefits and entitlements,
including without limitation, the right to vote, consent and otherwise
participate in the business of the Remaining LLC Subs, and shall otherwise be
involved in decisions with respect thereto, as are currently provided to them
in, respectively, the California LLC Agreement, the Michigan LLC Agreement, and
the Oregon LLC Agreement or otherwise under applicable law. Each of the Full
House Parties and the Remaining LLC Subs acknowledges and agrees to cause to be
paid to the GTECH Subsidiaries its respective share of all amounts received by
the GTECH Subsidiaries from and after the date hereof through the Closing Date
which accrue to either of the GTECH Subsidiaries, during the time that it
remains a member of any of the Remaining LLC Subs.
(c) In accordance with Section 14.1 of each of the California LLC
Agreement, Michigan LLC Agreement and the Oregon LLC Agreement (as amended
pursuant to subsection 9(a) above), immediately prior to the Closing, each of
the GTECH Subsidiaries shall cease to be a member of the Remaining LLC Subs.
Each of GTECH and the GTECH Subsidiaries acknowledges and agrees that, pursuant
to applicable law, it shall, as of the close of business on the Closing Date,
except as regards to payments provided in Section 7 hereof, no longer have any
right, title or interest in and to any income, profits, losses, retained
earnings, cash flow, undistributed dividends, or other distributions or other
assets of any of the Remaining LLC Subs and any and all other limited liability
company benefits and entitlements, including without limitation, any right to
vote, consent or otherwise participate in the business and affairs of any of the
LLC Subs or otherwise be involved in any decisions with respect thereto. The
parties hereby acknowledge that the business of each of the Remaining LLC Subs
shall continue without dissolution under the terms of, respectively, the
California LLC Agreement, the Michigan LLC Agreement, and the Oregon LLC
Agreement.
(d) Each of the LLC Subs shall compute items of distributive income and
loss for the fiscal year commencing January 1, 2001 in accordance with the
interim closing method, pursuant to which the fiscal year of the LLC Subs shall
be deemed to have closed on the Closing Date.
(e) Full House and GTECH hereby agree that with effect from and after
Closing:
(i) the indemnification obligations assumed by GTECH by letter to
Full House dated January 28, 1996, with respect in part to
obligations retained by Full House under agreements assigned
by Full House to certain LLC Subs, shall be terminated, and
such letter agreement shall be of no further force and effect;
and
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(ii) the Master Agreement shall be terminated and of no further
force and effect.
(f) GTECH waives, as of the Closing but with effect from and after
January 25, 2001, any and all defaults by Full House under the Original Full
House Note.
(g) Each of the Full House Parties hereby:
(i) irrevocably consents to and approves, for all
purposes, including for all purposes under the
Delaware Act and the Delaware LLC Agreement, and
agrees to cause the Delaware LLC to enter into, such
amendments as the GTECH Parties may direct to the
Delaware Management Agreement and the Delaware LLC
Agreement providing for the reduction of management
fees payable by HRI to the Delaware LLC by 50% and
the simultaneous withdrawal by GTECH Sub 2 as a
Member in the Delaware LLC;
(ii) in the event the transaction described in Section
9(g)(i) has not closed on or before April 30, 2001,
irrevocably consents, approves and agrees for all
purposes, including, without limitation, for all
purposes under the Delaware Act and the Delaware LLC
Agreement, to the sale and assignment of the
Membership Interest of GTECH Sub 2 in the Delaware
LLC to any Reasonable Assignee (as defined below) for
a purchase price not to exceed $12,000,000 and to the
inclusion of such Reasonable Assignee as a Substitute
Member (as such term is defined in the Delaware LLC
Agreement); and
(iii) agrees to execute and deliver from time to time,
promptly after any reasonable request therefor by
GTECH or GTECH Sub 2, any and all instruments,
agreements and documents, and shall take such other
actions as GTECH or GTECH Sub 2 may, from
time-to-time, reasonably deem necessary or desirable
to accomplish the intent of Section 9(g)(i) and
9(g)(ii).
(h) For purposes of this Section 9(g), a "Reasonable Assignee" shall
include Delaware North, or any other assignee that is able to obtain all
necessary approvals from the Delaware State Lottery and any other applicable
regulatory authority.
Section 10. Representations and Warranties of Full House and the Full House
Sub.
(a) Each of Full House and the Full House Sub jointly and severally
represents and warrants to each of the Remaining LLC Subs and to each of the
GTECH Parties that (i) it is a corporation duly organized, validly existing, and
in good standing under the laws of the state of its incorporation, (ii) it has
full corporate power and authority to execute and deliver into this Agreement,
the Amended and Restated Full House Note, and each other agreement or other
document to be delivered by it with respect to the transactions contemplated
hereby (each, a "Full House Transaction Document"), and to consummate the
transactions contemplated hereby and thereby;
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(iii) the execution, delivery and performance of each Full House Transaction
Document has each been duly authorized by all necessary corporate action; (iv)
each Full House Transaction Document has been duly and validly executed and
delivered, and each constitutes the valid and binding obligation of Full House
and the Full House Sub (as the case may be), enforceable against such Parties in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally and
subject to general principles of equity; (v) neither the execution and delivery,
nor the performance under, any Full House Transaction Document by Full House or
Full House Sub (as the case may be) will violate (A) any provision of such
Party's charter or by-laws, (B) any law, regulation, ruling or other restriction
of any governmental agency or court to which either such Party is subject or (C)
any contract or other arrangement to which either such Party is party or to
which any of its assets is subject; and (vi) no consent, approval, order or
filing with any governmental authority or any other Person is required in
connection with the execution, delivery and performance of any Full House
Transaction Document by Full House and the Full House Sub and the consummation
of the transactions by Full House and the Full House Sub hereunder.
(b) Each of Full House and the Full House Sub represents and warrants
that Full House Sub owns its Membership Interests in each of the Remaining LLC
Subs free and clear of all assignments, collateral assignments, liens,
encumbrances, security interests, pledges, claims and restrictions of any kind
whatsoever, except for any such restrictions imposed by, respectively, the
California LLC Agreement, the Michigan LLC Agreement and the Oregon LLC
Agreement, including without limitation claims of any third parties.
(c) Each of Full House and the Full House Sub jointly and severally
represents and warrants that it will not assign, distribute or otherwise dispose
of the Membership Interests to be acquired by Full House Sub hereunder in any
transaction which would have the effect of requiring GTECH or any GTECH
Subsidiary to have filed a registration statement under the Securities Act of
1933 or any other applicable securities law with respect to the transactions
described herein.
(d) Each of Full House and the Full House Sub represents and warrants
that it is unaware of any liability of any of the Remaining LLC Subs which is
required under generally accepted accounting principles to be reflected on the
financial statements of the Remaining LLC Subs other than: (i) those which are
in fact reflected on such financial statements; and (ii) unpaid legal expenses
respecting the Tomac Litigation through the Closing Date (which expenses total,
with respect to work performed through September 2000, approximately $222,000)
(the "Tomac Litigation Expenses").
(e) Except as otherwise disclosed in writing by Full House and the Full
House to the other Parties prior to the Closing Date, each of Full House and the
Full House Sub is deemed to repeat each of the foregoing representations and
warranties as of the Closing Date.
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Section 11. Representations and Warranties of the GTECH Parties.
(a) Each of GTECH and the GTECH Subsidiaries jointly and severally
represents and warrants to Remaining LLC Subs and to each of the Full House
Parties that (i) it is a corporation duly organized, validly existing, and in
good standing under the laws of Delaware; (ii) it has full corporate power and
authority to execute and deliver this Agreement and each other agreement or
other document to be delivered by GTECH and/or the GTECH Subsidiaries with
respect to the transactions contemplated hereby (each, a "GTECH Transaction
Document") and to consummate the transactions contemplated hereby; (iii) the
execution, delivery and performance of each GTECH Transaction Document has been
duly authorized by all necessary corporate action; (iv) each GTECH Transaction
Document has been duly and validly executed and delivered, and constitutes the
valid and binding obligation of GTECH and such GTECH Subsidiary (as the case may
be), enforceable against such Parties in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of equity; (v) no
consent, approval, order or filing with any governmental authority or any other
Person is required in connection with the execution, delivery and performance of
any GTECH Transaction Document by GTECH and the GTECH Subsidiaries and the
consummation of the transactions by GTECH and the GTECH Subsidiaries hereunder.
(b) Each of GTECH and the GTECH Subsidiaries represents and warrants
that each of the GTECH Subsidiaries owns its Membership Interest in the each of
the Remaining LLC Subs free and clear of all assignments, collateral
assignments, liens, encumbrances, security interests, pledges, claims and
restrictions of any kind whatsoever, except for any such restrictions imposed
by, respectively, the California LLC Agreement, the Michigan LLC Agreement, and
the Oregon LLC Agreement, including without limitation claims of any third
parties.
(c) Each of GTECH and the GTECH Subsidiaries represents and warrants
that it is unaware of any liability of any of the Remaining LLC Subs which is
required under generally accepted accounting principles to be reflected on the
financial statements of the Remaining LLC Subs other than: (i) those which are
in fact reflected on such financial statements; and (ii) the Tomac Litigation
Expenses.
(d) Except as otherwise disclosed in writing by GTECH and the GTECH
Subsidiaries to the other Parties prior to the other Closing Date, each of GTECH
and the GTECH Subsidiaries is deemed to repeat each of the foregoing
representations and warranties as of the Closing Date.
Section 12. Remedies for Breaches of This Agreement.
(a) All of the representations and warranties of the Parties above
shall survive the Closing hereunder and continue in full force and effect for a
period of 180 days thereafter.
(b) Subject to the limitations and other terms and conditions set forth
in Section 13 below, each Party agrees to indemnify each other Party from and
against the entirety of any Adverse Consequences such other Party may suffer
resulting from any breach of any representation, warranty or covenant of such
Party hereunder.
13
Section 13. Limitation of Liability and Conduct of Claims.
(a) No claim may be made for breach of any representation or warranty
or covenant of this Agreement except in accordance with, and subject to the
limitations of, this Section 13.
(b) No Party shall be liable for special, indirect or consequential
losses or expenses suffered by any other Party howsoever arising including
without limitation loss of anticipated profits, goodwill, reputation, business
receipts or contracts, or any losses whatsoever resulting from loss of use, data
or profits, or any damages suffered by such other Party as a result of any such
special, indirect or consequential losses or expenses, arising out of or in
connection with this Agreement whether in an action of contract, tort (including
negligence) or otherwise.
(c) No Party shall be liable to another Party hereunder in respect of a
claim for breach of any representation, warranty or covenant if, and to the
extent, such other Party has received from another person (including, without
limitation, an insurer) an amount which is referable to the matter giving rise
to such claim.
(d) If a Party (the "Paying Party") pays another party (the "Reimbursed
Party") an amount in respect of any claim by the Reimbursed Party in respect of
this Agreement and the Reimbursed Party subsequently recovers from another
person an amount which is referable to the matter giving rise to such claim, the
Reimbursed Party shall immediately notify the Paying Party and:
(i) If the Paying Party has already paid an amount in
satisfaction of such a claim and the amount paid by
the Paying Party in respect of such claim is more
than the Sum Recovered, the Reimbursed Party shall
immediately pay to the Paying Party the Sum
Recovered;
(ii) If the Paying Party has already paid an amount in
satisfaction of such a claim and the amount paid by
the Paying Party in respect of such claim is less
than or equal to the Sum Recovered, the Reimbursed
Party shall immediately pay to the Paying Party an
amount equal to the amount paid by the Paying Party.
(iii) If the Paying Party has not already paid an amount in
satisfaction of such a claim, the amount of the claim
for which the Paying party would have been liable
shall be reduced by and to the extent of the Sum
Recovered.
For the purposes of this subsection, the term "Sum Recovered" means an
amount equal to the total of the amount recovered from the other person
plus any interest in respect of the amount recovered from the person
less any tax computed by reference to the amount recovered from the
person payable by the Reimbursed Party and less all reasonable costs
incurred by the Reimbursed Party in recovering the amount from the
person.
(e) If a Party makes a claim or intends to make a claim under the
representations and warranties or covenants of this Agreement against another
Party which arises as a result of a claim against the first Party by a third
party, the first Party shall notify such other Party and consult on a regular
basis with such other Party with respect to the matter (including as to
14
selection for legal advisers), take such action as such other Party may
reasonably request in relation to such third party claim, and shall not admit
liability to any third party in respect of such claim without such other Party's
consent, which shall not be unreasonably withheld or delayed.
Section 14. Releases.
(a) Except as provided in subsection 14(c) below, Full House, Full
House Sub, and each of the Remaining LLC Subs (collectively, for purposes of
this subsection, the "Full House Releasing Parties") each hereby releases and
forever discharges each of the GTECH Parties and each of their respective
present and former directors, officers, employees, agents, subsidiaries,
shareholders, successors and assigns (for purposes of this subsection, the
"GTECH Released Parties") from any and all liabilities, causes of action, debts,
claims and demands (including without limitation claims and demands for monetary
payment) both in law and in equity, known or unknown, fixed or contingent, which
any, Full House Releasing Party may have or may claim to have including, without
limitation, any and all liabilities, causes of action, debts, claims and demands
arising under or with respect to the Master Agreement, (to the extent such
applies to the Remaining LLC Subs), the California LLC Agreement, the Michigan
LLC Agreement, the Oregon LLC Agreement and any agreement, understanding or
arrangement entered into by or act or omission of, any of the foregoing and each
Full House Releasing Party hereby covenants not to file a lawsuit or charge to
assert any such claim. This release includes but is not limited to claims of
breach of contract or tort arising prior to the Closing.
(b) Except as provided in Section 14(c) below, GTECH, each of the GTECH
Subsidiaries, and each of the Remaining LLC Subs (collectively for purposes of
this subsection, the "GTECH Parties") hereby releases and forever discharges
Full House, and Full House Sub and each of their respective present and former
directors, officers, employees, agents, subsidiaries, shareholders, successors
and assigns (for purposes of this subsection, the "FHR Released Parties") from
any and all liabilities, causes of action, debts, claims and demands (including
without limitation claims and demands for monetary payment) both in law and in
equity, known or unknown, fixed or contingent, which any GTECH Releasing Party
may have or may claim to have, and each GTECH Releasing Party hereby covenants
not file a lawsuit or charge to assert any such claim. This release includes but
is not limited to claims of breach of contract or tort arising prior to the
Closing.
(c) The releases set forth above shall not apply to: (i) breaches of or
amounts due under this Agreement or under the Amended and Restated Full House
Note, or (ii) liabilities with respect to the Delaware LLC, the Delaware LLC
Agreement, or the Delaware Management Agreement.
Section 15. Termination.
(a) The Full House Parties and the GTECH Parties may terminate this
Agreement as provided below:
(i) Full House Parties and the GTECH Parties may
terminate this Agreement by mutual written consent
at any time prior to the Closing;
15
(ii) Full House Parties or any of the GTECH Parties may
terminate this Agreement by giving written notice to
the other Parties at any time prior to the Closing if
the Closing shall not have occurred on or before
March 30, 2001, by reason of the failure of any
condition precedent to such terminating Party or
Parties' Closing Obligations as set forth in Section
6(a) hereof (except if the failure results from such
terminating Party itself breaching this Agreement).
(b) If any Party terminates this Agreement pursuant to Section 15(a)
above, all rights and obligations of the Parties hereunder shall terminate
without any liability of any Party to any other Party (except for any liability
of any Party then in breach).
Section 16. Miscellaneous.
(a) Each of the Parties acknowledges and agrees that, except as
expressly set forth herein, it is not relying upon any representation or
warranty of any other Party, with respect to (i) the terms and provisions of
this Agreement, or otherwise with respect to any document or matter referred to
herein, (ii) the financial condition or status of any Remaining LLC Sub or the
value of the interest or the present or future business or financial prospects
of any Remaining LLC Sub, or (iii) the value of the interest or the advisability
or propriety of executing this Agreement or any benefits to be obtained
therefrom.
(b) All notices provided for in this Agreement shall be in writing,
duly signed by the Party giving the notice, shall be deemed to be given when
received, and shall be delivered, telecopied or mailed by registered or
certified mail or by recognized overnight delivery service as provided on
Schedule 3 hereto.
(c) No Party shall make any formal press release or other public
announcement in connection with this Agreement, or any of the transactions
contemplated by this Agreement, except: (i) an announcement in a form agreed by
the Parties, or (ii) any announcement by any Party if required by any applicable
law or stock exchange regulation to be made by such Party after consultation
with the other Parties hereto.
(d) The Parties acknowledge and agree that all Parties have been
represented by counsel and that the rule of construction that the document shall
be construed against the party drafting the same shall not apply.
(e) All representations, warranties, covenants and agreements to the
Parties contained in this Agreement, or any instrument provided for in it, will
survive the Closing of the transactions contemplated herein and the Closing
Date, as provided above.
(f) No Party may assign any right or obligation under this Agreement
without obtaining the prior written consent of the other Parties hereto. This
Agreement will be binding on and inure to the benefit of the Parties hereto and
their respective heirs, legal representatives, and permitted successors and/or
assigns.
16
(g) This Agreement and the performance hereof will be construed in
accordance with and governed by the laws of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to principles of
conflict of laws.
(h) This Agreement constitutes the entire Agreement between the Parties
pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements relating to the subject matter hereof. No supplement,
modification or amendment of this Agreement will be binding unless executed in
writing by all of the Parties.
(i) Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the offending term or provision in any other situations or
in any other jurisdiction.
(j) Each of the Parties will bear its own costs and expenses (including
legal fees and expenses) incurred in connection with the transactions
contemplated hereby.
(k) This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
(l) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto by their respective duly authorized officers, all as of the date first
above written.
GTECH CORPORATION FULL HOUSE RESORTS, INC.
By: By:
-------------------------------- -------------------------------------
Name: Name:
Title: Title:
DREAMPORT, INC. FULL HOUSE SUBSIDIARY, INC.
By: By:
-------------------------------- -------------------------------------
Name: Name:
Title: Title:
GTECH GAMING SUBSIDIARY 2 CORPORATION
By:
--------------------------------
Name:
Title:
18
GAMING ENTERTAINMENT, LLC
By its Members
Full House Subsidiary, Inc.
By:
--------------------------------
Name:
Title:
Dreamport, Inc.
By:
--------------------------------
Name:
Title:
GTECH Gaming Subsidiary 2 Corporation
By:
--------------------------------
Name:
Title:
19
GAMING ENTERTAINMENT (CALIFORNIA) LLC
By its Members
Full House Subsidiary, Inc.
By:
--------------------------------
Name:
Title:
Dreamport, Inc.
By:
--------------------------------
Name:
Title:
GTECH Gaming Subsidiary 2 Corporation
By:
--------------------------------
Name:
Title:
20
GAMING ENTERTAINMENT (MICHIGAN) LLC
By its Members
Full House Subsidiary, Inc.
By:
--------------------------------
Name:
Title:
Dreamport, Inc.
By:
--------------------------------
Name:
Title:
GTECH Gaming Subsidiary 2 Corporation
By:
--------------------------------
Name:
Title:
21
Schedule 1
Obligations of the Parties at Closing
1. Full House (and with respect to Item 1.1 hereof, the Full House Sub)
shall deliver on the Closing Date:
1.1 to each of the other Parties, a copy of the minutes of the
directors or resolutions adopted by unanimous consent of Full House and Full
House Sub, as the case may be, authorizing the execution and delivery of this
Agreement, the Amended and Restated Full House Note and each other Full House
Transaction Document and each agreement to be executed and delivered hereunder
by any Full House Party (including without limitations, in the capacity of
member in any Remaining LLC Sub) and the doing of all such things as are
incidental to its implementation (each such copy of the minutes, or resolutions,
being certified as correct and continuing authority as at the Closing by the
Secretary or Assistant Secretary of the Full House or Full House Sub and any
Remaining LLC Sub, as the case may be);
1.2 to the GTECH Subsidiaries, payment of the Purchase Price as
provided in Sections 3 and 8; and
1.3 to GTECH, the Amended and Restated Full House Note, duly executed
by an authorized representative of Full House.
2. GTECH (and each of the GTECH Subsidiaries) shall deliver on the Closing
Date:
2.1 to each of the other Parties, a copy of the minutes of the
directors or resolutions adopted by unanimous consent of GTECH and the GTECH
Subsidiaries, as the case may be, authorizing the execution and delivery of this
Agreement and each other GTECH Transaction Document and each agreement to be
executed and delivered hereunder by any GTECH Party (including, without
limitation, in the capacity of member in any of the Remaining LLC Sub) and the
doing of all such things as are incidental to the implementation (each such copy
of the minutes, or resolutions, being certified as correct and of continuing
authority as at the Closing by a Secretary or Assistant Secretary of GTECH or
the GTECH Subsidiaries or the Remaining LLC Subs, as the case may be.)
Schedule 2
Required Consent
1. Consent of the Huron Band of the Potawatomi in respect of the Michigan LLC
arrangements.
Schedule 3
Notice Information
1. If to Full House or to Full House Sub:
Full House Resorts, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000 - Xxx 00
Xxx Xxxxx, Xxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
2. If to GTECH or to any GTECH Subsidiary:
GTECH Corporation
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
3. If to any Remaining LLC Sub, provide notice both to Full House and to GTECH,
as set forth above.
Exhibit A
Full House Resorts, Inc.
Promissory Note
$3,000,000 January 26, 1996, as
amended and restated
as of March __, 2001
Full House Resorts, Inc., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to GTECH CORPORATION, a Delaware
corporation (the "Holder"), the principal sum of Three Million Dollars
($3,000,000), on January 25, 2002, or such earlier date as is provided in
Section 4(a) below (the "Maturity Date") together with any unpaid interest
accruing thereon as provided in Section 1 hereof. All payments hereunder will be
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts. Upon
payment in full of all principal, interest and other amounts due hereunder,
Holder shall surrender this Note to the Company at its principal place of
business.
1. Interest Payments. Interest on the principal amounts from time
to time outstanding under this Note shall accrue from and
after January 25, 1998 (the "Interest Commencement Date") at a
per annum rate equal, for each respective Interest Period
hereunder, to the lesser of the applicable: (i) maximum lawful
rate of interest, and (ii) "Prime Rate" (as defined below) or,
upon the occurrence and during the continuation of an Event of
Default (as defined below), at the rate equal to such Prime
Rate plus two percent (2%). Except as otherwise provided
herein, interest on the outstanding principal amount under
this Note shall be due and payable monthly in arrears
commencing on the first Business Day (as defined below) of
February, 1998, with respect to the first Interest Period (as
defined below) and thereafter on the first Business Day of
each successive calendar month with respect to successive
Interest Periods, with a final payment due and payable on the
Maturity Date in an amount equal to all accrued and unpaid
interest on the Loan as of such date.
As used in this Note:
(i) "Business Day" shall mean any day other than a
Saturday, Sunday or day on which commercial banking
institutions are authorized by law to be closed in
Las Vegas, Nevada or Providence, Rhode Island.
(ii) "Interest Period" shall mean a period consisting of
one calendar month or portion thereof, with the first
Interest Period commencing on (and including) the
Interest Commencement Date and ending on the last day
of the calendar month in which the Interest
Commencement Date falls and each subsequent interest
Period commencing on (and including) the first day of
the next succeeding calendar month.
(iii) "Prime Rate" shall mean, with respect to each day of
an Interest Period, the prime rate in effect on the
first Business Day of such Interest Period, as set
forth in the "Money Rates" section of The Wall Street
Journal, Three Star Eastern edition for such date.
2. Payment Terms. All payments of principal and interest
(including all prepayments) with respect to this Note shall be
made on the due date thereof to Holder at the following
address:
GTECH Corporation
Rhode Island Hospital Trust
Xxx Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
ABA #000000000
A/C #000-000-000
or at such other place within the continental United States as Holder may from
time to time designate in writing. Payments (including all prepayments) received
by Holder from the Company on this Note shall be applied first to the payment of
accrued and unpaid interest hereunder and only thereafter to the outstanding
principal balance of this Note.
The Company agrees that to the extent the Company makes a payment or
payments to Holder which payment or payments, or any part thereof, are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to the company, its successors or assigns under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, the obligations, or part thereof, under
this Note that have been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the time immediately
preceding such initial payment, reduction or satisfaction.
3. Default. If any of the following events shall occur and be
continuing (each such event, an "Event of Default"):
(a) the Company fails to repay the principal amount of
the Note, or any interest thereon, within five (5)
Business Days of the due date thereof;
(b) the Company violates any covenant, agreement or
condition contained in this Note and such violation
remains uncured for ten (10) Business Days after
receipt of notice from the Holder; or
(c) the Company shall be adjudicated insolvent, or fails
to pay, or admits in writing its inability to pay its
debts as they mature, or makes a general
2
assignment for the benefit of creditors; or the
Company shall apply for or consent to the appointment
of any receiver, custodian, trustee or similar
officer for it or for all or any substantial part of
its property, or such receiver, custodian, trustee or
similar officer shall be appointed without the
application or consent of the Company; or the Company
shall institute (by petition, application, answer,
consent or otherwise), insolvency, reorganization,
arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to the
Company under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition,
application or otherwise) against the Company and
such proceeding shall not be dismissed within sixty
(60) days after being instituted;
then, (i) upon the occurrence of any Event of Default described in clause (c) of
this Section, the unpaid principal amount of, and accrued and unpaid interest
on, the Note shall automatically become immediately due and payable, together
with all other amounts payable under this Note, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or further
notice of any kind, all of which are hereby expressly waived by payor, and (ii)
upon the occurrence of any other Event of Default, Holder may, at its option, by
written notice to the Company declare the entire unpaid principal amount of the
Note, all interest accrued and unpaid thereon and all other amounts payable
under this Note to be forthwith due and payable, whereupon all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or further
notice of any kind, all of which are hereby expressly waived by the Company.
4. Prepayment; Redemption. (a) If, during such time that any
amount of principal or interest (the "Outstanding
Indebtedness") remains unpaid hereunder and either:
(i) the Company, or any Company Affiliate, sells after
the date hereof (each, a "Sale") any asset in a
transaction in which cash (the "Cash Sales Proceeds")
is paid, in whole or in part, to the Company or
Company Affiliate as consideration for such Sale; or
(ii) the Company, or any Company Affiliate, receives cash
proceeds after the date hereof (the "Cash Financing
Proceeds") in respect of any debt or equity financing
(each, a "Financing"),
then, an amount equal to the lesser of:
(x) the Outstanding Indebtedness, or
(y) an amount of unpaid principal under this Note equal
to the positive difference between, on the one hand,
the aggregate of Cash Sales Proceeds realized with
respect to all Sales occurring on or after the date
hereof plus the aggregate of Cash Financing Proceeds
realized with respect to all Financings occurring on
or after the date hereof, and, on the other hand,
$1,800,000,
3
shall immediately become due and payable.
(b) This Note may, at the option of the Company, be redeemed prior to
maturity as a whole at any time or in part from time to time, at the principal
office of the Company, upon notice to the Holder provided herein, upon payment
by the Company the then outstanding principal amount of the Note, together with
accrued interest to the date fixed for redemption.
(c) For purposes of this Section 4, a "Company Affiliate" means any
corporation, partnership, limited liability company or other entity, controlled
by, controlling, or under common control with, the Company.
(d) Not less than five Business Days prior to funding under any
proposed Sale or Financing, the Company shall provide Holder with written notice
of such Sale or Financing, including full particulars as to the amount of Cash
Sale Proceeds and/or Cash Financing Proceeds to be received at the time of such
funding.
5. Transferability. This Note has not been registered under the
Act, or under the state securities laws and are transferable
only in compliance with the provisions of such laws.
6. Lost Note. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or
mutilation of this Note, and (in case of loss, theft or
destruction) of indemnity satisfactory to it (which shall be
without surety in the case of loss, theft or destruction of
this Note held by the initial purchaser thereof), and upon
reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation if
such Note is mutilated, the Company will make and deliver in
lieu thereof a new Note of like tenor, in the principal amount
of such lost, stolen, destroyed or mutilated Note outstanding
at the time of delivery of such new Note. Any Note made and
delivered in accordance with the provisions of this Section
shall be dated as of the last date to which interest has been
paid on the Note lost, stolen, destroyed or mutilated or if no
interest has been paid, the original date of this Note.
7. Reimbursement. Notwithstanding anything set forth herein, the
Company agrees to reimburse Holder for its and its agents' and
representatives' reasonable out-of-pocket expenses in
connection with (i) the enforcement of this Note, and (ii) the
exercise by Holder of its rights and remedies under this Note.
The obligations of the Company under this Section shall
survive the termination of, and the payment of, this Note. If
this Note is placed in the hands of an attorney for
collection, or collected through bankruptcy or other
proceedings, or if suit is brought on this Note, the Company
agrees to pay reasonable attorneys' fees, costs and expenses
in additional to all other amounts owning hereunder.
8. Successors and Assigns. This Note shall be binding upon and
inure to the benefit of the Company, the Holder and their
respective successors and assigns.
9. Notice. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall
be mailed by certified mail, return receipt requested, or by
4
Federal Express, Express Mail or similar overnight delivery or
courier service or delivered (in person or by telecopy, telex
or similar communications equipment) against receipt to the
party to whom it is to be given, (i) if to the Company, at its
address at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 - Box 23, Las
Vegas, Nevada 89102, Attn: President, with a copy to: General
Counsel; (ii) if to the Holder, at its address at 00
Xxxxxxxxxx Xxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000, Attention:
Chairman, with a copy to: General Counsel; or (ii) in either
case, to such other address as the party shall have furnished
in writing in accordance with the provisions of this Section.
Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be
deemed given at the time of receipt thereof. Any notice given
by other means permitted by this Section shall be deemed given
at the time of receipt thereof.
10. Applicable Law. This Agreement shall for all purposes be
construed and interpreted in accordance with the laws of the
State of Rhode Island.
IN WITNESS WHEREOF, Full House Resorts, Inc. has caused this Note to be
executed and delivered on the date first set forth above.
FULL HOUSE RESORTS, INC.
By:
-----------------------------------------
Name:
Title:
5
