Exhibit 10.50
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
AUGUST 31, 1999,
BY AND BETWEEN
HBR REALTY COMPANY, INC.,
A NEVADA CORPORATION,
AND
IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION,
AN IOWA NONPROFIT CORPORATION
TABLE OF CONTENTS
PAGE
1. AGREEMENT TO PURCHASE AND SELL.............................................................2
2. CONSIDERATION..............................................................................2
2.1 Consideration.........................................................................2
2.2 Holdback..............................................................................2
2.3 Letter of Credit......................................................................5
2.4 Allocation of the Consideration.......................................................6
3. OPENING OF ESCROW..........................................................................7
4. ACTIONS PENDING CLOSING....................................................................7
4.1 Due Diligence.........................................................................7
4.2 Title Matters.........................................................................9
4.3 Conduct of Business Pending the Closing..............................................11
4.4 Transferred and Non-Transferred Employees............................................13
4.5 Notice of Change in Circumstances; Litigation........................................14
4.6 No Defaults..........................................................................15
4.7 Exclusive Negotiation................................................................15
4.8 Intentionally Deleted................................................................16
4.9 Xxxx-Xxxxx-Xxxxxx Act................................................................16
4.10 Formation of Subsidiary.............................................................16
4.11 Reasonable Efforts..................................................................17
5. DESCRIPTION OF PROPERTY...................................................................18
5.1 The Improvements.....................................................................18
5.2 The Real Property....................................................................18
5.3 The Personal Property................................................................18
5.4 The Intangible Property..............................................................19
5.5 Net Working Capital..................................................................20
6. CONDITIONS TO CLOSING.....................................................................20
6.1 HBR's Closing Conditions.............................................................20
6.2 Failure of HBR's Closing Conditions..................................................24
6.3 IWRA's Closing Conditions............................................................24
6.4 Failure of IWRA's Closing Conditions.................................................26
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7. TERMINATION...............................................................................26
7.1 Termination Events...................................................................26
7.2 Effect of Termination................................................................28
7.3 Payment of Costs Upon Termination....................................................29
8. CLOSING...................................................................................29
8.1 Closing Date.........................................................................29
8.2 Deliveries by IWRA...................................................................29
8.3 Deliveries by HBR....................................................................31
8.4 Actions by Escrow Agent..............................................................32
8.5 Working Capital Adjustments to the Consideration.....................................33
8.6 Post Closing Adjustments.............................................................33
8.7 Closing Costs........................................................................34
8.8 Deliveries Outside of Escrow.........................................................35
9. IWRA'S REPRESENTATIONS AND WARRANTIES.....................................................36
9.1 Existing Contracts...................................................................36
9.2 Insurance............................................................................36
9.3 Litigation...........................................................................36
9.4 Compliance with Laws.................................................................37
9.5 Condemnation; Special Assessments....................................................37
9.6 Toxic or Hazardous Materials.........................................................38
9.7 Disclosure...........................................................................39
9.8 No Conflicts.........................................................................39
9.9 Due Organization; Consents...........................................................40
9.10 IWRA's Authority; Validity of Agreements............................................40
9.11 Foreign Investment In Real Property Tax Act.........................................40
9.12 Leases..............................................................................40
9.13 Gaming Laws.........................................................................40
9.14 Year 2000 Compliance................................................................41
9.15 Financial Statements................................................................42
9.16 Taxes...............................................................................43
9.17 Nonprofit Status....................................................................43
9.18 Liens Against the Gaming License....................................................44
9.19 Liens Against the Gaming Equipment..................................................44
9.20 Books and Records...................................................................44
9.21 No Undisclosed Liabilities..........................................................44
9.22 Accounts Receivable.................................................................44
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9.23 Disputed Accounts Payable...........................................................44
9.24 Intellectual Property...............................................................45
9.25 Labor Matters.......................................................................46
9.26 Compliance with the WARN Act........................................................48
9.27 Utilities Access....................................................................48
9.28 Complimentaries.....................................................................48
9.29 Customer Database...................................................................48
9.30 Material Misstatements or Omissions.................................................49
9.31 Ad Valorem Taxes....................................................................49
9.32 Mechanic's Liens....................................................................49
9.33 Liens on Personal Property and Intangible Property..................................49
9.34 Condition of Property...............................................................49
9.35 Stipulated Agreement................................................................49
10. HBR'S REPRESENTATIONS AND WARRANTIES......................................................50
10.1 No Conflicts........................................................................50
10.2 Due Organization; Consents..........................................................50
10.3 HBR's Authority; Validity of Agreements.............................................51
10.4 Litigation..........................................................................51
10.5 Current Assets......................................................................51
11. ADDITIONAL COVENANTS OF IWRA..............................................................51
11.1 Gaming License and Status...........................................................51
11.2 IWRA's Nonprofit Status.............................................................52
11.3 Promotion of Gaming.................................................................52
11.4 Litigation..........................................................................53
11.5 Governmental Authorities............................................................53
11.6 Account for Indemnity Claims........................................................53
12. ADDITIONAL COVENANTS OF HBR.
12.1 Calculation of the Cap Payment......................................................53
12.2 Delivery of the Cap Payment.........................................................53
12.3 Certain Rights Assignable...........................................................55
12.4 Equitable Adjustment................................................................56
12.5 Governmental Authorities............................................................56
12.6 Financing...........................................................................56
13. RISK OF LOSS..............................................................................56
13.1 Condemnation........................................................................56
13.2 Casualty............................................................................57
14. REMEDIES..................................................................................57
14.1 Default by HBR......................................................................57
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14.2 Default by IWRA.....................................................................58
15. BROKERS...................................................................................58
15.1 IWRA's Broker.......................................................................58
15.2 HBR's Broker........................................................................58
16. INDEMNIFICATION...........................................................................58
16.1 HBR's Indemnification...............................................................58
16.2 IWRA's Indemnification..............................................................59
16.3 Further Assurances..................................................................59
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS..................................................59
17.1 Confidentiality.....................................................................59
17.2 Public Announcements................................................................59
18. MISCELLANEOUS PROVISIONS..................................................................60
18.1 Governing Law.......................................................................60
18.2 Entire Agreement....................................................................60
18.3 Modification; Waiver................................................................60
18.4 Notices.............................................................................60
18.5 Expenses............................................................................63
18.6 Assignment..........................................................................63
18.7 Severability........................................................................63
18.8 Survival............................................................................64
18.9 Arbitration.........................................................................64
18.10 Successors and Assigns; Third Parties..............................................65
18.11 Counterparts.......................................................................65
18.12 Headings...........................................................................65
18.13 Time of Essence....................................................................65
18.14 Further Assurances.................................................................65
18.15 Number and Gender..................................................................66
18.16 Construction.......................................................................66
18.17 Post Closing Access to Records.....................................................66
18.18 Exhibits and Schedules.............................................................66
18.19 Attorneys' Fees....................................................................66
18.20 Business Days......................................................................66
18.21 Amendment or Supplement............................................................66
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "AGREEMENT") is made and entered into as of August 31,
1999 (the "EXECUTION DATE"), by and between HBR REALTY COMPANY, INC., a
Nevada corporation ("HBR"), and IOWA WEST RACING ASSOCIATION, NONPROFIT
CORPORATION, an Iowa nonprofit corporation ("IWRA"), for the purpose of
setting forth the agreement of the parties and of instructing FIDELITY
NATIONAL TITLE INSURANCE COMPANY ("ESCROW AGENT") with respect to the
transactions contemplated by this Agreement.
R E C I T A L S
A. IWRA is the owner of (i) an undivided fee simple
interest in that certain parcel of real property located in the City of
Council Bluffs, County of Pottawattamie, State of Iowa, as more particularly
described on EXHIBIT "A" attached hereto (the "LAND PARCEL"), together with
the "Improvements" (as hereinafter defined) located thereon, comprised of a
casino and a dog racing track commonly known as "Bluffs Run Casino" (the
"GAMING FACILITY"), and (ii) a leasehold interest in certain parcels of real
property located in the City of Council Bluffs, County of Pottawattamie,
State of Iowa, and in the City of Omaha, County of Xxxxxxx, State of
Nebraska, each as more particularly described on EXHIBIT "B" attached hereto
(collectively, the "LEASED PROPERTIES").
B. The Land Parcel, together with the Leased Properties,
the Improvements, the balance of the "Real Property," the "Personal
Property," the "Intangible Property," and the "Net Working Capital" (each as
hereinafter defined), are sometimes collectively referred to herein as the
"PROPERTY."
C. Subject to the receipt of any and all permits, consents
and approvals necessary from any "Governmental Authority" (as hereinafter
defined), including, without limitation, the Iowa Racing and Gaming
Commission (the "GAMING COMMISSION"), the Administrator of the Gaming
Commission, the U.S. Federal Trade Commission and the Antitrust Division of
the U.S. Department of Justice and as further set forth in Section 7.1.4
hereof, IWRA desires to sell and HBR desires to purchase the Property upon
and subject to the terms and conditions set forth in this Agreement.
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A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, HBR and IWRA
hereby agree, and instruct Escrow Agent, as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement,
IWRA agrees to sell, transfer and convey to HBR, and HBR agrees to acquire and
purchase from IWRA, the Property, upon and subject to the terms and conditions
set forth herein.
2. CONSIDERATION.
2.1 CONSIDERATION. The consideration for the Property (the
"CONSIDERATION") shall be (i) One Hundred Thirty Nine Million Six Hundred
Thousand and No/100 Dollars ($139,600,000.00) plus (ii) an amount equal to the
present value of certain projected tax savings (the "INITIAL TAX SAVINGS
PAYMENT") to be realized by HBR calculated as of the "Closing Date" (as
hereinafter defined) in accordance with SCHEDULE 2.1 attached hereto.
2.2 HOLDBACK. At "Closing" (as hereinafter defined), Forty
Five Million and No/100 Dollars ($45,000,000.00), without interest (the
"HOLDBACK"), of the Consideration shall not be paid by HBR but shall become
payable only in accordance with the terms and conditions set forth below:
2.2.1 REFERENDUM APPROVAL. On or before the
"Referendum Payment Date" (as hereinafter defined), HBR shall pay to IWRA, by
wire transfer of immediately available funds (x) the Holdback, plus (y) Five
Million and No/100 Dollars ($5,000,000.00), without interest (the "BONUS"),
unless either (i) the proposition to approve gambling games at pari-mutuel
racetrack enclosures, submitted to the county electorate at the 2002 general
election pursuant to the requirements of Iowa Code Section 99F.7, subsection
10, subparagraph "d" as in effect on the date hereof (the "REFERENDUM"),
shall not have been approved, or (ii) as of the Referendum Payment Date, a
slots casino cannot continue to be operated at the Gaming Facility under
then-applicable law, PROVIDED, that if a "Referendum Challenge" (as
hereinafter defined) shall have been brought prior to the Referendum Payment
Date, then,
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subject to any payment obligation under Sections 2.2.2 and 2.2.3, HBR shall not
be obligated to pay the Holdback or the Bonus. Passage of the Referendum is
hereinafter referred to as "REFERENDUM APPROVAL," the date the results of the
Referendum are certified to the County Auditor of Pottawattamie County, Iowa is
hereinafter referred to as the "REFERENDUM DATE," and the fifth (5th) "Business
Day" (as hereinafter defined) after the Referendum Date is hereinafter referred
to as the "REFERENDUM PAYMENT DATE."
2.2.2 FAILURE OF REFERENDUM APPROVAL WITHOUT
BUSINESS INTERRUPTION. If Referendum Approval is not obtained or if HBR is
not required to pay the Holdback and the Bonus due to the existence of a
Referendum Challenge, but the operation of a slots casino at the Gaming
Facility can continue through December 31, 2003 without being interrupted as
a result of the Referendum or any Referendum Challenge (other than one or
more interruptions totaling an aggregate of no more than four weeks during
such period), then HBR shall have no obligation to pay the Holdback or the
Bonus. In such circumstance, HBR shall be obligated to pay to IWRA, by wire
transfer in immediately available funds, an amount equal to Ten Million and
No/100 Dollars ($10,000,000.00), without interest (the "ANNIVERSARY
PAYMENT"), on December 31, 2003. If the Anniversary Payment has been earned,
then on the last day of each complete calendar quarter after December 31,
2003 during which HBR can continue to operate a slots casino at the Gaming
Facility, HBR shall be obligated to pay to IWRA by wire transfer of
immediately available funds, a payment of Two Million Five Hundred Thousand
and No/100 Dollars ($2,500,000.00), without interest (the "QUARTERLY
PAYMENTS"), PROVIDED, that HBR's obligations to make Quarterly Payments shall
terminate if such operations are interrupted after December 31, 2003 as a
result of the Referendum or a Referendum Challenge, such termination to be
effective for the quarter in which the interruption occurred and all
subsequent quarters. The maximum number of Quarterly Payments shall be as
follows: (a) if the Referendum Approval shall not have been obtained, eight
(8); or (b) if the Referendum Approval was obtained, but HBR is not required
to pay the Holdback and the Bonus because of the existence of a Referendum
Challenge, sixteen (16), each of (a) and (b) shall be reduced as necessary to
reflect any payments made pursuant to Section 2.2.3 hereof.
2.2.3 REFERENDUM CHALLENGES. If any judicial,
administrative or other legal proceeding which seeks to void, delay,
challenge or otherwise contest the results of a Referendum Approval (each, a
"REFERENDUM CHALLENGE") is brought following Referendum Approval, but prior
to the Referendum Payment Date, then, subject to the provisions of Section
2.2.2, HBR shall not be obligated to pay the
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Holdback or the Bonus unless and until (i) all such Referendum Challenges
have been dismissed or otherwise denied to the reasonable satisfaction of
HBR, or (ii) not earlier than the 180th day following the Referendum Date,
IWRA shall have provided HBR with an opinion of counsel, reasonably
acceptable to HBR, that such Referendum Challenge is substantially without
merit and likely to fail. Subject to the provisions of this section, if
condition (i) or (ii) above is satisfied, HBR shall pay to IWRA, by wire
transfer of immediately available funds, the Holdback and the Bonus (minus
any amounts paid pursuant to Section 2.2.2 hereof, and plus interest at the
rate of 6% per annum from the Referendum Date to the date such amounts were
actually paid), not later than five (5) Business Days following the
satisfaction of such condition (the "CHALLENGE PAYMENT DATE"). If, prior to
December 31, 2005, HBR makes any payment pursuant to Sections 2.2.1, 2.2.2 or
2.2.3(ii), and as a result of any Referendum Challenge brought prior to, or
within 180 days after, the Referendum Date, HBR cannot continue to operate a
slots casino at the Gaming Facility, IWRA shall reimburse HBR for all amounts
paid pursuant to Sections 2.2.1, 2.2.2 or 2.2.3 hereof, less any amounts that
would have been paid pursuant to Section 2.2.2 if the Referendum Approval had
not been obtained. Any reimbursement shall include interest at the rate of 6%
per annum, from the date HBR made such reimbursable payment to IWRA to the
date IWRA makes such reimbursement to HBR. Prior to the Challenge Payment
Date, either party may initiate arbitration proceedings under Section 18.9
hereunder to challenge the other party's determination that condition (i) or
(ii) is or is not satisfied. The prevailing party in such arbitration shall
be entitled to payment of reasonable costs and attorney's fees incurred in
connection with such arbitration, and all payment obligations of HBR shall be
suspended during the pendency of any such arbitration. If the arbitrators
determine that any suspended payment was due to IWRA, HBR shall pay such
amount, plus interest at the rate of 8% per annum, from the date such payment
was determined to have been due until the date such amount is paid.
2.2.4 RIGHT OF OFFSET. If, on any date that
payment is due to IWRA under this Section 2.2, IWRA owes HBR monies pursuant
to the terms of this Agreement (other than Section 2.2.1), the Lease by and
between HBR and IWRA, attached hereto as EXHIBIT "C" (the "LEASE"), or the
Management Agreement by and between IWRA and Harveys BR Management Company,
Inc., a Nevada corporation ("MANAGER"), attached hereto as EXHIBIT "D" (the
"MANAGEMENT AGREEMENT"), then HBR shall be entitled to offset such amounts
against payments due to IWRA as follows: (i) if such amounts are owed to HBR
pursuant to Section 12.2 hereof, then HBR may offset such amounts from any
payment owed to IWRA, and (ii) if such amounts are owed to HBR pursuant to
any other section of this Agreement, the Lease
4
or the Management Agreement such amount shall have been reduced to a final
judgment, not subject to appeal, at which time HBR may offset such amounts
from any payment owed to IWRA. In the event that HBR intends to offset any
amounts, it shall notify IWRA at least five (5) Business Days prior to such
offset, PROVIDED, that the failure to make such notice shall not adversely
affect HBR's right to make such offset. If IWRA disputes any offset, it may
initiate arbitration proceedings under Section 18.9 hereunder to challenge
any such offset within thirty (30) Business Days of the date IWRA receives
notice of such offset from HBR. The prevailing party in such arbitration
shall be entitled to payment of reasonable costs and attorney's fees incurred
in connection with such arbitration. If the arbitrators determine that any
amounts offset by HBR should have been paid to IWRA, HBR shall pay such
amounts, plus interest at the rate of 6% per annum, from the date such
payments were determined to have been due until the date such amounts are
paid.
2.2.5 CERTAIN RIGHTS ASSIGNABLE. Notwithstanding
the provisions of Section 18.6.1 of this Agreement, IWRA may assign its
rights to payment of any amounts payable pursuant to this Section 2.2 to Iowa
West Foundation, an Iowa nonprofit corporation (the "FOUNDATION"), PROVIDED,
that the Foundation shall have executed an agreement to bound by the terms of
this Section 2.2. Upon receipt of notice from IWRA that such assignment has
occurred, HBR shall make such payments directly to the Foundation in
accordance with this Section 2.2.
2.3 LETTER OF CREDIT. HBR's obligations pursuant to Section
2.2.1 and payments due in the event of an unsuccessful Referendum Challenge
under Section 2.2.3 hereof shall be supported by an irrevocable letter of
credit on the terms set forth on Schedule 2.3 attached hereto (the "LETTER OF
CREDIT"), which Letter of Credit shall be delivered on the Closing Date
pursuant to Section 8.3.4 hereof. On the Closing Date, Escrow Agent shall
deliver the Letter of Credit to First National Bank of Omaha ("L/C ESCROW
AGENT") to be held pursuant to the terms and conditions below. The reasonable
fees and expenses of the L/C Escrow Agent shall be paid by HBR.
2.3.1 DRAWS ON THE LETTER OF CREDIT. If HBR is
obligated to pay the Holdback and the Bonus to IWRA in full pursuant to
Sections 2.2.1 or 2.2.3, but HBR fails to make such payment when due, then
IWRA shall send HBR a notice of such failure. If HBR does not pay the
Holdback to IWRA within two (2) Business Days of HBR's receipt of IWRA's
notice, then, subject to Section 2.3.3 below, IWRA and HBR shall each deliver
a notice executed by such party which instructs L/C Escrow Agent to draw on
the amount of the Letter of Credit to the extent of any shortfall in the
payment of the Holdback. Notwithstanding anything to the contrary
5
herein, subject to the terms of Section 2.3.2 below, L/C Escrow Agent shall
draw on the entire stated amount of the Letter of Credit on the third (3rd)
Business Day prior to the expiry date thereof, unless on or before such date,
HBR delivers to L/C Escrow Agent (i) an extension of such expiring Letter of
Credit, (ii) a replacement letter of credit substantially on the same terms
as the Letter of Credit, or (iii) an amount of cash equal to the stated
amount of the expiring Letter of Credit.
2.3.2 CANCELLATION OF THE LETTER OF CREDIT.
Within three (3) Business Days of the occurrence of either (i) the Referendum
Date, if Referendum Approval is not obtained; or (ii) the later of HBR's
payment of the Holdback and the Bonus as set forth in Sections 2.2.1 or
2.2.3, if the Referendum Approval is obtained; IWRA and HBR shall deliver a
notice executed by each party which instructs L/C Escrow Agent to cancel the
Letter of Credit. If a Referendum Challenge is pending and HBR makes any
payment to IWRA under Section 2.2.2 hereof, IWRA and HBR shall deliver a
notice executed by each party which instructs L/C Escrow Agent to reduce the
amount of the Letter of Credit accordingly.
2.3.3 DISPUTES. In the event that HBR and IWRA
have any dispute regarding any matter governed by this Section 2.3, then they
shall submit their dispute to binding arbitration in accordance with Section
18.9 hereof. Notwithstanding anything to the contrary herein, in the event
that there is a dispute between the parties as to any amount to be disbursed
from L/C Escrow Agent to IWRA, then (i) with respect to the amounts in
dispute, L/C Escrow Agent shall hold such amount or the Letter of Credit
supporting such amount in escrow and shall not disburse any disputed amounts
until the dispute is resolved pursuant to a written agreement between HBR and
IWRA or a written determination of the arbitrator pursuant to Section 18.9
hereof and (ii) with respect to amounts not in dispute, HBR and IWRA shall
instruct L/C Escrow Agent to disburse the undisputed amounts to IWRA in
accordance with the terms of this Agreement. Upon the parties receipt of an
exe cuted decision of an arbitrator with respect to any amount held by L/C
Escrow Agent, HBR and IWRA shall deliver instructions to L/C Escrow Agent to
disburse such amounts in accordance with such arbitrator's decision.
2.4 ALLOCATION OF THE CONSIDERATION. The Consideration
(less any payments required under Section 2.2 hereof) shall be allocated
among the Property in accordance with section 1060 of the Internal Revenue
Code of 1986, as amended (the "CODE"), and the Treasury regulations
promulgated thereunder, and such allocations shall be reflected on EXHIBIT
"E" attached hereto. HBR and IWRA agree to file their respective United
States federal and state income "Tax Returns" (as defined below),
6
including Internal Revenue Service Form 8594, in a manner consistent with
EXHIBIT "E" as such exhibit may be adjusted, from time to time. Prior to the
Closing, EXHIBIT "E" shall be prepared by HBR and be reasonably acceptable to
IWRA. Any additional Consideration paid pursuant to Section 2.2 hereof shall be
allocated pursuant to section 1060 of the Code and in a manner consistent with
the allocations as set forth on EXHIBIT "E".
30 OPENING OF ESCROW.
On or before the third (3rd) Business Day after the
Execution Date, HBR and IWRA shall cause an escrow ("ESCROW") to be opened
with Escrow Agent by delivery to Escrow Agent of a fully executed copy of
this Agreement. This Agreement shall constitute escrow instructions to Escrow
Agent as well as the agreement of the parties. Escrow Agent is hereby
appointed and designated to act as Escrow Agent and instructed to deliver,
pursuant to the terms of this Agreement, the documents and funds to be
deposited into Escrow as herein provided. The parties hereto shall execute
such additional escrow instructions (not inconsistent with this Agreement as
determined by counsel for HBR and IWRA) as Escrow Agent shall deem reasonably
necessary for its protection, including Escrow Agent's general provisions (as
may be modified by HBR, IWRA and Escrow Agent). In the event of any
inconsistency between the provisions of this Agreement and such additional
escrow instructions, the provisions of this Agreement shall govern.
40 ACTIONS PENDING CLOSING.
4.1 DUE DILIGENCE.
4.1.1 PROPERTY DOCUMENTS. Prior to the Execution
Date, at IWRA's sole cost and expense, IWRA has delivered to HBR, for its
review and copying, true, correct and complete copies of all contracts,
organizational and corporate documents, collective bargaining agreements,
employment documents and records, correspondence, books, ledgers, files and
any and all other materials relating to the Property (other than business
plans, marketing plans, and other proprietary documents which shall be
delivered to HBR at Closing), including, without limitation, all tax filings
(including, without limitation, those related to IWRA's charitable or
nonprofit status), audited and unaudited financial statements for the past
three (3) years, incorporation documents, corporate by-laws and minutes,
standard operating procedure manuals or guidelines, business plans,
documentation regarding human resource programs or policies, personnel
records, marketing plans, as-built plans and
7
specifications, income and expense records, leases, engineering tests, soil
tests, hazardous materials reports, termite reports, environmental reports
and assessments, "Service Contracts" (as hereinafter defined), structural and
mechanical reports, maps (including, without limitation, topographical maps),
plans, agreements, governmental permits and approvals, licenses, appraisals,
abstracts of title, title opinion letters, title policies, surveys,
construction warranties, land studies, a description of existing and known
proposed local improvements affecting the Property (including, without
limitation, assessment levels), a certificate from the appropriate
governmental authorities confirming the zoning, building and platting status
of the Property, all correspondence with all Federal, state or local
government or any court, administrative, or regulatory agency or commission
or other governmental entity or agency or quasi-governmental entity or agency
of any nature, domestic or foreign, including, without limitation, the Gaming
Commission, the Administrator of the Gaming Commission, the U.S. Federal
Trade Commission and the Antitrust Division of the U.S. Department of Justice
(collectively, the "GOVERNMENTAL AUTHORITIES" and each, a "GOVERNMENTAL
AUTHORITY") regarding the Property, all property tax statements and assessed
value notices, and all insurance policies (collectively, the "PROPERTY
DOCUMENTS"), to the extent that the same were in its possession and IWRA has
used its best efforts to cause its agents, auditors or independent
contractors to deliver the same to HBR after a diligent review and
examination of their respective files and records.
4.1.2 HBR'S DILIGENCE TESTS. At all reasonable
times during the period commencing on the Execution Date and ending on the
Closing Date or the earlier termination of this Agreement, HBR, its agents
and representatives shall be entitled to: (a) enter onto the Property at all
reasonable times so long as reasonable advance notice has been given to IWRA,
to perform any inspections, investigations, studies and tests of the
Property, including, without limitation, physical, structural, mechanical,
architectural, engineering, soils, geotechnical and environmental tests, that
HBR deems reasonable; (b) cause an environmental assessment of the Property
to be performed, upon reasonable notice to IWRA; (c) review all Property
Documents and examine and copy any and all books and records maintained by
IWRA or its agents (including, without limitation, all documents relating to
utilities, zoning and the access, subdivision and appraisal of, and all legal
requirements affecting, the Property); and (d) investigate such other matters
as HBR may reasonably desire. The parties shall use commercially reasonable
efforts to obtain an environmental report and assessment reasonably
acceptable to HBR (the "PHASE I REPORT") as soon as reasonably practicable.
HBR shall indemnify, protect, defend and hold harmless IWRA from all claims,
liens and encumbrances (including, without limitation, any
8
claim for a mechanic's lien or materialman's lien), causes of action, costs,
losses, damages and reasonable attorneys' fees incurred by IWRA in connection
with or arising out of any inspections or tests carried on, by or on behalf
of HBR pursuant to this Section 4.1.2; PROVIDED, HOWEVER, that HBR shall not
indemnify IWRA for any claim, loss or cause of action caused by IWRA's
negligence or willful misconduct or any physical condition existing on the
Property prior to HBR's or its agent's entry thereon. HBR's indemnity
obligation pursuant to the immediately preceding sentence shall survive the
Closing or earlier termination of this Agreement.
4.2 TITLE MATTERS.
4.2.1 ABSTRACT OF TITLE. IWRA has caused a
continuation of the abstract of title for the Real Property (the "ABSTRACT OF
TITLE") to be completed and delivered to the Law Offices of Xxxxxx X.
Xxxxxxxx, Attorney at Law, HBR's Iowa local counsel ("HBR'S LOCAL COUNSEL").
HBR's Local Counsel has examined and prepared an attorney's title opinion
(the "TITLE OPINION") addressed to Fidelity National Title Insurance Company
(in such capacity, "TITLE COMPANY"). The Abstract of Title shall become the
property of HBR on the Closing Date, and shall show marketable title, subject
to "Permitted Exceptions" (as defined below) in conformity with this
Agreement, the land title law of the State of Iowa, and the Iowa Title
Standards of the Iowa State Bar Association.
4.2.2 DELIVERIES BY IWRA. IWRA has caused: (a)
Title Company to issue and deliver to HBR a current preliminary report for an
American Land Title Association (ALTA) extended coverage owner's policy of
title insurance for the Property (the "PTR"); (b) Title Company to deliver to
HBR legible copies of all documents referenced as exceptions in the PTR
(collectively, the "UNDERLYING DOCUMENTS"); (c) a search for filings (at the
State and County in which the Property is located and at the State of
formation of IWRA) pursuant to the Uniform Commercial Code with regard to
the Personal Property (the "UCC SEARCH") to be performed and delivered to
HBR; and (d) a surveyor licensed in the State of Iowa to prepare and deliver
to HBR and Title Company a current as-built survey for the Property (the
"SURVEY"), in a form reasonably satisfactory to HBR and Title Company, made
in accordance with ALTA / ACSM minimum technical standards and the laws of
the State of Iowa, certified to HBR (and its nominees), Title Company, IWRA
and, at the request and expense of HBR, to any other person, limited
partnership, limited liability company, corporation, joint venture, or any
other entity (collectively, "PERSON") as HBR may reasonably request, showing
the entire Real Property, all adjoining streets and roads (including, without
limitation, the points of ingress and
9
regress thereto), the exact location by metes and bounds and the exact
dimensions of the Land Parcel and any buildings and structures located
thereon, a legal description of the Land Parcel, the flood zone designation
of the Real Property, the exact location of any Improvements, set back lines,
protrusions, encroachments, parking spaces and easements on and upon the Real
Property, together with all rights-of-way and other matters relating to the
Real Property. The PTR, the Underlying Documents, the UCC Search and the
Survey shall be collectively referred to herein as the "TITLE DOCUMENTS."
Notwithstanding the foregoing, the parties hereby acknowledge that, as of the
Execution Date, a final Survey has not yet been delivered by IWRA to HBR for
approval.
4.2.3 HBR'S REVIEW OF TITLE. HBR shall have
until the fifteenth (15th) day following the receipt of all Title Documents
and the Phase I Report (the "DUE DILIGENCE TERMINATION DATE") to notify IWRA
in writing of any objection that HBR may have to any matters reported or
shown in the Title Documents (provided, however, that if any updates to the
Title Documents are received by HBR, HBR shall have an additional five (5)
Business Days, regardless of the passage of the Due Diligence Termination
Date, following HBR's receipt of such update and legible copies of all
documents referenced therein, to notify IWRA of objections to items shown on
any such update that were not disclosed on the previously delivered Title
Documents). Matters reported in or shown by the Title Documents (or any
updates thereof) and not timely objected to by HBR as provided above shall be
deemed to be "PERMITTED EXCEPTIONS." As a condition to Closing, IWRA shall
take all reasonable action necessary to remove from title to the Property any
exceptions and matters so objected to by HBR, or, in the alternative, IWRA
shall obtain for HBR title insurance from Title Company insuring over such
exceptions or matters, such insurance to be in form and substance
satisfactory to HBR. If, prior to the Closing, IWRA is unable despite such
reasonable actions to remove or satisfactorily insure over any exceptions or
matters objected to by HBR, then HBR may, as its sole and exclusive remedy
therefor, either: (a) terminate this Agreement (in which case the parties
shall equally share the cancellation charges, if any, of Escrow Agent and
Title Company, and neither party shall thereafter have any rights or
obligations to the others hereunder, other than pursuant to Sections 4.1.2
and 8.7 and Article 15 hereof, which provisions shall survive the termination
of this Agreement); or (b) proceed to a timely Closing whereupon such
objected to exceptions or matters shall be deemed to be Permitted Exceptions.
Notwithstanding anything to the contrary contained herein, IWRA shall
discharge and remove any and all liens affecting the Property that secure an
obligation to pay money (other than installments of real estate taxes not
delinquent
10
as of the Closing) (collectively, the "LIENS") and, even though HBR does not
expressly disapprove such Liens, such Liens shall not be Permitted Exceptions.
4.2.4 CONDITION OF TITLE AT CLOSING. Upon the
Closing, IWRA shall transfer, contribute and convey to HBR fee simple title
to the Real Property by a duly executed and acknowledged general warranty
deed in the form of EXHIBIT "G" attached hereto (the "DEED"), subject only to
the Permitted Exceptions. Prior to the Closing, IWRA shall not take any
action or commit or suffer any acts that would give rise to a variance from
the current legal description of the Real Property, or cause the creation of
any exception or encumbrance against or respecting the Real Property without
the prior written consent of HBR, which consent may be withheld in HBR's sole
and absolute discretion. IWRA shall not directly or indirectly sell,
contribute, assign or create any right, title or interest whatsoever in or to
the Property, the Gaming License, or the Gaming Equipment, or create or
permit to exist thereon any lien, charge or encumbrance other than the
applicable Permitted Exceptions, or enter into any agreement to do any of
the foregoing, without the prior written consent of HBR (which consent may be
granted or withheld in HBR's sole and absolute discretion). Nothing in this
Section 4.2.4 shall preclude HBR from disapproving title matters in
accordance with the provisions of Section 4.2.3 hereof.
4.3 CONDUCT OF BUSINESS PENDING THE CLOSING. From the
Execution Date through the Closing Date, IWRA shall conduct its operations
and business with respect to the Property in the ordinary and usual course of
business, consistent with all laws, rules, regulations, ordinances, or court
or administrative orders or decisions of all applicable "Governmental
Authorities" (collectively, "LAWS") and past practice. In furtherance of the
immediately preceding sentence, IWRA shall use its best efforts to cause AIM,
Inc., an Iowa corporation ("CURRENT MANAGER"), its current property manager,
and all of IWRA's and/or Current Manager's employees to operate the Property
in the ordinary course of business, consistent with all Laws and past
practice. Current Manager shall be deemed to have reviewed this Agreement.
4.3.1 Without limiting the generality of the
foregoing, and except as otherwise expressly permitted by this Agreement,
prior to the Closing Date, without the prior written consent of HBR, IWRA
shall not:
(i) mortgage or otherwise encumber or subject
to any lien any of the Property;
(ii) sell, transfer or assign any of the
Property;
11
(iii) enter into any contract with respect to
the Property which (a) is not terminable within ninety (90) days, or (b)
requires the approval of the Gaming Commission, unless with respect to (a)
and (b), a proposed copy of the contract, including, without limitation, any
agreements relating to greyhound purses, has been delivered to HBR and HBR
has not disapproved such contract within five (5) Business Days of its
receipt;
(iv) take any actions with respect to the
development of the Property, including, without limitation, applying for,
pursuing, accepting or obtaining any permits, approvals or other development
entitlements from any Governmental Authority or finalizing or entering into
any agreements relating thereto without the prior written consent of HBR
(which consent may be granted or withheld in HBR's sole and absolute
discretion);
(v) except as may be required by a change in
Law or in generally accepting accounting principles, change any of the
accounting practices, principles, or procedures employed as of the Execution
Date;
(vi) unless required by a change in Law,
close, terminate or otherwise eliminate any activity historically conducted
on the Property;
(vii) unless required by a change in Law, make
any material change to any practice or procedure relating to the employees of
IWRA, including, without limitation, any human resources procedures,
compensation and benefit programs, and salary or hourly wage amounts, except
ordinary merit pool increases or increases due to tenure in accordance with
past practice provided that, with respect to any employee, such increase
shall not exceed five percent (5%) of such employee's salary or hourly rate
prior to such increase without the prior written consent of HBR (which
consent may be granted or withheld in HBR's sole and absolute discretion);
(viii) take or agree to take in writing or
otherwise, any actions prohibited in subsections (i) through (vii) above.
12
4.4 TRANSFERRED AND NON-TRANSFERRED EMPLOYEES.
4.4.1 HBR will extend offers of continued
employment to all the employees of IWRA working at the Property as of or
immediately prior to the Closing Date for employment beginning immediately
after the Closing Date (other than the general manager (the "GENERAL
MANAGER") of the Property). Employees who accept such employment with HBR are
herein collectively referred to as the "TRANSFERRED EMPLOYEES." For the
purposes of compensation, leave and benefit programs only, including tenure
provisions and vesting rights, each Transferred Employee shall retain as his
or her hire date, the most recent date he or she was hired by IWRA. The terms
and conditions of employment of such Transferred Employees, including
benefits, shall be at least equal to those provided to existing employees of
the entity affiliated with HBR that owns and operates the riverboat casino
located in Council Bluffs, Iowa, commonly known as Xxxxxx'x Casino Hotel.
Each of the parties agrees to cooperate with each other in order to
accomplish an orderly transfer of the Transferred Employees. IWRA hereby
agrees to employ the General Manager upon such terms as HBR and the General
Manager shall agree to assist in such transition (the "TRANSITION EMPLOYMENT
PERIOD"). HBR shall be responsible for the General Manager's compensation and
benefits (as in effect on the Execution Date) during the Transition
Employment Period. IWRA shall use its best efforts to cause the General
Manager of the Property to cooperate with and aid in the orderly transfer of
the Property to HBR. Upon request by HBR prior to the end of the Transition
Employment Period, IWRA shall terminate the employment of the General
Manager following the Transition Employment Period. IWRA shall pay ninety
(90) days' severance pay to General Manager.
4.4.2 On or prior to the Closing Date, IWRA shall
terminate the employment of all Transferred Employees.
4.4.3 All obligations, debts, and liabilities
relating to any Transferred Employee, which (a) due and payable on or prior
to the Closing Date, (b) attributable to the period on or prior to the
Closing, (c) have accrued but are not due or payable on or prior to the
Closing (excluding, however, any obligations, debts or liabilities included
in the working capital adjustment set forth in Section 8.5 hereof which shall
be HBR's obligations), are the responsibility of IWRA and (d) any accrued
bonuses are the responsibility of IWRA and are to be paid to the Transferred
Employees by IWRA prior to or on the Closing Date.
13
4.4.4 All known obligations, debts, liabilities
and "Proceedings" (as hereinafter defined) relating to any and all employees
of IWRA that are not Transferred Employees (such employees being hereinafter
referred to as "NON-TRANSFERRED EMPLOYEES") for periods prior to and
including the Closing Date, including, without limitation, all salaries,
accrued vacations, bonuses and liabilities under severance or employment
agreements for the Non-Transferred Employees, are the responsibility of IWRA.
IWRA shall have the right (in its sole and absolute discretion) to terminate
or not to terminate any or all of the Non-Transferred Employees. For any
Non-Transferred Employees that remain employees of IWRA from and after the
Closing Date, IWRA shall continue to assume any and all liabilities under any
health, welfare, insurance, disability, retirement or similar plans, policies
or arrangements and other liabilities or obligations concerning or relating
to Non-Transferred Employees and shall indemnify, defend and hold HBR
harmless from and against any and all Proceedings arising out of or relating
in any way to the employment, employment practices, terms and conditions of
employment or termination of employment by IWRA of any Non-Transferred
Employee, including, without limitation, any current or future Proceedings
regarding the violation of applicable Federal, state and local laws, rules
and regulations relating to immigration, discrimination, harassment, terms
and conditions of employment, work hours, wages, plant closings or mass
layoffs, child labor, occupational health and safety, and the payment and
withholding of taxes and other sums required by Governmental Authorities.
4.4.5 HBR and IWRA acknowledge and agree that,
(a) except as provided in Section 4.4.1 no representations or commitments
concerning the terms or conditions of employment by IWRA or HBR following the
Closing have been or will be given to any employees of IWRA, except as agreed
to in writing as a joint or individual communication to any employees of IWRA
and as may be required for any "effects bargaining" with the Union; (b)
except as HBR may otherwise agree in writing or as may be required by Law,
the employment of any Transferred Employee by HBR following the Closing shall
be on an at-will basis, and HBR (or any such Transferred Employee) may
terminate the employment relationship at any time, for any reason, with or
without cause or notice; and (c) the terms and conditions of the Transferred
Employees' employment with HBR follow ing the Closing are subject to change
at any time with or without notice.
4.5 NOTICE OF CHANGE IN CIRCUMSTANCES; LITIGATION. IWRA
shall promptly notify HBR of any change (collectively, the "CHANGES") in any
condition with respect to the Property or any portion thereof or of any event
or circumstance of which IWRA obtains knowledge subsequent to the Execution
Date that (a) materially
14
affects the Property or any portion thereof, or the use or operation of the
Property or any portion thereof, (b) makes any representation or warranty of
IWRA to HBR under Article 9 of this Agreement untrue or misleading in any
material respect or (c) makes any covenant or agreement of IWRA under this
Agreement incapable or substantially less likely of being performed, it being
expressly understood that IWRA's obligation to provide information to HBR
under this Section 4.5 shall in no way relieve IWRA of any liability for a
breach by IWRA of any of its representations, warranties, covenants or
agreements under this Agreement. In addition to the foregoing, on or before
the Closing Date, IWRA shall deliver to HBR written notice of any Changes of
which IWRA has knowledge that have occurred since or subsequent to the
Execution Date. In the event that any "Proceeding" of the character described
in Section 9.3 hereof is initiated prior to the Closing, IWRA shall promptly
advise HBR in writing. Notwithstanding anything to the contrary contained
herein, if IWRA becomes aware after the Execution Date of any Changes that
(i) make any representation or warranty set forth in this Agreement (which
was true, correct and complete as of the Execution Date) untrue, incorrect or
incomplete or (ii) make any covenant or agreement of IWRA under this
Agreement (which was, as of the Execution Date, capable of being performed)
incapable or substantially less likely of being performed, to the extent that
such Changes are not a result of IWRA's breach of this Agreement, such
Changes shall not constitute a default by IWRA hereunder and shall have no
liability to HBR with respect thereto, but IWRA shall promptly notify HBR of
such Changes.
4.6 NO DEFAULTS. IWRA shall not default with respect to the
performance of any obligation relating to the Property, including, without
limitation, the payment of all amounts due and the performance of all
obligations with respect to any existing indebtedness or existing leases or
contracts affecting the Property.
4.7 EXCLUSIVE NEGOTIATION. Until the earlier to occur of
the Closing Date or the termination of this Agreement, IWRA shall (i) remove
the Property from the market, (ii) not authorize or permit any affiliate,
agent, partner, officer, director or employee of, or any investment banker,
attorney or other advisor or representative of IWRA (collectively, the "IWRA
PARTIES") to, directly or indirectly, (A) solicit or initiate, or encourage
any inquiries regarding a transfer of the of the Property to any Person,
other than HBR, or (B) participate in any discussions or negotiations
regarding, or furnish to any Person any information with respect to, or take
any other action to facilitate the making of any proposal or offer that
constitutes, or may reasonably be expected to impede, interfere with,
frustrate, prevent, nullify or materially delay the transactions contemplated
hereby or which would reasonably be
15
expected to materially dilute the benefits to HBR of the transactions
contemplated hereby, and (iii) immediately advise HBR of any proposal, offer,
or request for information it receives (together with the details of such
proposal, offer or request for information) from any Person with respect to
the transfer of the Property. IWRA shall cease and shall immediately instruct
IWRA Parties to immediately cease and cause to be terminated any such
existing activities, discussions and negotiations with any Persons conducted
prior to the Execution Date.
4.8 INTENTIONALLY DELETED.
4.9 XXXX-XXXXX-XXXXXX ACT. As soon as practicable, IWRA
and HBR shall make any and all filings practicable under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX"). IWRA
will furnish to HBR, and HBR will furnish to IWRA, such necessary information
and reasonable assistance as either party may request in connection with its
preparation of necessary filings or submissions to any Governmental Authority
in connection with the transactions contem plated by this Agreement, the
Lease and/or the Management Agreement, including, without limitation, any
filings necessary under the provisions of the HSR Act. IWRA will supply HBR,
and HBR will supply IWRA, with copies of all correspondence, filings, or
communications (or memoranda setting forth the substance thereof) between
IWRA and its representatives or HBR and its representatives, on the one hand,
and the U.S. Federal Trade Commission, the Antitrust Division of the U.S.
Department of Justice, or any other Governmental Authority or members of its
staff, on the other hand with respect to the Agreement or the transactions
contemplated hereby.
4.10 FORMATION OF SUBSIDIARY. IWRA shall use its reasonable
best efforts (i) to form either (A) a single purpose subsidiary in which to
conduct any and all activities of IWRA other than as specified in Section
4.10(i)(B), or (B) a single purpose subsidiary to receive any and all fees and
payments contemplated by the Lease and the Management Agreement, and (ii) to
obtain all consents and approvals necessary from any Governmental Authority with
respect to the formation of such subsidiary. If IWRA elects to, and is otherwise
able to, form a subsidiary under clause (i)(B) of this Section 4.10, IWRA shall
assign the Lease and Management Agreement to such subsidiary (HBR's consent to
such assignment being hereby acknowledged).
4.11 REASONABLE EFFORTS. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use
all commercially
16
reasonable efforts to take, or cause to be taken (including through its
officers and directors and other appropriate personnel), all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, the Lease and the Management Agreement,
including, without limitation, (i) obtaining all necessary actions or
nonactions, waivers, consents and approvals from the Governmental Authorities
and the making of all necessary registrations and filings (including filings
with the Governmental Authorities, if any) and taking all reasonable steps as
may be necessary to obtain "Licenses" (as hereinafter defined) or waivers
from, or to avoid an action or proceeding by, any Governmental Authority
(including in respect of any pari-mutuel or gaming laws), (ii) obtaining all
necessary consents, approvals or waivers from third parties, (iii) defending
any Proceeding, whether judicial or administrative, challenging this
Agreement or the consummation of any of the transactions contemplated by this
Agreement, including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Authority vacated or reversed,
(iv) IWRA's introduction and facilitation of discussions between HBR and any
third parties reasonably requested by HBR, including, without limitation,
the Iowa Greyhound Association and all other Persons involved in the dog
racing activities conducted at the Property, and (v) the execution and
delivery of any additional instruments necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this
Agreement. Notwithstanding the foregoing, the parties acknowledge that HBR
and its "Affiliates" (as defined below) are not obligated by any provision of
this Agreement to obtain any consent, approval, license, waiver, order,
decree, determination of suitability or other authorization with respect to
any limited partner of any Affiliate of HBR. Nothing herein shall be deemed
to require HBR or IWRA or any of their respective Affiliates to take any
steps (including without limitation the expenditure of funds) or provide any
information to obtain any consent, approval, license, waiver, order, decree,
determination of suitability or other authorization, other than is customary
in the State of Iowa for such matters or are reasonably required to carry out
the intent of this Agreement. As used in this section, an "AFFILIATE" of any
Person means another Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first Person.
50 DESCRIPTION OF PROPERTY.
5.1 THE IMPROVEMENTS. As used herein, the term
"IMPROVEMENTS" shall mean all buildings, improvements, structures and
fixtures now or hereafter
17
located on or in the Land Parcel, including, without exception, the Gaming
Facility, but excluding the "Gaming Equipment" (as hereinafter defined).
5.2 THE REAL PROPERTY. As used herein, the term "REAL
PROPERTY" shall include (a) the Improvements, (b) all apparatus, equipment
and appliances affixed to and used in connection with the operation or
occupancy of the Land Parcel and/or any of the Improvements (including,
without limitation, heating, air conditioning or mechanical systems and
facilities used to provide any utility services, refrigeration, ventilation,
waste disposal or other services) and now or hereafter located on or in the
Land Parcel or any of the Improvements, and (c) all of IWRA's rights,
privileges and easements appurtenant to or used in connection with the Land
Parcel and/or any of the Improvements, including, without limitation, all
minerals, oil, gas and other hydrocarbon substances, all development rights,
air rights, water, water rights and water stock relating to the Land Parcel,
all strips and gores, all of IWRA's rights, title and interest in and to any
streets, alleys, easements, rights-of-way, public ways, or other rights of
IWRA appurtenant, adjacent or connected to the Land Parcel.
5.3 THE PERSONAL PROPERTY. As used herein, the term
"PERSONAL PROPERTY" shall mean all of that certain tangible personal
property, equipment and supplies owned by IWRA and situated at the Real
Property and used by IWRA in connection with the use, operation, maintenance
or repair of all or any portion of the Real Property, including without
limitation, computer equipment, service equipment, kitchen equipment,
decorations, china, glassware, linens, silverware, kitchen and bar small
goods, paper goods, printing, stationery, uniforms, furniture, fixtures,
appliances, fittings, furnishings, vehicles and inventories (including,
without limitation, all food and beverages, maintenance and housekeeping
supplies, and other supplies of all kinds, whether in use or held in reserve
storage for future use in connection with the operation of the Property);
PROVIDED, HOWEVER, the gaming equipment described on SCHEDULE 5.3 attached
hereto, together with such other gaming equipment, if any, which may only be
owned by the holder of the Gaming Licenses pursuant to applicable Law
(collectively "GAMING EQUIPMENT"), shall be retained by IWRA and not
transferred to HBR.
5.4 THE INTANGIBLE PROPERTY. As used herein, the term
"INTANGIBLE PROPERTY" shall mean all of that certain intangible property
owned by IWRA and used by IWRA in connection with all or any portion of the
Real Property and/or the Personal Property, including, without limitation,
all of IWRA's right, title and interest in, to and under: (a) all contract
rights (including, without limitation, the
18
Service Contracts), current accounts receivable (as determined in accordance
with generally accepted accounting principles), books, records, reports,
operating and training manuals, test results, environmental assessments, if
any, as-built plans, specifications and other similar documents and materials
relating to the use, operation, maintenance, repair, construction or
fabrication of all or any portion of the Real Property and/or the Personal
Property; (b) all rights, if any, in and to the trademarks, tradenames,
patents, and trade secrets; (c) all computer software used in the operation
and maintenance of all activities conducted on the Property (collectively,
the "SOFTWARE"); (d) all transferable business licenses, architectural, site,
landscaping or other permits, applications, approvals, authorizations and
other entitlements affecting any portion of the Real Property; (e) all
transferable guarantees, warranties and utility contracts relating to all or
any portion of the Real Property; (f) all human resources files and records
and all other records relating to any Transferred Employees; and (g)
goodwill, all customer lists and player lists, mailing lists, casino files,
copies of accounting records and copies of financial statements.
Notwithstanding the foregoing, all originals of books, accounting records and
other business records of IWRA may be retained by IWRA if HBR receives copies
of such documents to the extent pertaining to the Property or the Gaming
Facility, IWRA maintains such original documents to the extent pertaining to
the Property or the Gaming Facility in good condition after the Closing Date
and HBR is afforded such reasonable access to the original documents to the
extent pertaining to the Property or the Gaming Facility as it may request.
As used herein, "Intangible Property" shall not include the following
(collectively, the "EXCLUDED INTANGIBLE PROPERTY"): (i) U.S. patent number
5,908,354, dated June 1, 1999, which is owned by the General Manager, (ii)
the patent pending relating to activity boards used in the Gaming Equipment,
which patent has been filed by the General Manager, (iii) all federal
trademark registrations and/or pending applications for the following
trademarks and servicemarks currently being used in the Gaming Facility, each
of which is owned by the General Manager: "Lucky Dog" (Registration No.
2,134,991); "Wild Dog" (Registration No. 2,168,578), and "Wowzer"
(registration pending); and (iv) subject to Section 11.4 hereof, any claim
for tax refunds which relates to any period prior to the Closing Date.
5.5 NET WORKING CAPITAL. As used herein, "NET WORKING
CAPITAL" shall mean "current assets," as determined in accordance with
generally accepted accounting principles applied consistently with Seller's
past practice (including without limitation, the "Cash Amount" (as
hereinafter defined)), less "current liabilities," as determined in
accordance with generally accepted accounting princi-
19
ples consistent with Seller's past practice. The term "CASH AMOUNT" shall
mean cash in the amount of Six Million and No/100 Dollars ($6,000,000.00).
60 CONDITIONS TO CLOSING.
6.1 HBR'S CLOSING CONDITIONS. The obligation of HBR to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (collectively, "HBR'S
CLOSING CONDITIONS"), which conditions may be waived, or the time for
satisfaction thereof extended, by HBR only in a writing executed by HBR
(provided, however, that any such waiver shall not affect HBR's ability to
pursue any remedy it may have with respect to any breach hereunder by IWRA):
6.1.1 TITLE. Title Company shall be prepared and
irrevoca xxx committed to issue to HBR (with an effective date not earlier
than the Closing Date), an American Land Title Association extended coverage
owner's policy of title insurance in favor of HBR for the Real Property (the
"OWNER'S TITLE POLICY"), (a) showing fee title to the Real Property vested in
HBR or its nominee, (b) including those endorsements reasonably requested by
HBR (provided that such endorsements are available to HBR), (c) containing no
exceptions other than the applicable Permitted Exceptions, and (d) stating
liability coverage in such amounts as shall be determined by HBR (provided
that the aggregate amount of liability coverage shall not exceed the amount
of the Consideration less the value of the Personal Property (as set forth on
EXHIBIT "E"), the Intangible Property (as set forth on EXHIBIT "E"), and the
Net Working Capital).
6.1.2 IWRA'S DUE PERFORMANCE. All of IWRA's
representations and warranties set forth in this Agreement that are
qualified as to materiality shall be true, subject to such qualification, and
those not so qualified shall be true, correct and complete in all material
respects, in each case at and as of the Closing Date with the same force and
effect as though made at and as of the Closing Date (except to the extent a
representation or warranty speaks specifically as of an earlier date in which
case such representation and warranty shall be true, correct and complete as
of such date), and HBR shall have received a certificate signed on behalf of
IWRA by its President and its Chief Financial Officer (or other officer
serving similar functions) to such effect. On or prior to the Closing Date,
IWRA shall have complied with and/or performed all of the obligations,
covenants and agreements required on the part of IWRA to be complied with or
performed pursuant to the terms
20
of this Agreement, and HBR shall have received a certificate signed on behalf
of IWRA by its President to such effect.
6.1.3 PHYSICAL CONDITION OF PROPERTY. Subject to
the provisions of Article 13 hereof, the physical condition of the Property
shall be substantially the same on the Closing Date as on the Execution Date,
except for reasonable wear and tear.
6.1.4 FINANCING. HBR shall have received
financing on substantially the terms set forth in the "Commitment Letter" (as
hereinafter defined) or the "Best Efforts Letter" (as hereinafter defined).
6.1.5 BANKRUPTCY. No action or proceeding shall
have been commenced by or against IWRA under the federal bankruptcy code or
any state law for the relief of debtors or for the enforcement of the rights
of creditors and no attachment, execution, lien or levy shall have attached
to or been issued with respect to IWRA's interest in the Property or any
portion thereof.
6.1.6 DEED. On or before the first Business Day
immedi ately prior to the Closing, IWRA shall execute, acknowledge and
deliver the Deed to Escrow Agent.
6.1.7 XXXX OF SALE. On or before the first
Business Day immediately prior to the Closing, IWRA shall transfer to HBR all
of the Personal Property, the Intangible Property and the Cash Amount in each
case free of all liens and encumbrances (other than the applicable Permitted
Exceptions), pursuant to a xxxx of sale and assignment in the form of EXHIBIT
"H" attached hereto (the "XXXX OF SALE").
6.1.8 NON-FOREIGN AFFIDAVIT. On or before the
first Business Day immediately prior to the Closing, IWRA shall deliver to
HBR a non-foreign affidavit in the form of EXHIBIT "I" attached hereto,
executed by IWRA (the "NON-FOREIGN AFFIDAVIT").
6.1.9 TERMINATION OF AGREEMENTS. On or before
the first Business Day immediately prior to the Closing, other than the
agreements listed on SCHEDULE 6.1.9 attached hereto and incorporated herein
(the "ASSUMED AGREEMENTS"), IWRA shall terminate any and all agreements,
contracts and instruments with respect to the Property and shall, at their
own expense, pay any and all fees associated with
21
such termination. IWRA shall use its best efforts to cause the Current
Manager and the General Manager to take all reasonable steps necessary to
ensure an orderly transition.
6.1.10 REQUIRED CONSENTS. HBR shall have received
evidence of receipt, in form and substance reasonably acceptable to HBR, of
all consents, approvals and authorizations (collectively, the "CONSENTS")
necessary to (i) complete the purchase of the Property by HBR and the
completion of the other transactions contemplated by this Agreement, (ii)
execute and deliver the Lease, (iii) execute and deliver the Management
Agreement and (iv) execute and deliver a sponsorship agreement between IWRA
and Xxxxxx'x Iowa Management Company, Inc., a Nevada corporation ("XXXXXX'X
IOWA"), relating to the riverboat casino located in Council Bluffs, Iowa,
commonly known as Xxxxxx'x Casino Hotel, in the form of EXHIBIT "J" attached
hereto (the "SPONSORSHIP AGREEMENT"), which Consents shall include, without
limitation, (1) consents to HBR's assumption of the Assumed Agreements, (2)
any and all consents necessary from any Governmental Authority, including,
without limitation, the Gaming Commission, and (3) the consent of Harveys
Casino Resorts Compliance Committee. Notwithstanding the provisions of the
preceding sentence, if any Assumed Agreement designated on SCHEDULE 6.1.10
attached hereto and incorporated herein (collectively, the "DESIGNATED
AGREEMENTS") cannot be assigned to HBR without the consent of the other party
to such Designated Agreement and such consent cannot be obtained by IWRA
notwithstanding its exercise of reasonable efforts to obtain such consent,
including, without limitation, the payment of reasonable fees for such
assignment if required, then IWRA shall not be obligated to assign such
Designated Agreement, provided that such non-assignment does not: (y)
constitute or cause a default under such Designated Agreement or (z) have a
material adverse affect on HBR's ability to operate the Property following
the Closing. The parties hereby agree that all costs incurred in connection
with or arising out of obtaining consents or approvals for assigning or
assuming the Assumed Agreements shall be borne by IWRA.
6.1.11 LEASE. On or before the first Business Day
immediately prior to the Closing, IWRA shall have executed and delivered to
Escrow Agent the Lease.
6.1.12 MANAGEMENT AGREEMENT. On or before the
first Business Day immediately prior to the Closing, IWRA shall have executed
and delivered to Escrow Agent the Management Agreement.
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6.1.13 LICENSES. HBR shall have received all
licenses, permits, variances, exemptions, orders, and approvals
(collectively, the "LICENSES"), including, without limitation, all racing,
gaming, liquor and food service licenses, necessary to permit HBR to operate
the Gaming Facility after the Closing in substantially the same manner in
which it is being operated on the Execution Date and as contemplated to be
operated pursuant to the terms and provisions of this Agreement, the Lease
and the Management Agreement. All Licenses to be retained by IWRA, including,
without limitation, the racing and gaming license from the Gaming Commission
(the "GAMING LICENSE") to operate a casino and dog racing track at the Gaming
Facility shall be in good standing and in full force and effect. All Licenses
to be transferred to HBR from IWRA that are used in the operation of the
Property shall be in good standing and in full force and effect. IWRA shall
not be required to transfer the licenses set forth on SCHEDULE 6.1.13
attached hereto, which licenses are not transferable under their terms or
under applicable Law.
6.1.14 XXXX-XXXXX-XXXXXX ACT. All
authorizations, consents and permits required to perform this Agreement and
the transactions contemplated hereby and thereby under this Agreement or
under applicable law shall have been obtained and the required statutory
waiting period under the HSR Act, if applicable, shall have expired or been
terminated.
6.1.15 RENEWAL OF SPONSORSHIP AGREEMENT. On or
before the first Business Day immediately prior to the Closing, IWRA shall
have executed and delivered to Escrow Agent the Sponsorship Agreement.
6.1.16 NO MORATORIA. No moratorium, statute,
regulation, ordinance, legislation, order, judgment, ruling or decree of any
Governmental Authority shall have been enacted, adopted, issued, entered or
pending which is directed specifically at the Property and which would
reasonably be likely to have a material adverse effect on the current or
prospective value of the Property or impose any material limitation on the
ability of HBR to exercise full rights of ownership with respect to the
Property.
6.2 FAILURE OF HBR'S CLOSING CONDITIONS. Subject to HBR's
rights under Section 14.2 hereof with respect to any default by IWRA (including,
without limitation, any default in the performance of any covenant of IWRA set
forth in this Article 6), if (i) despite HBR's good faith efforts, any of HBR's
Closing Conditions have not been satisfied prior to the Closing or (ii) at any
time prior to the Closing, HBR determines, in its reasonable discretion, that,
despite HBR's good faith efforts,
23
any HBR's Closing Condition is not capable of being satisfied prior to the
Closing, then HBR may:
6.2.1 waive HBR's Closing Condition and close
Escrow in accordance with this Agreement; or
6.2.2 terminate this Agreement by written notice
to IWRA and Escrow Agent, in which event all documents, instruments and funds
delivered into Escrow shall be returned to the party that delivered the same
into Escrow, and IWRA shall pay for all of the cancellation charges, if any,
of Escrow Agent and Title Company, in which case the parties shall be
relieved from all liability hereunder, except for liabilities arising under
Sections 4.1.2 and 8.7 and Article 15 hereof, which provisions shall survive
such termination.
6.3 IWRA'S CLOSING CONDITIONS. The obligation of IWRA to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "IWRA'S CLOSING
CONDITIONS"), which conditions may be waived, or the time for satisfaction
thereof extended, by IWRA only in a writing executed by IWRA (provided,
however, that any such waiver shall not affect IWRA's abilities to pursue any
remedy it may have with respect to any breach hereunder by HBR):
6.3.1 HBR'S DUE PERFORMANCE. All of the
representations and warranties of HBR set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date,
and HBR, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the
part of HBR to be complied with or performed pursuant to the terms of this
Agreement, and IWRA shall have received a certificate signed on behalf of HBR
by its President and its Chief Financial Officer (or other officer serving
similar functions) to such effect. On or prior to the Closing Date, HBR shall
have complied with and/or performed all of the obligations, covenants and
agreements required on the part of HBR to be complied with or performed
pursuant to the terms of this Agreement, and IWRA shall have received a
certificate signed on behalf of HBR by its President to such effect.
6.3.2 CONSENTS. IWRA shall have received all the
Consents.
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6.3.3 Xxxx-Xxxxx-Xxxxxx Act. All authorizations,
consents and permits required to perform this Agreement and the transactions
contemplated hereby and thereby under this Agreement or under applicable Law
shall have been obtained and the required statutory waiting period under the
HSR Act, if applicable, shall have expired or been terminated.
6.3.4 BANKRUPTCY. No action or proceeding shall
have been commenced by or against HBR under the federal bankruptcy code or
any state law for the relief of debtors or for the enforcement of the rights
of creditors and no attachment, execution, lien or levy shall have attached
to or been issued with respect to HBR's interest in the Property or any
portion thereof.
6.3.5 LEASE. On or before the first Business Day
immedi ately prior to the Closing, HBR shall have executed and delivered to
Escrow Agent the Lease.
6.3.6 MANAGEMENT AGREEMENT. On or before the
first Business Day immediately prior to the Closing, Manager shall have
executed and delivered to Escrow Agent the Management Agreement.
6.3.7 LETTER OF CREDIT. On or before the first
Business Day immediately prior to the Closing, HBR shall have delivered to
Escrow Agent the Letter of Credit with instruction to Escrow Agent to deliver
the Letter of Credit to L/C Escrow Agent immediately after the Closing.
6.3.8 RENEWAL OF SPONSORSHIP AGREEMENT. On or
before the first (1st) Business Day immediately prior to the Closing,
Xxxxxx'x Iowa shall have executed and delivered to Escrow Agent the
Sponsorship Agreement.
6.3.9 DELIVERIES. On or before the first
Business Day immediately prior to the Closing, HBR shall have delivered to
Escrow Agent or IWRA, as the case may be, such other documents and
instruments as are required to be delivered by HBR pursuant to the terms of
this Agreement.
6.3.10 CLOSING CONSIDERATION. On or before 11:00
a.m. (Iowa time) on the date on which the Closing is schedule to occur (the
"PAYMENT TIME"), cash, by wire transfer in immediately available funds, in an
amount (the "CLOSING CONSIDERATION") equal to the sum of the Consideration
and any amounts required by this Agreement for closing and title costs MINUS
the sum of the differ ence, if any,
25
between the Cash Amount and the cash located at the Property at the
"Effective Time" (as hereinafter defined) and the Holdback; PROVIDED,
HOWEVER, if the Closing Consideration is not delivered by HBR to Escrow Agent
on or before the Payment Time, HBR shall, at its election, either (a)
reschedule the Closing to the immediately following Business Day, or (b)
proceed with the Closing, in which case the Closing Consideration shall
accrue interest at six percent (6%) per annum, commencing on the date Escrow
Agent received the Closing Consideration from HBR and terminating on the day
Escrow Agent delivers the Closing Consideration to IWRA.
6.4 FAILURE OF IWRA'S CLOSING CONDITIONS. Subject to IWRA's
rights under Section 14.1 hereof with respect to any default by HBR
(including, without limitation, any default in the performance of any
covenant by HBR set forth in this Article 6), if, despite IWRA's good faith
efforts, any of IWRA's Closing Conditions have not been fulfilled within the
applicable time periods, IWRA may:
6.4.1 waive IWRA's Closing Condition and close
Escrow in accordance with this Agreement, without adjustment or abatement of
the Consideration; or
6.4.2 terminate this Agreement by written notice
to HBR and Escrow Agent, in which event all documents, instruments and funds
delivered into Escrow shall be returned to the party that delivered the same
into Escrow, and HBR shall pay for all of the cancellation charges, if any,
of Escrow Agent and Title Company, in which case the parties shall be
relieved from all liability hereunder, except for liabilities arising under
Sections 4.1.2 and 8.7 and Article 15 hereof, which provisions shall survive
such termination.
7. TERMINATION.
7.1 TERMINATION EVENTS. This Agreement may be terminated
and abandoned at any time prior to the Closing:
7.1.1 by the mutual written consent of HBR and
IWRA;
7.1.2 by HBR at any time on or before the Due
Diligence Termination Date if HBR determines in its reasonable discretion
that, as a result of items disclosed in the final Phase I Report which were
not previously disclosed to HBR in the draft Phase I Environmental Site
Assessment, dated August 25, 1999, prepared by Terracon and in that certain
update letter thereto, dated August 26, 1999,
26
each delivered to HBR on August 26, 1999, all or any portion of the Property
is not acceptable to HBR, in which case (a) IWRA shall pay the cancellation
charges, if any, of Escrow Agent and Title Company and (b) IWRA shall
reimburse HBR for its reasonable out-of pocket costs and expenses (including,
without limitation, reasonable attorneys' fees, charges and disbursements)
incurred in connection with the negotiation of the transaction contemplated
by this Agreement and HBR's due diligence efforts; PROVIDED that the amount
of such reimbursement shall not exceed $150,000;
7.1.3 by HBR or IWRA if (i) any Governmental
Authority, the consent of which is a condition to the obligations of HBR and
IWRA to consummate any of the transactions contemplated by this Agreement,
the Lease, the Management Agreement or the Sponsorship Agreement, shall have
determined not to grant its consent and all appeals of such determination
shall have been taken and have been unsuccessful, or (ii) any court of
competent jurisdiction shall have issued an order, judgment or decree (other
than a temporary restraining order) restraining, enjoining or otherwise
prohibiting all of the transactions contemplated by this Agreement, the Lease
or the Management Agreement, and such order, judgment or decree shall have
become final and nonappealable;
7.1.4 by HBR or IWRA if a Governmental Authority
has required a change to be made to this Agreement, the Lease, the Management
Agreement and/or the transactions contemplated by such documents, and either
party, after prompt and diligent negotiations held in good faith with the
other party shall have determined that any required changes will cause such
party to suffer economic detriment of more than $50,000 and such party's
business objectives and economic position as contemplated herein and in the
Lease and the Management Agreement cannot be preserved;
7.1.5 by HBR if, on the advice of its counsel, it
determines that there is a reasonable likelihood that approval of the
transactions contemplated in this Agreement, the Lease and the Management
Agreement will not be granted by the applicable Governmental Authorities
within sixty (60) days of HBR's first submission of filings under the HSR Act;
7.1.6 by HBR if there has been a material breach
by IWRA of any representation, warranty, covenant or agreement set forth in
this Agreement, which breach has not been cured within ten (10) Business Days
following receipt by
27
the breaching party of notice of such breach, in which case IWRA shall pay
the cancellation charges, if any, of Escrow Agent and Title Company;
7.1.7 by IWRA if there has been a material breach
by HBR of any representation, warranty, covenant or agreement set forth in
this Agreement, which breach has not been cured within ten (10) Business Days
following receipt by the breaching party of notice of such breach, in which
case HBR shall pay the cancellation charges, if any, of Escrow Agent and
Title Company;
7.1.8 by HBR pursuant to the terms of Section
4.2.3, Section 6.2, or Article 13;
7.1.9 by IWRA pursuant to the terms of Section
6.4; and
7.1.10 by HBR or IWRA if the Closing has not
occurred by March 31, 2000; provided, however, that (i) HBR shall not be
entitled to terminate this Agreement pursuant to this Section 7.1.10 if a
knowing or willful breach of this Agreement by HBR has prevented the Closing
from occurring by such date, and (ii) IWRA shall not be entitled to terminate
this Agreement pursuant to this Section 7.1.10 if a knowing or willful breach
of this Agreement by IWRA has prevented the Closing from occurring by such
date.
7.2 EFFECT OF TERMINATION. In the event of termination of
this Agreement by HBR or IWRA as provided in Section 7.1 hereof, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of HBR, IWRA or their respective officers or
directors, except as specified in Section 7.1; provided, that if this
Agreement is so terminated by a party because one or more of the conditions
to such party's obligations hereunder is not satisfied as a result of the
other party's willful failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies for
breach of contract or otherwise, including, without limitation, damages
relating thereto, shall survive such termination unimpaired.
7.3 PAYMENT OF COSTS UPON TERMINATION. In connection with
any termination of this Agreement for any reason permitted hereunder (other
than termination pursuant to Sections 7.1.2, 7.1.6 or 7.1.7), the parties
shall share all "Closing Costs" (as hereinafter defined) and other costs as
provided in Section 8.7 hereof, including cancellation charges, if any, of
Escrow Agent and Title Company.
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8. CLOSING.
8.1 CLOSING DATE. The Closing shall take place on the first
Business Day after the day on which all of HBR's Closing Conditions and
IWRA's Closing Conditions have been fully satisfied or waived in writing, or
such other date as the parties hereto may agree (in which case the parties
shall prorate all closing adjustments as of the last day of the accounting
period in which the mutually agreed upon closing date falls); provided,
however, that the Closing shall not be later than March 31, 2000 (the
"OUTSIDE CLOSING DATE"), unless at such time (i) the transactions
contemplated by this Agreement, the Lease and the Management Agreement are
subject to review by any Governmental Authority pursuant to the HSR Act or
(ii) HBR's Closing Condition specified in Section 6.1.14 hereof has not been
satisfied, then in either such case, the Outside Closing Date shall
automatically be extended to June 30, 2000. As used herein, the following
terms shall have the following meanings: (a) the "CLOSING" shall mean the
closing of the transactions contemplated by this Agreement, including,
without limitation, the recordation of the Deed in the Official Records of
Pottawattamie County, Iowa, (the "OFFICIAL RECORDS"); and (b) the "CLOSING
DATE" shall mean the date upon which the Closing actually occurs.
Notwithstanding the actual time of day at which the Closing occurs, the
Closing will be deemed to have occurred at 12:01 a.m. on the Closing Date
(the "EFFECTIVE TIME").
8.2 DELIVERIES BY IWRA. On or before the first Business Day
immediately prior to the Closing, IWRA, at its sole cost and expense, shall
deliver or cause to be delivered into Escrow the following documents and
instruments, as applicable, each dated as of the Closing Date, in addition to
all other items and payments required by this Agreement to be delivered by
IWRA at the Closing:
8.2.1 DEED. An original executed and
acknowledged Deed from IWRA, conveying all its interest in the Real Property
to HBR;
8.2.2 NON-FOREIGN AFFIDAVIT. An original
executed Non-Foreign Affidavit from IWRA;
8.2.3 XXXX OF SALE. Four (4) original executed
counterparts of the Xxxx of Sale, executed by IWRA;
8.2.4 GROUND WATER HAZARD STATEMENT. Four (4)
original executed counterparts of the Ground Water Hazard Statement, executed
by IWRA;
29
8.2.5 DECLARATION OF VALUE. Four (4) original
executed counterparts of the Declaration of Value, executed by IWRA;
8.2.6 LEASE. Four (4) original executed
counterparts of the Lease, executed by IWRA;
8.2.7 MANAGEMENT AGREEMENT. Four (4) original
and executed counterparts of the Management Agreement, executed by IWRA;
8.2.8 OFFICER'S CERTIFICATE. An original
executed Officer's Certificate, in the form attached hereto as EXHIBIT "K"
executed by IWRA;
8.2.9 EVIDENCE OF TERMINATION. Evidence of the
termina tion of any management agreements affecting the Property, including
without limitation, the management agreement with Current Manager (other than
the Man agement Agreement);
8.2.10 PROOF OF AUTHORITY. Such proof of IWRA's
authority and authorization to enter into this Agreement and the transactions
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or
certificates on behalf of IWRA to act for and bind IWRA as may be reasonably
required by Title Company, HBR, or both; and
8.2.11 OTHER. Such other documents and
instruments (including, without limitation, affidavits reasonably required by
Title Company to facilitate the issuance of the Owner's Title Policy at the
Closing prior to the recordation of the Deed), signed and properly
acknowledged by IWRA, if appropriate, as may be reasonably required by HBR,
Title Company, Escrow Agent, or otherwise in order to effectuate the
provisions of this Agreement and the Closing of the transactions contemplated
herein.
8.3 DELIVERIES BY HBR. On or before the first Business Day
immediately prior to the Closing Date (except as to the Closing Consideration
which shall be delivered on or before the Payment Time), HBR, at its sole cost
and expense, shall deliver or cause to be delivered into Escrow the following
funds, documents and instruments, each dated as of the Closing Date, in addition
to the other items and payments required by this Agreement to be delivered by
HBR at the Closing:
30
8.3.1 CASH. Cash in an amount equal to the
Closing Consideration in accordance with Section 6.3.10 hereof;
8.3.2 LEASE. Four (4) original executed
counterparts of the Lease, executed by HBR;
8.3.3 MANAGEMENT AGREEMENT. Four (4) original and
executed counterparts of the Management Agreement, executed by Manager;
8.3.4 LETTER OF CREDIT. The Letter of Credit.
8.3.5 RENEWAL OF SPONSORSHIP AGREEMENT. Four (4)
original and executed counterparts of the Sponsorship Agreement, executed by
Xxxxxx'x Iowa.
8.3.6 PROOF OF AUTHORITY. Such proof of HBR's
authority and authorization to enter into this Agreement and the transactions
contemplated hereby, and Manager's authority and authorization to enter into
the Management Agreement and carry out the transactions contemplated thereby,
and such proof of the power and authority of the individual(s) executing or
delivering any instruments, documents or certificates on behalf of HBR or
Manager, respectively, to act for and bind HBR or Manager, respectively, as
may be reasonably required by Title Company, IWRA, or both; and
8.3.7 OTHER. Such other documents and
instruments, signed and properly acknowledged by HBR, if appropriate, as may
be reasonably required by IWRA, Title Company, Escrow Agent, or otherwise in
order to effectuate the provisions of this Agreement and the Closing of the
transactions contemplated herein.
8.4 ACTIONS BY ESCROW AGENT. Provided that Escrow Agent
shall not have received written notice from HBR or IWRA of the failure of any
condition to the Closing or of the termination of the Escrow and this
Agreement, when HBR and IWRA have deposited into Escrow the documents and
funds required by this Agreement and Title Company is irrevocably and
unconditionally committed to issue the Owner's Title Policy effective as of
the Closing Date, Escrow Agent shall, in the order and manner herein below
indicated, take the following actions:
8.4.1 FUNDS. Disburse all funds as follows:
31
8.4.1.1 pursuant to the closing statement to be
prepared by Escrow Agent and approved in writing by both HBR and IWRA (the
"CLOSING STATEMENT"), retain for Escrow Agent's own account all escrow fees
and costs, disburse to Title Company the fees and expenses incurred in
connection with the issuance of the Owner's Title Policy, and disburse to any
other Persons entitled thereto, as expressly stated on the Closing Statement,
the amount of any other Closing Costs;
8.4.1.2 disburse funds necessary to discharge and
release any and all Liens against the Property (other than the Permitted
Exceptions);
8.4.1.3 deliver to IWRA, by wire transfer of
immediately available funds, in accordance with and subject to the
provisions of Section 6.3.10, the Closing Consideration (subject to
prorations and adjustments as provided herein);
8.4.1.4 disburse to HBR or IWRA, as the case may
be, any remaining funds in the possession of Escrow Agent after payments
pursuant to Sections 8.4.1.1, 8.4.1.2 and 8.4.1.3 hereof have been completed;
and
8.4.2 RECORDING. Cause the Deed and any other documents
that the parties hereto may mutually direct to be recorded in the Official
Records and obtain conformed copies thereof for distribution to HBR and IWRA.
IWRA hereby agrees that if Title Company cannot insure the "gap period" as
provided in Section 8.4.1 hereof, the funds shall not be disbursed as
provided in Section 8.4.1 unless and until Escrow Agent and HBR have received
confirmation that the Deed has been recorded in the Official Records.
8.4.3 DELIVERY OF DOCUMENTS. Deliver: (a) to IWRA, (i)
two originals of all documents deposited into Escrow (other than the Deed and
the Non-Foreign Affidavit) and (ii) one conformed copy of each document
recorded pursuant to the terms hereof; and (b) to HBR, (i) two originals of
all documents deposited into Escrow (other than the Deed, the Officer's
Certificate, and the Non-Foreign Affidavit), (ii) the original Non-Foreign
Affidavit, and (iii) one conformed copy of each document recorded pursuant to
the terms hereof.
8.4.4 OWNER'S TITLE POLICY. Cause the Title Company to
issue and deliver the Owner's Title Policy to XXX.
00
8.4.5 RECORDED DEED. Cause the original recorded
Deed to be delivered to HBR.
8.5 WORKING CAPITAL ADJUSTMENTS TO THE CONSIDERATION. The
Consideration shall be increased by the amount, if any, that Net Working
Capital as of the Closing Date is greater than $1,600,000 and shall be
decreased by the amount, if any, that Net Working Capital as of the Closing
Date is less than $1,600,000.
8.6 POST CLOSING ADJUSTMENTS.
8.6.1 PREPARATION OF AUDITED BALANCE SHEET. As
soon as possible after the Closing, but not later than sixty (60) days after
the Closing, IWRA shall permit HBR's accountants ("HBR'S ACCOUNTANT") to
access its books and records of the Property for the purpose of preparing a
balance sheet (the "AUDITED BALANCE SHEET") of the Bluffs Run component of
IWRA's books and records as of the Closing Date (without giving effect to the
transactions contemplated by this Agreement). HBR's Accountant shall prepare
the Audited Balance Sheet in accordance with generally accepted accounting
principles consistently applied with IWRA's past practice. HBR's Accountant
shall deliver the Audited Balance Sheet to IWRA, and IWRA and its accountants
("IWRA'S ACCOUNTANT") shall have twenty (20) Business Days to review the
Audited Balance Sheet and the work papers of HBR's Accountant and to deliver
written notice (the "DISPUTE NOTICE") of any disagreements specifying in
reasonable detail the nature and extent of such disagreement. If IWRA's
Accountant and HBR's Accountant cannot resolve such disagreement within ten
(10) days of HBR's Accountant receipt of the Dispute Notice, the items of
disagreement shall be referred for final determination to an independent
accounting firm (the "INDEPENDENT ACCOUNTANT") as HBR's Accountant and IWRA's
Accountant shall mutually determine. The Audited Balance Sheet shall be
deemed to be binding on the parties upon (i) IWRA's failure to deliver to HBR
the Dispute Notice within twenty (20) Business Days of IWRA's receipt of the
Audited Balance Sheet, (ii) resolution of any disagreement by mutual
agreement of HBR's Accountant and IWRA's Accountant after IWRA's timely
delivery of the Dispute Notice, or (iii) notification by the Independent
Accountant of its final determination of the items of disagreement submitted
to it.
8.6.2 FINAL ADJUSTMENTS. If the Audited Balance
Sheet shows that HBR is entitled to additional funds in connection with any
obligations or assets of IWRA, then such funds shall be paid to HBR by IWRA
on or before the fifth (5th) day after the date the Audited Balance Sheet is
deemed final and binding on the
33
parties. If the Audited Balance Sheet shows that IWRA is entitled to
additional funds in connection with any obligations or assets of IWRA, then
such funds shall be paid to IWRA by HBR on or before the fifth (5th) day
after the date the Audited Balance Sheet is deemed final and binding on the
parties.
8.7 CLOSING COSTS. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without
limitation, its own attorneys' and advisors' fees, charges and
disbursements), except the following costs (the "CLOSING COSTS"), which shall
be allocated between the parties as follows:
8.7.1 JOINT COSTS AND EXPENSES. The following
costs and expenses shall be paid one-half (1/2) by IWRA and one-half (1/2) by
HBR: (i) Escrow Agent's escrow fees and costs, (ii) the cost of the
environmental assessment, the engineering and structural report, and the
Survey; (iii) any filing fees payable in connection with any applications or
notifications under the HSR Act; (iv) the cost of the Abstract of Title, the
Title Opinion and the Owner's Title Policy; (v) recording fees incurred for
the recordation of the memorandum of lease required pursuant to the Lease and
(vi) the cost of the Independent Accountant, if any.
8.7.2 IWRA'S COSTS AND EXPENSES. The following
costs and expenses shall be paid by IWRA: (i) all documentary transfer,
stamp, sales and other taxes related to the transfer of the Property, (ii)
any and all amounts or penalties due and payable in connection with the
discharge and satisfaction of any Liens (other than Permitted Exceptions) in
accordance with the terms hereof; (iii) except as provided in Section 8.7.3
below, all recording fees incurred for the recordation of documents and
instruments to cure defects in title.
8.7.3 HBR'S COSTS AND EXPENSES. The following
costs and expenses shall be paid by HBR: (i) all recording fees incurred in
connection with the recordation of the Deed; (ii) the cost of the Title
Opinion; PROVIDED, HOWEVER, at the Closing, HBR shall be credited with
one-half (1/2) the cost of the Title Opinion and (iii) costs incurred by HBR
in its application for a liquor license for the Property.
8.8 DELIVERIES OUTSIDE OF ESCROW. IWRA shall deliver
possession of the Property, subject only to the Permitted Exceptions, to HBR
upon the Closing. Further, IWRA hereby covenants and agrees to deliver to
HBR, on or prior to the Closing, the following items:
34
8.8.1 POSSESSION OF THE PROPERTY. IWRA shall
give, assign and transfer to HBR complete possession of the Property at the
actual time of Closing, provided that such transfer of possession shall be
deemed to have occurred at the Effective Time.
8.8.2 TRANSFER OF GAMING OPERATIONS. At the
Effective Time, the cash or tokens in the hoppers, buckets (or slot drops)
and the xxxx acceptors in all slot machines shall be counted (by emptying and
counting the cash in the loads of all machines) by IWRA and verified by HBR.
8.8.3 CASH AMOUNT. At the actual time of
Closing, the Cash Amount shall be transferred to HBR from IWRA.
8.8.4 INTANGIBLE PROPERTY. The Intangible
Property, including, without limitation, the original Property Documents.
8.8.5 PERSONAL PROPERTY. The Personal Property,
including, without limitation, any and all keys, pass cards, remote
controls, security codes, computer software and other devices relating to
access to the Improvements.
8.8.6 NOTICES. A letter to the vendors of the
Assumed Agreements in form and substance reasonably acceptable to HBR, duly
executed by IWRA, dated as of the Closing Date and addressed to such vendors,
informing such vendors of the assignment of the Assumed Agreements to XXX.
0. IWRA'S REPRESENTATIONS AND WARRANTIES.
IWRA represents and warrants to and agrees with HBR, as of
the Execution Date and as of the Closing Date, as follows:
9.1 EXISTING CONTRACTS. The schedule attached hereto as
SCHEDULE 9.1 (the "CONTRACTS SCHEDULE") is true, correct and complete with
respect to all service, maintenance, repair, management, supply and other
contracts (including, without limitation, service contracts for the Property
(the "SERVICE CONTRACTS")) to which IWRA is a party and for which Gaming
Commission approval and/or consent was necessary. IWRA has delivered to HBR
true, correct and complete copies of all service, maintenance, repair,
management, supply and other contracts (including, without limitation, all
Service Contracts) to which IWRA or its agent is a party and to the extent
that the same were in IWRA's possession and IWRA has used its best
35
efforts to cause its agents, auditors or independent contractors to deliver
the same to HBR after a diligent review and examination of their respective
files and records.
9.2 INSURANCE. There are currently in effect such insurance
policies for the Property as are customarily maintained with respect to
similar properties. True, correct and complete copies of all insurance
policies maintained by IWRA with respect to the Property shall be made
available to HBR as part of the Property Documents. All premiums due on such
insurance policies have been paid by IWRA (or its agents) and IWRA will
maintain such insurance policies from the Execution Date through the Closing
Date or earlier termination of this Agreement. IWRA has not received and has
no knowledge of any notice or request from any insurance company requesting
the performance of any work or alteration with respect to the Property. IWRA
has not received any notice from any insurance company concerning, and IWRA
is not aware of, any defects or inadequacies in the Property, which, if not
corrected, would result in the termination of insurance coverage or increase
its cost.
9.3 LITIGATION. Other than as shown on SCHEDULE 9.3
attached hereto and incorporated herein, there are no "Proceedings" (as
hereinafter defined) before any judicial or quasi-judicial body, by any
Governmental Authority or other third party, pending, or to IWRA's knowledge,
threatened, against or affecting all or any portion of the Property and, to
IWRA's knowledge, there is no basis for any such Proceeding. There are no
Proceedings pending, contemplated or threatened by IWRA in connection with
all or any portion of the Property or IWRA's ownership, rights, use,
development or maintenance thereof, including, without limitation, tax
reduction proceedings; and, except as provided in Section 11.4 hereof, from
and after the date hereof, IWRA shall not commence or allow to be commenced
on its behalf or join in any Proceeding with respect to all or any portion of
the Property without the prior written consent of HBR, which consent may be
withheld in HBR's sole and absolute discretion, including, without
limitation, any Proceeding regarding the current tax rates applicable to
income generated from riverboat casinos and land-based casinos. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other Proceedings are pending, or,
to IWRA's knowledge, threatened, against IWRA. As used herein, "PROCEEDING"
means any action, arbitration, audit, hearing, investigation, litigation, or
suit (whether civil, criminal, administrative, investigative, or informal)
com menced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Authority or arbitrator, and any appeal of the
foregoing.
36
9.4 COMPLIANCE WITH LAWS. To IWRA's knowledge, the Property
is, in all material respects, in compliance with all Laws, including, without
limitation, (a) the Americans with Disabilities Act, 42 U.S.C. ss. 12102, et
seq., together with all rules, regulations and official interpretations
promulgated pursuant thereto, (b) all Laws with respect to zoning, building,
fire, life safety, health codes and sanitation, and (c) all laws with respect
to dog racing, pari-mutuel gaming, and the operation of a casino including
without limitation, gaming licenses, liquor licenses, and licenses to operate
food establishments. IWRA has not received any notice of, and IWRA has no
knowledge of, any condition currently or previously existing on the Property
or any portion thereof which may give rise to any violation of any existing
Law applicable to the Property if it were disclosed to the authorities having
jurisdiction over the Property.
9.5 CONDEMNATION; SPECIAL ASSESSMENTS. IWRA has no knowledge
of any pending or contemplated condemnation, eminent domain or similar
proceeding or special assessment which would affect the Property or any part
thereof in any way whatsoever. To IWRA's knowledge, there are no presently
planned public improvements that would or could result in the creation of a
special assessment or similar lien on the Property.
9.6 TOXIC OR HAZARDOUS MATERIALS.
9.6.1 DEFINITIONS.
(a) "ENVIRONMENTAL CLAIM" means any claim,
action, cause of action, investigation or notice (written or oral) by any
Person alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries, or
penalties) arising out of, based on or resulting from (i) the manufacture,
treatment, processing, distribution, use, transport, handling, deposit,
storage, disposal, leaking or other presence, or release into the environment
of any "Material of Environmental Concern" (as hereinafter defined) in, at,
on, under, from or about any location, whether or not owned or operated by
IWRA, or (ii) circumstances forming the basis of any violation or alleged
violation of any "Environmental Law" (as hereinafter defined).
(b) "ENVIRONMENTAL LAWS" means all federal,
state, local and foreign laws and regulations relating to pollution or
protection of human health or the environment, including, without limitation,
laws and regulations relating to
37
emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern.
(c) "MATERIAL OF ENVIRONMENTAL CONCERN" means
chemicals, pollutants, contaminants, wastes, toxic or hazardous substances,
petroleum and petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, lead or lead-based paints or materials, and radon.
9.6.2 REPRESENTATIONS AND WARRANTIES. To IWRA's
and Current Manager's knowledge, IWRA is in full compliance with all
applicable Environmental Laws relating to the Property, which compliance
includes, but is not limited to, the possession and compliance therewith by
IWRA of all permits and other governmental authorizations required under
applicable Environmental Laws. IWRA has not received any notice, whether from
a Governmental Authority, citizens group, employee or other Person, that
alleges that IWRA is not in full compliance with Environmental Laws and, to
IWRA's knowledge, there are no circumstances that may prevent or interfere
with such full compliance in the future. Neither IWRA nor the Current Manager
has any knowledge of any Environmental Claim pending or threatened with
regard to the Property. To IWRA's and Current Manager's knowledge, there are
no past or present actions, activities, circumstances, conditions, events or
incidents relating to the Property, including, without limitation, the
manufacture, generation, treatment, processing, distribution, use, transport,
handling, deposit, storage, disposal, leaking, or other presence or release
of any Material of Environmental Concern, that could form the basis of any
Environmental Claim against IWRA or against any Person, including, without
limitation, Persons whose liability for such Environmental Claim IWRA may
have retained or assumed either contractually or by operation of law. Without
in any way limiting the generality of the foregoing, to IWRA's knowledge, (a)
IWRA has not stored, disposed of or arranged for the disposal of any Material
of Environmental Concern on the Property (except for cleaning and maintenance
supplies maintained in the ordinary course of business by IWRA), (b) there
are no underground storage tanks located on the Property, (c) there is no
asbestos contained in or forming part of any Improvement, including, without
limitation, the Gaming Facility, any building component, structure or office
space on the Property, (d) no polychlorinated biphenyls (PCBs) are used or
stored at the Property, (e) there are no Environmental Claims or
circumstances in the vicinity of the Property relating to environmental
contamination or clean-up affecting or compromising the value of the
Property, (f) IWRA has provided to HBR all
38
assessments, reports, data, results of investigations or audits, or other
information that is in the possession of or reasonably available to IWRA
relating to the environ mental matters at or the environmental condition of
the Property, and (g) there are no "xxxxx," "solid waste disposal sites" or
"private burial sites," each as defined in the Iowa Code (1999), as may be
amended, supplemented or modified (the "IOWA CODE") or regulations
promulgated pursuant thereto, located on the Property.
9.7 DISCLOSURE. To IWRA's knowledge without investigation,
IWRA has disclosed to HBR all information relating to the Property that would
reasonably be expected to have a material adverse effect on the Property.
9.8 NO CONFLICTS. The execution and delivery of this
Agreement by IWRA, the consummation of the transactions herein contemplated
to be per formed by IWRA, and compliance with the terms of this Agreement by
IWRA will not conflict with, or, with or without notice or the passage of
time or both, result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, deed of trust, mortgage, loan
agreement, or other document, instrument or agreement, oral or written, to
which IWRA is a party or by which IWRA or its assets are bound, or any
regulation, judgment, order or decree of any Governmental Authority having
jurisdiction over IWRA or all or any portion of the Property.
9.9 DUE ORGANIZATION; CONSENTS. IWRA is a nonprofit
corporation duly organized, validly existing and in good standing under the
laws of the State of Iowa, with its principal place of business in the State
of Iowa and IWRA has never existed or operated under any other name. All
requisite action has been taken by IWRA in connection with entering into this
Agreement, and will be taken prior to the Closing in connection with, the
execution and delivery of the instruments referenced herein and the
consummation of the transactions contemplated hereby. Other than the consents
listed on SCHEDULE 9.9 attached hereto and incorporated herein, no consent of
any partner, shareholder, beneficiary, creditor, investor, judicial or
administrative body, Governmental Authority or other party is required in
connection with the execution by IWRA of this Agreement and/or the
performance by IWRA of its obligations hereunder.
9.10 IWRA'S AUTHORITY; VALIDITY OF AGREEMENTS. IWRA has
full right, power and authority to transfer, contribute and convey the
Property to HBR as provided in this Agreement, to carry out its obligations
hereunder and to execute, deliver and perform, and enter into and consummate,
all of the documents and transactions contemplated by this Agreement. The
individual(s) executing this Agreement and the instruments referenced herein
on behalf of IWRA have the legal
39
power, right and actual authority to bind IWRA to the terms hereof and
thereof. This Agreement is, and all instruments, documents and agreements to
be executed by IWRA in connection herewith shall be, duly authorized,
executed and delivered by IWRA and shall be valid, binding and enforceable
obligations of IWRA, subject to any limitation by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally.
9.11 FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. IWRA is
not a foreign person within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended (the "CODE").
9.12 LEASES. Other than the leases listed on SCHEDULE 9.12
attached hereto and incorporated herein, IWRA has not entered into any
leases, licenses, tenancies or other occupancy agreements (whether written or
oral) now in effect at the Property. There are no parties in possession of
any portion of the Property other than IWRA and the Current Manager.
9.13 GAMING LAWS. IWRA and its directors, officers, and
other persons performing management functions on behalf of IWRA hold all
permits, registrations, findings of suitability and licenses necessary under
"Gaming Laws" (as defined below) to operate a land-based casino, a dog track
and all functions incident thereto on the Property, as currently conducted,
and each such permit, registration, finding of suitability and license is in
full force and effect, and IWRA has not received any notice of revocation in
respect thereof. "GAMING LAWS" means any federal, state, local or foreign
statute, ordinance, rule, regulation, permit, consent, registrations,
findings of suitability, approval, license, judgement, order, decree,
injunction, or other authorization, including any condition or limitation
placed thereon, governing or relating to the pari-mutuel, casino and gaming
activities and operations on the Property, including any applicable state
gaming law and any federal or state laws relating to currency transactions.
9.14 YEAR 2000 COMPLIANCE. Xxx "Xxxxxx Xxx Xxxxxx X0X
Status Sheet" attached hereto as EXHIBIT "L" (the "STATUS REPORT")
represents, as of the Execution Date, the year 2000 readiness status of
certain selected items. In particular, the column entitled "Status" on such
Status Report contains the following categories: "Awaiting Vendor Response,"
"Letter on File," "Testing Complete," and "Y2K Compliant." "AWAITING VENDOR
RESPONSE" shall mean that a letter has been forwarded to the applicable
vendor but no response has been received. "LETTER ON FILE" shall mean that a
letter from the vendor indicating the status of year 2000
40
readiness of the applicable item is on file and no further action has been
taken by IWRA. "TESTING COMPLETE" shall mean that the testing for Y2K
Compliance has been completed. "Y2K COMPLIANT" shall mean that the applicable
Software, system, item or device is designed to be used prior to, during and
after December 31, 1999, and such Software, system, item or device will
operate during each such time period without error relating to the year 2000,
specifically including any error relating to, or the product of, date data
that represents or references different centuries or more than one century
and that it will accept, calculate, sort, extract, and otherwise process date
inputs and date values and return and display date values, in a consistent
manner regardless of the dates used, whether before, on or after January 1,
2000. To the best of IWRA's and Current Manager's knowledge and belief, the
Status Report accurately reflects year 2000 readiness of the items reflected
thereon. IWRA has relied on information from vendors and other third parties
in identifying, assessing, remediating and testing the Software, systems,
items and devices set forth on the Status Report. Therefore, IWRA makes no
"Year 2000 Compliant" representation or warranty regarding ultimate year 2000
readiness of any Software, system, item or device. However, to the extent
such representations or warranties are provided by the manufacturer and/or
supplier of any Software, system, item or device and are transferable, IWRA
agrees to transfer to HBR at Closing, the benefits of any such representation
or warranty provided by the manufacturer and/or supplier of such Software,
system, item or device . Notwithstanding the foregoing, IWRA hereby agrees
that prior to the Closing, the time and attendance software and, if
available, the keno system software shall be upgraded to be Y2K Compliant.
9.15 FINANCIAL STATEMENTS.
9.15.1 IWRA has provided true and complete copies
of all "Financial Statements" (as defined below), together with the related
auditors reports. "FINANCIAL STATEMENTS" shall mean (a) the consolidated
balance sheets of IWRA as of December 31 in each of the years 1996 through
1998 together with consolidated statements of income and cash flows for each
of the years then ended, all certified by Xxxxxx Xxxxxxxx LLP, independent
certified public accountants for IWRA, whose reports thereon are included
therein, and (b) an unaudited consolidated balance sheet of IWRA as of the
most recently ended period and unaudited consolidated statements of income
and cash flows for the period then ended. IWRA further represents and
warrants that all Financial Statements have been prepared from, are in
accordance with, and accurately reflect, the books and records of IWRA,
comply in all material respects with applicable accounting requirements, have
been prepared in accordance with GAAP applied on a consistent basis during
the periods involved (except as may
41
be stated in the notes thereto) and fairly present the consolidated financial
position and the consolidated results of operations and cash flows (and
changes in financial position, if any) of IWRA as of the times and for the
periods referred to therein (subject, in the case of unaudited statements, to
normally recurring year-end audit adjustments which are not material either
individually or in the aggregate).
9.15.2 Since the date of IWRA's balance sheets
dated as of December 31, 1998, none of the following has occurred or arisen
in the operation of the Property: (a) any change, event or condition that has
had or reasonably may be expected to have, in any one case or in the
aggregate, a material adverse effect on IWRA or the Property, (b) any
material casualty, loss, damage or destruction of IWRA's assets, (c) sale,
assignment or transfer of any of the properties or assets of IWRA, other than
in the ordinary course of business, (d) any new encumbrance or lien on all of
the Property, (e) amendment, cancellation, or early termination of any
material contract or agreement, permit or license, or other instrument
relating to the use or operation of the Property, and (f) incurrence of any
liability or other obligation not in the ordinary course of business or
involving payments in excess of $50,000 in the aggregate.
9.16 TAXES.
9.16.1 TAX FILINGS. IWRA has timely filed or
caused to be timely filed, or will timely file or cause to be timely filed on
or prior to the Closing Date, all United States federal, state, local and
foreign tax returns, declarations, statements, reports, schedules, forms, and
information returns and any amendments thereto (the "TAX RETURNS") that are
or were required to be filed by either of them on or prior to the Closing
Date, either separately or as a member of a group of corporations. All such
Tax Returns and amendments thereto are or will be true, complete and correct
in all material respects on the Closing Date.
9.16.2 PAYMENT OF TAXES. IWRA has paid all material
United States federal, state, local, and foreign taxes, and other assessments of
a similar nature (whether imposed directly or through withholding), including
any interest, additions to tax, or penalties applicable thereto ("TAXES") for
all periods ending through the date hereof, imposed in connection with or
applicable to the Property, or where payment is not yet due, IWRA has
established or will establish or cause to be established on or before the
Closing Date, an adequate accrual for the payment of all such taxes.
42
9.16.3 TAX LIENS. There are no liens for Taxes
upon any Property of IWRA or any of its subsidiaries, except for liens for
Taxes not yet due.
9.16.4 TAX AUDITS. No Governmental Authority,
including without limitation, any Tax authority, is currently reviewing or
has given notice of its intent to review IWRA's business or financial records
for any open year.
9.16.5 WITHHOLDING TAXES. IWRA shall withhold
proper and accurate amounts from IWRA's employee payrolls for all periods
prior to the Closing Date in material compliance with all withholding
provisions of applicable local, state, and federal laws.
9.17 NONPROFIT STATUS.
9.17.1 IWRA. IWRA qualifies as a nonprofit
corporation organized under the laws of Iowa to promote those purposes
enumerated in section 99B.7, subsection 0, xxxxxxxxx "x" of the Iowa Code.
IWRA promotes those purposes enumerated in section 99B.7, subsection 0,
xxxxxxxxx "x" of the Iowa Code.
9.17.2 REVIEW BY GOVERNMENTAL AUTHORITY OF IWRA.
No Governmental Authority, including without limitation, any Tax authority,
is reviewing or has given any notice that a Governmental Authority intends
to review the status of IWRA as a nonprofit corporation organized under the
laws of Iowa to promote those purposes enumerated in section 99B.7,
subsection 0, xxxxxxxxx "x" of the Iowa Code.
9.18 LIENS AGAINST THE GAMING LICENSE. IWRA expressly
represents and warrants that no lien currently exists against its Gaming
License.
9.19 LIENS AGAINST THE GAMING EQUIPMENT. IWRA expressly
represents and warrants that it owns or otherwise has a valid right to use
and possess the Gaming Equipment free and clear of any adverse claim and that
no lien currently exists against the Gaming Equipment.
9.20 BOOKS AND RECORDS. The books of account, minute books,
and other related records of IWRA, which have been provided to HBR as part of
the Property Documents, are true, complete and correct in all material
respects and have been maintained in accordance with sound business
practices, including the mainte xxxxx of an adequate system of internal
controls.
43
9.21 NO UNDISCLOSED LIABILITIES. IWRA has disclosed all
known liabilities to HBR, except for liabilities and obligations incurred in
the ordinary course of business and consistent with past practice. Since the
Execution Date, IWRA has not incurred any liability or obligation of any
nature, whether or not accrued, contingent or otherwise, that has, or would
be reasonably likely to have, a material adverse effect on IWRA or the
Property taken as a whole.
9.22 ACCOUNTS RECEIVABLE. All current accounts receivable
of IWRA, whether reflected in the Financial Statements or otherwise,
represent income earned in the ordinary course of business. Other than the
approximately $67,000 due to IWRA from the Iowa Greyhound Association
pursuant to awards from arbitration decisions, each of current accounts
receivable is expected to be collected in full, without any set-off, within
sixty (60) days after the day on which it became due and payable.
9.23 DISPUTED ACCOUNTS PAYABLE. There are no unpaid
invoices or bills representing amounts alleged to be owed by IWRA, which IWRA
has disputed or determined to dispute or refused to pay.
9.24 INTELLECTUAL PROPERTY. IWRA owns, or is licensed or
otherwise possesses legally enforceable rights to use Intangible Property,
including, without limitation, the Software and electronic equipment
associated with the operation and maintenance of all activities on the
Property, and the consummation of this Agree ment will not alter or impair
such ability in any respect. IWRA further warrants and represents that, to
IWRA's knowledge, there are no oppositions, cancellations, invalidity
proceedings, interferences or re-examination proceedings presently pending
with respect to the Intangible Property that are reasonably likely to have a
material adverse effect on IWRA or the Property. IWRA further warrants and
represents that it has not received any notice that its conduct infringes
upon any intellectual property rights or any other proprietary right of any
other Person, and IWRA has not received any written notice from any other
Person pertaining to or challenging the right(s) of IWRA. IWRA warrants and
represents that it has not made any still pending claim of a violation or
infringement by others of its rights to or in connection with any
Intellectual Property associated with the Property.
9.24.1 SCHEDULE 9.24.1 attached hereto sets forth
a true and complete list of all patents and patent applications, trademark
registrations and applications, service xxxx registrations and applications,
copyright registrations and applications, material unregistered trademarks,
service marks, copyrights and Internet domain names used or held for use in
connection with the Property whether
44
IWRA is the licensee or licensor thereunder (excluding, however, the Excluded
Intangible Property).
9.24.2 IWRA is the valid licensee or sole and
exclusive owner of all the Intangible Property, free and clear of all
encumbrances.
9.24.3 IWRA owns or has the valid right to use
all of the Intangible Property used or held for use by it in connection with
its business. IWRA further warrants and represents that to the knowledge of
IWRA, there are no conflicts with or infringements of any Intangible Property
by any third party, that the past and current conduct of IWRA or any agent of
IWRA does not conflict with or infringe in any way on any proprietary right
of any third party, that there is no claim, suit, action or proceeding
pending or, to IWRA's knowledge, threatened against IWRA (i) alleging any
such conflict or infringement with any third party's proprietary rights or
(ii) challenging the ownership, use, validity or enforceability of the
Intangible Property.
9.25 LABOR MATTERS
9.25.1 IWRA is not a party to nor bound by any
collective bargaining or similar agreement with any labor organization or
work rules or practices agreed to with any labor organization or employee
association applicable to employees of IWRA, with the exception of the
collective bargaining agreement between Iowa West Racing Association d/b/a
Bluffs Run Casino and International Union, United Plant Guard Workers of
America (the "UNION"), dated May 1, 1998.
9.25.2 With the exception of the Union, no labor
union has been certified by the National Labor Relations Board as bargaining
agent for IWRA's employees; no notice has been received from any labor union
stating that it has been designated as the bargaining agent for any of said
employees; and no petition has been filed by any labor union requesting an
election to determine whether or not it is the exclusive bargaining agent for
any of said employees.
9.25.3 With the exception of the employees
represented by the Union, none of the employees of IWRA is represented by any
labor organization and (with the exception of certain activities undertaken
by the Teamsters and ICU-UCFW (food workers union), respectively, which
activities did not result in an election and were ceased by January 1, 1999)
there have been no union organizing
45
activities among the employees of IWRA within the past five (5) years, nor
does any question concerning representation exist concerning such employees.
9.25.4 There is no labor strike, dispute,
corporate campaign, slowdown, stoppage or lockout actually pending,
threatened against or affecting the Property, and during the past five (5)
years there has not been any such action.
9.25.5 There is no unfair labor practice charge,
complaint or Proceeding against IWRA pending or threatened before the
National Labor Relations Board or any similar state or foreign agency.
9.25.6 There is no pending grievance or
arbitration Proceeding arising out of any collective bargaining agreement or
other grievance procedure relating to IWRA or the Property.
9.25.7 With the exception of standard form
confidentiality and non-compete agreements (true and correct copies of the
forms of which were provided by IWRA to HBR prior to the Execution Date), a
true and correct copy of each employment contract, consulting agreement and
severance agreement between IWRA and any employee of IWRA shall be provided
to HBR as part of the Property Documents.
9.25.8 A true and complete copy of each written
personnel policy, rule and procedure applicable to employees of IWRA shall be
provided to HBR as part of the Property Documents.
9.25.9 IWRA is, and has at all times been, in
compliance, in all material respects, with all Laws respecting employment and
employment practices, terms and conditions of employment, wages, hours of
work and occupational safety and health, and is not engaged in any unfair
labor practices, as defined in the National Labor Relations Act or other Laws.
9.25.10 Except as disclosed on SCHEDULE 9.3,
there is no charge with respect to or relating to IWRA pending before the
Equal Employment Opportunity Commission or any other agency responsible for
the prevention of unlawful employment practices.
9.25.11 IWRA has not received notice of the
intent of any federal, state, local or foreign agency responsible for the
enforcement of labor or
46
employment laws to conduct an investigation, and no such investigation is in
progress.
9.25.12 There are no complaints, lawsuits or
other Proceedings pending or, to IWRA's knowledge, threatened in any forum
by or on behalf of any present or former employee of IWRA, any applicant for
employment or classes of the foregoing alleging breach of any express or
implied contract of employment, any laws governing employment or the
termination thereof or other discriminatory, wrongful or tortious conduct in
connection with the employment relationship.
9.25.13 Since the enactment of the Worker
Adjustment and Retraining Notification Act of 0000 (xxx "XXXX XXX"), XXXX has
not effectuated a "plant closing" (as defined in the WARN Act) affecting the
Property or a "mass layoff" (as defined in the WARN Act) affecting the
Property; nor has IWRA been affected by any transaction or engaged in layoffs
or employment terminations sufficient in number to trigger application of any
similar state, local or foreign Law or regulation.
9.25.14 SCHEDULE 9.25.14 attached hereto sets
forth a true and complete list of (i) the names and current salaries of all
officers and key employ ees of IWRA; (ii) the wage rates for non-salaried and
non-executive salaried employ ees of IWRA by classification; and (iii) all
group insurance programs in effect for employees of IWRA. IWRA further
warrants and represents that it is not in default with respect to any of its
obligations referred to in the preceding sentence, and that to IWRA's
knowledge, no officer, key employee or group of employees has any plans to
terminate employment with IWRA as a result of the execution of this Agreement
or otherwise.
9.26 COMPLIANCE WITH THE WARN ACT. IWRA shall be
responsible for any liability under the WARN Act or such similar statute or
regulation for those "mass layoff" or "plant closing" (each as defined in the
WARN Act) by IWRA occurring on or before the Closing Date. HBR shall be
responsible for any liability under the WARN Act or such similar statute or
any such "mass layoff" or "plant closing" by HBR after the Closing Date.
9.27 UTILITIES ACCESS. The Property has access to all
water, sewer, electric, natural gas, telephone, drainage facilities and all
other utilities necessary to operate the Property as a casino and dog track
and as contemplated to be operated by the Lease and the Management Agreement,
and such access has been provided in
47
material compliance with all requirements of Laws. All municipal charges for
water, sewer or solid waste disposal have been paid in full.
9.28 COMPLIMENTARIES. IWRA is not committed to any
complimentary arrangement for food or beverage for any guest or client as of
the Closing Date or any period thereafter which has not been taken into
account in determining its "current liabilities," as determined in accordance
with generally accepted accounting principles consistent with IWRA's past
practice.
9.29 CUSTOMER DATABASE. To IWRA's knowledge, no employee,
representative, agent or member of IWRA has delivered, and IWRA shall not
knowingly permit any employee, representative, agent or member to deliver
IWRA's customer database file and records to a third party (other than
mailing houses processing such information on behalf of IWRA or Current
Manager) or allow a third party access to IWRA's customer database files and
records. IWRA employs an electronic player tracking system that collects and
stores information about guests and clients of the Gaming Facility,
including, without limitation, gambling preferences, profits and losses and
complimentary arrangements. IWRA's customer database files and records are
updated and maintained by IWRA regularly and shall be updated and maintained
by IWRA through the Closing Date in accordance with past practice.
9.30 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation
or warranty by IWRA in this Agreement, nor any document, exhibit, statement,
certificate or schedule heretofore or hereinafter furnished to HBR by IWRA
pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary to make the statements or
facts contained therein not misleading.
9.31 AD VALOREM TAXES. The Real Property has not been
classified under any designation authorized by Law to obtain a special low ad
valorem tax rate or receive an abatement or deferment of ad valorem taxes
which, in such case, will result in additional, catch-up ad valorem taxes in
the future in order to recover the amounts previously abated or deferred. The
Real Property is not currently exempt from ad valorem taxes.
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9.32 MECHANIC'S LIENS. No materials have been delivered to,
and no work has been performed on, the Real Property within the last ninety (90)
days for which payment has not been made in full.
9.33 LIENS ON PERSONAL PROPERTY AND INTANGIBLE PROPERTY.
Subject only to the liens set forth on SCHEDULE 9.33 attached hereto and
incorporated herein, IWRA owns the Personal Property and the Intangible
Property, and on the Closing Date, IWRA shall sell and transfer the Personal
Property and the Intangible Property to HBR free and clear of all liens, claims,
pledges, security interests or other encumbrances.
9.34 CONDITION OF PROPERTY. Except as otherwise expressly
provided herein or in any of the Closing documents executed in connection
herewith, IWRA makes no representation or warranty as to the condition of the
Property and HBR is purchasing the Property "AS-IS" and "WITH ALL FAULTS."
9.35 STIPULATED AGREEMENT. Reference is made to that certain
Stipulated Agreement, dated November 9, 1998 (the "STIPULATED AGREEMENT"), by
and between the Administrator of the Iowa Racing and Gaming Commission and IWRA.
In connection with the Stipulated Agreement, IWRA has conducted an investigation
which included discussions with Current Manager, General Manager, licensed
engineers and other contractors and professionals relating to implementing a
plan for the modification of the exterior entrances of the Property to minimize
the potential entry into gaming areas of the Property by underage individuals
(the "MODIFICATIONS"). IWRA believes in good faith, following such
investigation, that, in light of prudent business practices and the effect such
Modifications may have upon customer traffic on the Property, the cost of
designing, constructing and implementing reasonable Modifications that would be
acceptable to the Gaming Commission will not exceed $150,000.00.
10. HBR'S REPRESENTATIONS AND WARRANTIES.
HBR represents and warrants to IWRA, as of the Execution Date
and as of the Closing Date, as follows:
10.1 NO CONFLICTS. Subject to the required approvals and
consents listed on SCHEDULE 10.1 attached hereto and incorporated herein, the
execution and delivery of this Agreement by HBR, the consummation of the
transactions herein contemplated to be performed by HBR, and compliance with the
terms of this
49
Agreement by HBR will not conflict with, or, with or without notice or the
passage of time or both, result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, deed of trust, mortgage,
loan agreement, or other document, instrument or agreement, oral or written,
to which HBR is a party or by which HBR is bound, or any regulation,
judgment, order or decree of any Governmental Authority having jurisdiction
over HBR.
10.2 DUE ORGANIZATION; CONSENTS. HBR is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. All requisite corporate action has been taken by HBR in connection with
entering into this Agreement, and will be taken prior to the Closing in
connection with, the execution and delivery of the instruments referenced herein
and the consummation of the transactions contemplated hereby. Other than the
Consents and such other consents as will be obtained by HBR prior to the
Closing, no consent of any partner, shareholder, beneficiary, creditor,
investor, judicial or administrative body, Governmental Authority or other party
will be required in connection with the execution by HBR of this Agreement
and/or the performance by HBR of its obligations hereunder.
10.3 HBR'S AUTHORITY; VALIDITY OF AGREEMENTS. HBR has full
right, power and authority to accept the Property from IWRA as provided in this
Agreement, to carry out its obligations hereunder and to execute, deliver and
perform, and enter into and consummate, all of the documents and transactions
contemplated by this Agreement. The individual(s) executing this Agreement on
behalf of HBR and the instruments referenced herein on behalf of HBR have the
legal power, right and actual authority to bind HBR to the terms hereof and
thereof. This Agreement is, and all other documents and instruments to be
executed and delivered by HBR in connection herewith shall be, duly authorized,
executed and delivered by HBR and shall be valid, binding and enforceable
obligations of HBR, subject to any limitation by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally.
10.4 LITIGATION. As of the date hereof, there are no
"Proceedings" (as hereinafter defined) before any judicial or quasi-judicial
body, by any Governmental Authority or other third party, pending, or to HBR's
knowledge, threatened, against or affecting HBR and, to HBR's knowledge, there
is no basis for any such Proceeding. No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization
or other Proceedings are pending, or, to HBR's knowledge, threatened, against
XXX.
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10.5 CURRENT ASSETS. As of the date hereof, HBR has current
assets of not less than $2,000,000 and shall maintain such assets until the
Closing Date.
11. ADDITIONAL COVENANTS OF IWRA.
In addition to the covenants and agreements of IWRA set forth
elsewhere in this Agreement, IWRA covenants and agrees that:
11.1 GAMING LICENSE AND STATUS. IWRA shall use its best
efforts to (i) maintain in good standing the Gaming License, including, but not
limited to, making all timely filings and paying all fees required for the
continued use of the Gaming License; (ii) maintain IWRA's status as a nonprofit
corporation under all applicable Laws and pursuant to the licensing requirements
set forth in 99B.7 and 99D.8 of the Iowa Code; (iii) continue to meet all the
requirements of a license holder under 99F.7 of the Iowa Code or any other
requirements under applicable Laws and (iv) meet any and all requirements that
may be imposed by the Gaming Commission or any other Governmental Authority.
11.2 IWRA'S NONPROFIT STATUS. IWRA will conduct its operations
so as to qualify as a nonprofit corporation organized under the laws of Iowa to
promote those purposes enumerated in section 99B.7, subsection 0, xxxxxxxxx "x"
of the Iowa Code.
11.3 PROMOTION OF GAMING. To the extent permitted by Law, IWRA
shall, and shall use its reasonable best efforts to cause the Foundation, and
each of their respective affiliates, members, directors, and officers to (i)
promote gaming activities in Pottawattamie County, Iowa, including, without
limitation, dog racing, land-based casinos, and riverboat casinos, and (ii)
preserve and advance the relationship between each of IWRA and the Foundation
and the City of Council Bluffs, the County of Pottawattamie, the State of Iowa
and all Governmental Authorities with jurisdiction over gaming activities. IWRA
shall use its reasonable best efforts to support any measures related to gaming
reasonably requested by HBR, including, without limitation, any law, referendum
or xxxx. Except as specifically permitted in Section 11.4 hereof, IWRA
acknowledges that its support or commencement of any lawsuit challenging the
State of Iowa's gaming tax laws would be a violation of this covenant.
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11.4 LITIGATION. Other than any Proceeding commenced by IWRA
against HBR, from and after the date hereof, neither IWRA nor any of its
affiliates, members, directors, and officers or any other entity associated with
IWRA, shall commence or allow to be commenced on its behalf or join in any
Proceeding with respect to all or any portion of the Property, including,
without limitation, any Proceeding regarding the current tax rates applicable to
income generated from riverboat casinos and land-based casinos, without the
prior written consent of HBR, which consent may be withheld in HBR's sole and
absolute discretion. Notwithstanding the foregoing sentence, HBR agrees that
IWRA may join the lawsuit commenced by Racing Association of Central Iowa
against Xxxxxxx Xxxxxxxxxx, Treasurer, State of Iowa, ET. AL, Equity No. 36601;
PROVIDED, THAT, IWRA shall (i) only be a passive participant in such lawsuit,
and (ii) use reasonable efforts to avoid and minimize any public announcements
or notices that identify IWRA's participation in such action. For purposes
hereof as a "passive participant," IWRA may: (a) move to intervene in such
lawsuit, (b) file joinders to motions, pleadings and briefs made by any other
party in such lawsuit, (c) appear at all hearings, depositions and at trial, (d)
join in discovery requests made by any other party in such lawsuit and respond
to discovery requests made upon IWRA, (e) produce evidence and call witnesses at
trial to support its case, (f) enter into stipulations, (g) join in any appeal
brought by any other party in such lawsuit, (h) respond to court orders and
subpoenas and (i) file requests for administrative relief if necessary to
intervene in such lawsuit or to execute on any judgement rendered or recover any
amounts awarded in such lawsuit; PROVIDED, FURTHER that as a "passive
participant" IWRA shall not: (x) initiate any dispositive motion (which shall
not prohibit joining in any dispositive motion made by another party or filing a
dispositive motion that is substantially similar to a pending dispositive motion
that was previously filed by another party in such lawsuit), (y) advance any
legal theory or argument which has not already been made by another party in
such lawsuit (which shall not prohibit private discussions regarding potential
legal theories or arguments among the parties to such litigation or their
counsel), or (z) take any action inconsistent with any of the foregoing.
11.5 GOVERNMENTAL AUTHORITIES. In the event that any
Governmental Authority requires a change to be made to this Agreement, the
Lease, the Management Agreement and/or the transactions as contemplated by such
documents, IWRA hereby agrees to promptly and diligently negotiate in good faith
any such required changes so that neither HBR nor IWRA suffers any economic
detriment of more than $50,000 and each party's business objectives and economic
position as contemplated herein and in the Lease and the Management Agreement is
preserved to the fullest extent possible.
52
11.6 ACCOUNT FOR INDEMNITY CLAIMS. Commencing on the Closing
Date and continuing through the third (3rd) anniversary of the Closing Date,
IWRA shall maintain a segregated, unencumbered account (the "INDEMNITY ACCOUNT")
containing the maximum amount of funds which are permitted to be held by IWRA
under chapter 504(B) of the Iowa Code and section 99D.8 of the Iowa Code from
fees and other compensation received pursuant to the Sponsorship Agreement
(including any renewal or extension thereof) and any similar agreements or
arrangements IWRA has with other casino owners or operators. Except as required
by applicable Laws, the balance of the Indemnity Account shall not fall below
the funds received by IWRA (net of reasonable operating expenses) for the most
recent 250 days. The Indemnity Account shall be available for the payment of any
claims brought by HBR against IWRA which arise under or in connection with this
Agreement and are agreed upon by IWRA or finally determined by an arbitrator
pursuant to the terms of Section 18.9 hereof (including, without limitation,
Section 16.2 hereof, the Lease, or the Management Agreement). IWRA hereby
acknowledges and agrees that the Indemnity Account shall not be HBR's sole
remedy for claims brought by HBR against IWRA and that HBR shall be entitled to
pursue any remedy available to it, whether at law or in equity.
12. ADDITIONAL COVENANTS OF HBR.
12.1 CALCULATION OF THE CAP PAYMENT. If, at any time on or
before December 31, 2006, the State of Iowa sets a gaming tax rate which reduces
the tax applicable to the first $108,540,000 of net casino revenues earned at
the Gaming Facility (the "REDUCED GAMING TAX"), then HBR shall pay to IWRA an
amount (the "CAP PAYMENT") determined as follows:
12.1.1 Calculating the difference between the
present tax attributable to $108,540,000 (that being $38,244,000) and the tax
that would be applicable to $108,540,000 if the Reduced Gaming Tax were applied,
and multiplying said difference by 5.75; and
12.1.2 Subtracting from the amount calculated under
Section 12.1.1 above an amount equal to the nominal value of the portion of the
Initial Tax Savings Payment attributable to periods after the effective date of
the Reduced Gaming Tax.
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12.2 DELIVERY OF THE CAP PAYMENT. HBR shall deliver any Cap
Payment due hereunder as follows:
12.2.1 If the later of (i) the date that the Reduced
Gaming Tax Rate becomes law, and (ii) the effective date of the Reduced Gaming
Tax Rate, if such date is different than the date set forth in clause (i) (the
"REDUCED GAMING TAX EFFECTIVE DATE"), is prior to January 1, 2001, then, at
IWRA's election, 66.66% of the Cap Payment shall be paid to IWRA in immediately
available funds not later than 180 days after the Reduced Gaming Tax Effective
Date; provided, that if IWRA elects not to offset any amounts owed pursuant to
this Section 12.2.1, such amounts shall accrue interest at six percent (6%) per
annum, and the remaining 33.33% of the Cap Payment (together with interest on
such amount accreting at 6% per annum) shall be paid to IWRA in immediately
available funds when and if HBR is obligated to pay the Holdback and the Bonus
pursuant to Section 2.2 hereof. If IWRA is not entitled to the Holdback and the
Bonus, IWRA shall forfeit 33.33% of the Cap Payment, together with any interest
thereon. If IWRA is required to reimburse any portion of the Holdback and the
Bonus to HBR, IWRA shall also reimburse at such time 33.33% of the Cap Payment
(together with interest on such amount at a rate of 6% per annum from the date
the Holdback and the Bonus were paid to IWRA to the date of reimbursement).
12.2.2 If the Reduced Gaming Tax Effective Date is on
or after January 1, 2001, but prior to January 1, 2002, then, at IWRA's
election, 33.33% of the Cap Payment shall be paid to IWRA in immediately
available funds not later than 180 days after the Reduced Gaming Tax Effective
Date; provided, that if IWRA elects not to offset any amounts owed pursuant to
this Section 12.2.2, such amounts shall accrue interest at six percent (6%) per
annum, and the remaining 66.66% of the Cap Payment (together with interest on
such amount accreting at 6% per annum) shall be paid to IWRA in immediately
available funds when and if HBR is obligated to pay the Holdback and the Bonus
pursuant to Section 2.2 hereof. If IWRA is not entitled to the Holdback and the
Bonus, IWRA shall forfeit 66.66% of the Cap Payment, together with any interest
thereon. If IWRA is required to reimburse any portion of the Holdback and the
Bonus to HBR, IWRA shall also reimburse at such time 66.66% of the Cap Payment
(together with interest on such amount at a rate of 6% per annum from the date
the Holdback and the Bonus were paid to IWRA to the date of reimbursement).
12.2.3 If the Reduced Gaming Tax Effective Date is on
or after January 1, 2002, then, at IWRA's election, 100% of the Cap Payment
shall be
54
paid to IWRA in immediately available funds not later than 180 days after HBR
is obligated to pay the Holdback and the Bonus pursuant to Section 2.2
hereof; provided, that if IWRA elects not to offset any amounts owed pursuant
to this Section 12.2.3, such amounts shall accrue interest at six percent
(6%) per annum. If IWRA is not entitled to the Holdback and the Bonus, IWRA
shall forfeit 100% of the Cap Payment, together with any interest thereon. If
IWRA is required to reimburse any portion of the Holdback and the Bonus to
HBR, IWRA shall also reimburse at such time 100% of the Cap Payment (together
with interest on such amount at a rate of 6% per annum from the date the
Holdback and the Bonus were paid to IWRA to the date of reimbursement).
12.3 CERTAIN RIGHTS ASSIGNABLE. Notwithstanding the provisions
of Section 18.6.1 of this Agreement, IWRA may assign its rights to payment of
any amounts payable pursuant to Sections 12.1 and 12.2 to the Foundation,
PROVIDED, that the Foundation shall have executed an agreement to bound by the
terms of Sections 12.1 and 12.2 of this Agreement. Upon receipt of notice from
IWRA that such assignment has occurred, HBR shall make such payments directly to
the Foundation in accordance with Sections 12.1 and 12.2.
12.4 EQUITABLE ADJUSTMENT. If prior to December 31, 2006, the
State of Iowa makes any further decreases to the effective gaming tax rate, the
parties shall make such payments and equitable adjustments to the terms hereof
as are necessary to effectuate the intent of Sections 2.1(ii) and 12.1 above. If
IWRA is not entitled to payment of the Holdback and the Bonus pursuant to
Sections 2.2.1 or 2.2.3, IWRA shall pay HBR an amount equal to the nominal value
of the portion of the Initial Tax Savings Payment attributable to periods after
the Referendum Date.
12.5 GOVERNMENTAL AUTHORITIES. In the event that any
Governmental Authority requires a change to be made to this Agreement, the
Lease, the Management Agreement and/or the transactions as contemplated by such
documents, HBR hereby agrees to promptly and diligently negotiate in good faith
any such required changes so that neither IWRA nor HBR suffers any economic
detriment of more than $50,000 and each party's business objectives and economic
position as contemplated herein and in the Lease and the Management Agreement is
preserved to the fullest extent possible.
12.6 FINANCING. HBR shall use commercially reasonable efforts
to obtain from a lender, as soon as reasonably practicable following the
Execution Date, a commitment letter (the "COMMITMENT LETTER") or a letter
agreeing to utilize its best
55
efforts to syndicate a credit facility to provide the financing for the
transactions contemplated hereunder (the "BEST EFFORTS LETTER"), each on
terms reasonably acceptable to XXX.
00. RISK OF LOSS.
13.1 CONDEMNATION. If, prior to the Closing, all or any
"Material Portion" (as hereinafter defined) is taken by condemnation or eminent
domain (or is the subject of a pending taking which has not been consummated),
IWRA shall immediately notify HBR of such fact. In such event, HBR shall have
the option to terminate this Agreement upon written notice to IWRA given not
later than thirty (30) days after HBR's receipt of such notice from IWRA. Upon
such termination, the parties shall equally share the cancellation charges, if
any, of Escrow Agent and Title Company, and neither party shall have any further
rights or obligations hereunder, other than pursuant to Sections 4.1.2 and 8.7
and Article 15 hereof, any provision hereof which expressly survives the
termination of this Agreement. HBR shall have no right to terminate this
Agreement as a result of any taking of any portion of the Property that is not a
Material Portion. If HBR does not elect or has no right to terminate this
Agreement, IWRA shall assign and turn over to HBR, and HBR shall be entitled to
receive and keep, all awards for the taking by condemnation and HBR shall be
deemed to have accepted the Property subject to the taking without reduction in
the Consideration. As used herein, the term "MATERIAL PORTION" shall mean any
portion having a value in excess of $100,000.
13.2 CASUALTY. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
hurricane, tornado, flood, landslide, fire or other casualty shall be borne and
assumed by IWRA. If, prior to the Closing any "Material Damage" (as hereinafter
defined) occurs to any portion of the Property as a result of earthquake,
hurricane, tornado, flood, landslide, fire or other casualty, IWRA shall
immediately notify HBR of such fact. In such event, HBR shall have the option to
terminate this Agreement upon written notice to IWRA given not later than thirty
(30) days after HBR's receipt of such notice from IWRA. Upon such termination,
the parties shall equally share the cancellation charges, if any, of Escrow
Agent and Title Company, and neither party shall have any further rights or
obligations hereunder, other than pursuant to Sections 4.1.2 and 8.7 and Article
15 hereof. HBR shall have no right to terminate this Agreement as a result of
any damage or destruction of any portion of the Property that does not
constitute Material Damage. If HBR does not elect or has no right to terminate
this Agreement, IWRA shall assign and turn over, and HBR shall be entitled to
receive
56
and keep, insurance proceeds relating to damage to the Property (other than
any insurance proceeds with respect to the Gaming Equipment) payable with
respect to such damage or destruction (which shall then be repaired or not at
HBR's option and cost) and HBR shall receive, as a credit against the
Consideration, an amount equal to the deductible amount with respect to the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement. If HBR does not
elect or has no right to terminate this Agreement by reason of any casualty,
HBR shall have the right to participate in any adjustment of any insurance
claim. As used herein, the term "MATERIAL DAMAGE" shall mean damage or
destruction, the cost of repair of which exceeds $100,000.
14. REMEDIES.
14.1 DEFAULT BY HBR. In the event that the Escrow and this
transaction fail to close solely as a result of the default of HBR in the
performance of its obligations under this Agreement, then IWRA shall be entitled
to pursue any remedy available to them hereunder, at law or in equity, excluding
the remedy of specific performance.
14.2 DEFAULT BY IWRA. In the event that the Closing of the
transactions contemplated in this Agreement does not occur by reason of any
default by IWRA of its obligations under this Agreement, then HBR shall be
entitled to pursue any remedy available to it hereunder, at law or in equity,
including, without limitation, the specific performance of this Agreement.
15. BROKERS.
15.1 IWRA'S BROKER. IWRA hereby represents, warrants to and
agrees with HBR that it has not had, and shall not have, any dealings with any
third party to whom the payment of any broker's fee, finder's fee, commission or
other similar compensation ("COMMISSION") shall or may become due or payable in
connection with the transactions contemplated hereby other than with XxXxxxxx &
Co. (the "BROKER"). IWRA agrees to pay all Commissions due and payable to the
Broker in connection with the transactions contemplated hereby pursuant to its
separate agreement with the Broker. IWRA shall indemnify, protect, defend and
hold HBR harmless from and against any and all claims, losses, damages, costs
and expenses (including, without limitation, reasonable attorneys' fees, charges
and disbursements) incurred by HBR by reason of any breach or inaccuracy of the
representation, warranty and agreement of IWRA contained in this Section 15.1.
57
15.2 HBR'S BROKER. HBR hereby represents, warrants to and
agrees with IWRA that it has not had, and shall not have, any dealings with any
third party to whom the payment of any Commission shall or may become due or
payable in connection with the transactions contemplated hereby other than with
Bear Xxxxxxx & Co., Inc. (the "HBR BROKER"). HBR agrees to pay all Commissions
due and payable to the HBR Broker in connection with the transactions
contemplated hereby pursuant to its separate agreement with the HBR Broker. HBR
shall indemnify, protect, defend and hold IWRA harmless from and against any and
all claims, losses, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) incurred by IWRA by
reason of any breach or inaccuracy of the representation, warranty and agreement
of HBR contained in this Section 15.2.
16. INDEMNIFICATION.
16.1 HBR'S INDEMNIFICATION. HBR hereby agrees to indemnify,
protect, defend and hold IWRA harmless from and against, on an after tax basis,
any claim, demand, obligation, loss, cost, damage, liability, judgment or
expense (including, without limitation, reasonable attorneys' fees, charges and
disbursements) (collectively, "CLAIMS") arising out of or in connection with (a)
the breach of any of HBR's representations or warranties set forth herein or (b)
the ownership, operation (including, without limitation, HBR's obligations with
respect to the Transferred Employees (other than HBR's 90 day salary obligation
with respect to the General Manager set forth in Section 4.4.1) or maintenance
of the Property by HBR after the Closing, excluding however, any Claims related
to the financial performance of the Property after the Closing.
16.2 IWRA'S INDEMNIFICATION. IWRA hereby agrees to indemnify,
protect, defend and hold HBR harmless from and against, on an after tax basis,
any Claims arising out of or in connection with (a) the breach of any of IWRA's
representations or warranties set forth herein or (b) the ownership, operation
or maintenance of the Property prior to the Closing.
16.3 FURTHER ASSURANCES. Each party shall do, execute and
deliver, or shall cause to be done, executed and delivered, all such further
acts and instruments which the other party may reasonably request in order to
more fully effectuate the indemnifications provided for in this Agreement.
58
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS.
17.1 CONFIDENTIALITY. Subject to Section 17.2 below, HBR and
IWRA hereby agree to be bound by that certain Confidentiality and Non-Disclosure
Agreement, dated May 4, 1999 (the "CONFIDENTIALITY AGREEMENT") by and between
Broker, on behalf of IWRA, and Harveys Casino Resorts, the parent company of
HBR. Notwithstanding any provision to the contrary contained in the
Confidentiality Agreement, IWRA hereby agrees that HBR may provide to
prospective lenders any information requested by such lenders in connection with
the transactions contemplated in this Agreement, the Lease and the Management
Agreement, provided, however, that HBR shall cause such prospective lenders to
agree to be bound by the confidentiality provisions contained in the
Confidentiality Agreement with respect to such information prior to disclosure.
17.2 PUBLIC ANNOUNCEMENTS. Notwithstanding Section 17.1 above,
HBR and IWRA shall consult with the other parties hereto before issuing, and
provide each other the opportunity to review and comment upon, any press release
or other public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation. The parties agree that the initial press
release to be issued with respect to the transactions contemplated by this
Agreement shall be in the form heretofore agreed to by the parties.
18. MISCELLANEOUS PROVISIONS.
18.1 GOVERNING LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Iowa, without regard to its principles
of conflicts of law.
18.2 ENTIRE AGREEMENT. This Agreement, including the exhibits
and schedules attached hereto, together with the Lease, the Management
Agreement, and the Confidentiality Agreement, constitutes the entire agreement
between HBR and IWRA pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, letters of intent, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made to any
party by any other party in connection with the subject matter hereof except as
specifically set forth herein or in the documents delivered pursuant hereto or
in connection herewith.
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18.3 MODIFICATION; WAIVER. No supplement, modification, waiver
or termination of this Agreement shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
18.4 NOTICES. All notices, consents, requests, reports,
demands or other communications hereunder (collectively, "NOTICES") shall be in
writing and may be given personally, by registered or certified mail, by
telecopy or by Federal Express (or other reputable overnight delivery service)
as follows:
To HBR: HBR Realty Company, Inc.
c/o Harveys Casino Resorts
Xxxxxxx 00 & Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With A Copy To: Xxxxxxxxx & Xxxxxx, Ltd.
Kingsbury Square
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq. and
Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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To IWRA: Iowa West Racing Association, Nonprofit Corporation
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Mr. Xxxx Xxxxx
Telephone: (000) 000-0000, ext. 11
Telecopy: (000) 000-0000
With A Copy To: Xxxxxx Law Firm
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Escrow Fidelity National Title Insurance Company
Agent: 000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other Person as the addressee party shall have
last designated by notice to the other parties. All Notices shall be deemed to
have been given when received. All Notices given by telecopy shall be followed
by the delivery of a hard copy of such Notice, provided that such Notice shall
be deemed to have been given when received by telecopy.
18.5 EXPENSES. Subject to the provision for payment of
Closing Costs in accordance with the terms of Section 8.7 hereof and any other
provision of this Agreement, whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
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18.6 ASSIGNMENT.
18.6.1 IWRA'S RIGHT TO ASSIGN. IWRA shall not
have the right, power or authority to assign all or any portion of this
Agreement or its rights hereunder or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily or by operation of law,
without HBR's prior written consent.
18.6.2 HBR'S RIGHT TO ASSIGN. HBR shall have the
right, power and authority to assign all or any portion of this Agreement or its
rights hereunder or to delegate any duties or obligations arising under this
Agreement, voluntarily, involuntarily or by operation of law, without IWRA's
consent, to any affiliate of HBR; provided, however, that no such assignment or
delegation shall relieve HBR of its obligations or liabilities under this
Agreement.
18.7 SEVERABILITY. Any provision or part of this
Agreement which is invalid or unenforceable in any situation in any jurisdiction
shall, as to such situation and such jurisdiction, be ineffective only to the
extent of such invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or enforceability of any such
provision in any other situation or in any other jurisdiction.
18.8 SURVIVAL. All representations and warranties made
by IWRA in Article 9, by HBR in Article 10 and all other representations and
warranties to the extent that they relate to the condition of the Property shall
survive the delivery of the Deed and the Closing until the third anniversary of
the Closing Date. The following provisions shall survive the delivery of the
Deed and the Closing: Sections 2.2 (Holdback), 2.3 (Letter of Credit), 2.4
(Allocation of the Consideration), 4.1.2 (HBR's indemnity obligation for HBR's
diligence tests), 4.4 (Transferred and Non-Transferred Employees), 4.11
(Reasonable Efforts), 8.6 (Post Closing Adjustments), 12.1 (Calculation of the
Cap Payment), 12.2 (Delivery of the Cap Payment), 12.3 (Certain Rights
Assignable), 12.4 (Equitable Adjustment), 12.5 (Governmental Authorities), 18.8
(Survival), 18.9 (Arbitration), 18.17 (Post Closing Access to Records), 18.19
(Attorneys' Fees) and Articles 11 (Additional Covenants of IWRA), 14 (Remedies),
15 (Brokers), 16 (Indemnification), and 17 (Confidentiality and Public
Announcements).
18.9 ARBITRATION. Any dispute, controversy or claim
arising out of or relating to this Agreement, the Lease or the Management
Agreement, or the
62
breach, termination or validity hereof or thereof, shall be finally settled
by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect, as modified herein (the
"RULES"). The place of arbitration shall be Omaha, Nebraska. There shall be
three arbitrators, of whom HBR shall appoint one and IWRA shall appoint one
within thirty (30) days of the receipt by the respondent of the demand for
arbitration. The two arbitrators so appointed shall select the chair of the
arbitral tribunal within thirty (30) days of the appointment of the second
arbitrator. If such arbitrator is not appointed within the time limit
provided herein, such arbitrator shall be appointed by the American
Arbitration Association ("AAA") in accordance with the Rules. Any arbitrator
appointed by the AAA shall be an experienced arbitrator who is either a
retired judge or a practicing attorney with no less than fifteen years of
experience with large commercial cases. Any arbitration proceedings, decision
or award rendered hereunder and the validity, effect and interpretation of
this arbitration agreement shall be governed by the Iowa Arbitration Act,
Chapter 679A of the Iowa Code. By agreeing to arbitration, the parties do not
intend to deprive any court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment or other order in aid of arbitration
proceedings and the enforcement of any award. Without prejudice to such
provisional remedies in aid of arbitration as may be available under the
jurisdiction of a court, the arbitral tribunal shall have full authority to
grant provisional remedies and to award damages for the failure of any party
to respect the arbitral tribunal's orders to that effect. Any decision or
award rendered hereunder shall be final and binding on the parties and
judgment upon such decision or award may be entered in any court having
jurisdiction thereof.
18.10 SUCCESSORS AND ASSIGNS; THIRD PARTIES. Subject to
and without waiver of the provisions of Section 18.6 hereof, all of the rights,
duties, benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors and assigns. Except
as specifically set forth or referred to herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any Person,
other than the parties hereto and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
18.11 COUNTERPARTS. This Agreement may be executed in as
many counterparts as may be deemed necessary and convenient, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
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18.12 HEADINGS. The Section headings of this Agreement
are for convenience of reference only and shall not be deemed to modify,
explain, restrict, alter or affect the meaning or interpretation of any
provision hereof.
18.13 TIME OF ESSENCE. Time shall be of the essence with
respect to all matters contemplated by this Agreement.
18.14 FURTHER ASSURANCES. In addition to the actions
recited herein and contemplated to be performed, executed, and/or delivered by
IWRA and HBR, IWRA and HBR agree to perform, execute and/or deliver or cause to
be performed, executed and/or delivered at or after the Closing any and all such
further acts, instruments, deeds and assurances as may be reasonably required to
consummate the transactions contemplated hereby, including, without limitation,
and subject to the Confidentiality Agreement secured pursuant to Section 17.1,
any instruments, and documents as may be reasonably requested by HBR's lender in
the financing of the acquisition of the Property. HBR and IWRA hereby further
agree to make available in a prompt and timely manner any information requested
from the Gaming Commission or any of its duly authorized representatives.
18.15 NUMBER AND GENDER. Whenever the singular number is
used, and when required by the context, the same includes the plural, and the
masculine gender includes the feminine and neuter genders.
18.16 CONSTRUCTION. This Agreement shall not be
construed more strictly against one party hereto than against any other party
hereto merely by virtue of the fact that it may have been prepared by counsel
for one of the parties.
18.17 POST CLOSING ACCESS TO RECORDS. Upon receipt by
IWRA of HBR's reasonable written request at anytime and from time to time within
a period of three (3) years after the Closing, IWRA shall make all of IWRA's
records relating to the Property available to HBR for inspection and copying (at
HBR's sole cost and expense).
18.18 EXHIBITS AND SCHEDULES. All exhibits and
schedules attached hereto are hereby incorporated by reference as though set
out in full herein.
18.19 ATTORNEYS' FEES. In the event that any party
hereto brings an action or proceeding against any other party to enforce or
interpret any of the
64
covenants, conditions, agreements or provisions of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover
all reasonable costs and expenses of such action or proceeding, including,
without limitation, attorneys' fees, charges, disbursements and the fees and
costs of expert witnesses.
18.20 BUSINESS DAYS. As used herein, the term "BUSINESS
DAY" shall mean a day that is not a Saturday, Sunday or legal holiday. In the
event that the date for the performance of any covenant or obligation under this
Agreement shall fall on a Saturday, Sunday or legal holiday, the date for
performance thereof shall be extended to the next Business Day.
18.21 AMENDMENT OR SUPPLEMENT. This Agreement may be
amended or supplemented in writing by HBR and IWRA with respect to any of the
terms contained in this Agreement.
[SIGNATURE PAGES FOLLOW.]
65
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
HBR:
HBR REALTY COMPANY, INC.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
IWRA:
IOWA WEST RACING ASSOCIATION,
NONPROFIT CORPORATION,
an Iowa nonprofit corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale
Agreement and Joint Escrow Instructions and agrees to act as Escrow Agent under
this Agreement in strict accordance with its terms.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
LIST OF EXHIBITS
EXHIBIT "A" LAND PARCEL
EXHIBIT "B" LEASED PROPERTIES
EXHIBIT "C" FORM OF LEASE
EXHIBIT "D" FORM OF MANAGEMENT AGREEMENT
EXHIBIT "E" CONSIDERATION ALLOCATION
EXHIBIT "F" INTENTIONALLY OMITTED
EXHIBIT "G" FORM OF DEED
EXHIBIT "H" FORM OF XXXX OF SALE
EXHIBIT "I" FORM OF NON-FOREIGN AFFIDAVIT
EXHIBIT "J" FORM OF SPONSORSHIP AGREEMENT
EXHIBIT "K" FORM OF OFFICER'S CERTIFICATE
EXHIBIT "L" BLUFFS RUN CASINO Y2K STATUS SHEET
LIST OF SCHEDULES
SCHEDULE 2.1 PRESENT VALUE OF THE GAMING TAX SAVINGS
SCHEDULE 2.3 TERMS OF THE LETTER OF CREDIT
SCHEDULE 5.3 SCHEDULE OF GAMING EQUIPMENT
SCHEDULE 6.1.9 SCHEDULE OF ASSUMED AGREEMENTS
SCHEDULE 6.1.10 SCHEDULE OF DESIGNATED AGREEMENTS
SCHEDULE 9.1 SCHEDULE OF CONTRACTS
SCHEDULE 9.3 SCHEDULE OF LITIGATION
SCHEDULE 9.9 CONSENTS SCHEDULE
SCHEDULE 9.12 SCHEDULE OF LEASES
SCHEDULE 9.24.1 SCHEDULE OF INTELLECTUAL PROPERTY
SCHEDULE 9.25.14 SCHEDULE OF OFFICERS AND KEY EMPLOYEES
SCHEDULE 9.33 SCHEDULE OF LIENS ON PERSONAL PROPERTY AND INTANGIBLE
PROPERTY
SCHEDULE 10.1 SCHEDULE OF REQUIRED APPROVALS & CONSENTS
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