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EXHIBIT 10.16
UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT (this "Agreement"), entered into as of
August 14, 1996, by and among TV Games, Inc. ("Seller"), a Delaware corporation
wholly owned by Multimedia Games, Inc. ("MMG"), AGN Venturer L.L.C., a Delaware
limited liability company (the "Company") and each other person signatory
hereto (each a "Buyer" and collectively the "Buyers").
W I T N E S S E T H:
WHEREAS, Seller owns one hundred (100) membership units representing a
one hundred percent ownership interest in the Company (the "Units");
WHEREAS, after the conversion of American Gaming Network, JV, a New York
general partnership into American Gaming Network, L.P., a New York limited
partnership, and the merger of American Gaming Network, L.P. into American
Gaming Network, L.L.C., the Company owns fifty one percent (51%) of American
Gaming Network, L.L.C. ("AGN");
WHEREAS, the Company is liable for a certain promissory note in the
principal amount of four hundred thousand dollars ($400,000) payable to Xxxxx
Pay-Per-View, Inc., a Delaware corporation ("Xxxxx")(the "$400,000 Xxxxx
Note");
WHEREAS, the Company was liable for a certain promissory note in the
principal amount of one hundred thousand dollars ($100,000) payable to Xxxxx
(the "$100,000 Xxxxx Note");
WHEREAS, MMG advanced $100,000 to the Company for the payment of the
$100,000 Xxxxx Note which was paid in full on July 25, 1996 (the "MMG
Advance");
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WHEREAS, the MMG Advance remains a continuing obligation of the Company
to MMG;
WHEREAS, AGN is liable for a certain promissory note in the principal
amount of three hundred thirty six thousand dollars ($336,000) payable to MMG
(the "$336,000 MMG Note"); and
WHEREAS, Seller desires to sell and Buyers desire to purchase the Units,
for the consideration and upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS
1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"Affiliate" shall have the meaning prescribed by Rule 12b-2 of the
regulations promulgated pursuant to the Securities Exchange Act of 1934, as
amended.
"Business Day" shall mean any day other than a Saturday, Sunday, Federal
holiday or a day on which the banks in New York are required or permitted by
law to be closed.
"Capital Expenditures" shall mean, for any period, all expenditures
during such period for equipment, fixed assets, real property or improvements,
or for replacements or substitutions therefor or additions thereto, that have a
useful life of more than one year (other than expenditures for replacements and
substitutions
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for such equipment, fixed assets, real property or improvements from the
proceeds of insurance.)
"Claim" shall mean any demand, claim, action or cause of action based on
any Loss.
"Closing" shall mean the closing referred to in Section 3.01 of this
Agreement.
"Commercial Efforts" shall mean such efforts as shall not require the
performing party (i) to do any act that is unreasonable under the
circumstances, (ii) to make any capital contribution not expressly contemplated
hereunder, (iii) to amend or waive any rights under this Agreement, or (iv) to
incur or expend any funds other than reasonable out-of-pocket expenses incurred
in satisfying its obligation hereunder, including the fees, expenses and
disbursements of accountants, counsel and other professionals.
"Xxxxx Purchase Agreement" shall mean the Purchase Agreement dated June
25, 1996, by and among MMG, Seller, the Company, Xxxxx, American Gaming
Network, Inc., Cable Video Store, Inc. and American Gaming Network JV.
"Lien" shall mean any mortgage, pledge, security interest, lien, charge,
encumbrance, equity, claim, option, tenancy, right or restriction on transfer
of any nature whatsoever.
"Loss" shall mean any loss, damage, liability, cost, assessment or
expense including, without limitation, any interest, fine, court cost and
reasonable investigation cost, penalty and attorneys' and expert witnesses'
fees, disbursements and expenses, after taking into account any insurance
proceeds actually received by or paid on behalf of any party incurring a Loss
which are not required to be remitted by such party to any other party pursuant
to the terms hereof.
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"Person" shall mean an individual, a partnership, a joint venture, a
corporation, an association, a trust, an individual retirement account or any
other entity or organization, including a government or any department or
agency thereof.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, at the Closing on the Closing Date Buyers will purchase the
Units from Seller and Seller will sell all right, title and interest in the
Units to Buyers.
2.2 Purchase Price. In consideration of the sale of the Units, at the
Closing:
(a) Buyers will contribute (or agree to contribute) to the capital of
the Company, five hundred thousand dollars ($500,000.00)(the "Cash Amount").
The portion of the Cash Amount each Buyer shall be responsible for is set forth
on Exhibit A attached hereto; and
(b) Each Buyer will execute and deliver to Seller a personal guaranty,
in substantially the form attached hereto as Exhibit B, agreeing to guaranty
the principal portion of the $336,000 MMG Note and not interest; provided that
the individual liability for each Buyer shall not exceed the product of (x),
the number of Units purchased by such Buyer pursuant to this Agreement,
multiplied by (y) three thousand three hundred sixty (3,360) (collectively, the
"Guaranties").
2.3 Application of Cash Amount. Buyers agree to cause the Company to
apply the proceeds from the Cash Amount at Closing as follows:
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(a) Four hundred thousand dollars ($400,000.00) of the Cash Amount shall
be contributed within thirty (30) days from the Closing Date to the capital of
AGN, for the business purposes of AGN; and
(b) One hundred thousand dollars ($100,000) of the Cash Amount shall be
used to pay at Closing the MMG Advance.
ARTICLE III
CLOSING
3.1 Closing. Subject to Section 8 hereof, the Closing of the sale and
purchase of the Units shall take place at 10:00 A.M., local Oklahoma time on
August 14, 1996 or at such other date and time as the parties hereto may
mutually agree (the "Closing Date"). The Closing shall be by facsimile (
original execution copies to follow).
3.2 Deliveries at Closing.
(a) At Closing, Seller shall deliver or cause to be delivered the
following:
(i) the Units, together with an assignment separate from
certificate executed in blank in form and substance satisfactory
to Buyers;
(ii) a put/call agreement pertaining to the Units in
substantially the form attached hereto as Exhibit C (the
"Put/Call Agreement");
(iii) a right of first refusal agreement pertaining to the Units
in substantially the form attached hereto as Exhibit D (the
"Right of First Refusal Agreement");
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(iv) a registration rights agreement pertaining to the MMG Shares
(as defined in the Put/Call Agreement)in substantially the form
attached hereto as Exhibit E (the "Registration Rights
Agreement"); and
(v) such other documents and instruments as reasonably may be
requested by Buyers not less than five business days prior to the
Closing.
(b) At Closing, Buyers shall deliver or cause to be delivered the
following:
(i) $100,000 of the Cash Amount, by wire transfer to an account
designated by Seller;
(ii) the Guaranties;
(iii) the Put/Call Agreement;
(iv) the Right of First Refusal Agreement; and
(v) such other documents and instruments as reasonably may be
requested by Seller not less than five business days prior to the
Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyers as follows:
4.1 Organization; Qualification; Authority. Seller represents it is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the power and authority to make, execute,
deliver and perform this Agreement
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and to incur and perform the obligations provided for herein, all of which have
been duly authorized by all necessary and proper corporate action, including
shareholder action. Neither the execution, delivery and performance of this
Agreement by Seller nor the consummation by Seller of the transactions
contemplated hereby conflict with or will result in any breach or default of
any provision of the Certificate of Incorporation or Bylaws of Seller. This
Agreement has been duly and validly executed and delivered by the duly
authorized officers of Seller and constitutes the valid, legally binding and
enforceable obligations of Seller in accordance with the terms of this
Agreement.
4.2 Title to Units. Seller has and will transfer to Buyers at the
Closing (to each Buyer in such amounts as are specified in writing to Seller
prior to the Closing), good and valid title to the Units, free and clear of all
Liens. There are no outstanding options, warrants or other rights or
agreements to purchase or sell the Units. The Units constitute, and upon
completion of the transaction contemplated hereby the Buyers will acquire, the
entirety of Seller's ownership interest in the Company. The Units constitute
all outstanding interests in the income and losses of the Company. The Company
has not entered into any agreements to issue any interest in the income and
losses of the Company.
4.3 Conflicting Agreements; No Liens. Neither the execution or
delivery of this Agreement nor the fulfillment of or compliance with the terms
or provisions hereof will result in a breach of the terms, conditions or
provisions of or constitute, whether or not with the giving of notice or lapse
of time, or both, a default under, or result in a violation of, any agreement,
contract, instrument, order, judgment or decree to which Seller is a party or
by which the Seller or the Units are bound, or violate any provision of any
applicable law, statute, rule or regulation or any order, decree, writ or
injunction of any court or governmental body or result in creation or
imposition of any Lien.
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4.4 Status of the Company. The Company is duly organized, validly
existing and in good standing as a limited liability company under the laws of
the State of Delaware and has all powers and all governmental licenses,
authorizations, consents and approvals required to own its own property and
assets and carry on its business as now conducted and has been duly qualified
and is in good standing in every jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a material adverse effect
on the business, operations, properties or assets of the Company (a "Material
Adverse Effect"). Attached hereto as Exhibit F is a true, correct and complete
copy of the limited liability operating agreement of the Company.
4.5 Status of AGN. AGN is duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of Delaware
and has all powers and all governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted and has been duly qualified and in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect. AGN owns all of the assets, rights
and obligations of American Gaming Network, L.P., a New York limited
partnership, and of American Gaming Network, JV, a New York general
partnership, free and clear of all Liens. The Company currently owns 51% of
the outstanding membership units in AGN and Seller owns 49% of the membership
units in AGN. The membership units held by the Company and TVG in AGN
constitute all outstanding interests in the income and losses of AGN and there
are no outstanding options, warrants or other rights or agreements to purchase
or sell such membership units, except as set forth in the limited liability
company agreement for AGN, a true, correct and complete copy of which is
attached hereto as Exhibit G and except as set forth in the Put/Call Agreement.
AGN has not entered into any agreement to issue any interests in the income and
losses of AGN except as provided in its limited liability company agreement.
AGN has no outstanding indebtedness except (i) trade payables incurred in the
ordinary
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course of business which shall not exceed $50,000 as of the Closing Date, (ii)
the $336 MMG Note, a true and complete copy of which is attached hereto as
Exhibit H and (iii) a guaranty of the $400,000 Xxxxx Note (the "Xxxxx
Guaranty").
4.6 Indebtedness of the Company and AGN. Upon the payment to MMG of the
MMG Advance, the Company shall have no outstanding indebtedness except the
$400,000 Xxxxx Note, a true, complete and correct copy of which is attached
hereto as Exhibit I. As of the Closing Date, Xxxxx shall have no Claim or
potential Claim against AGN or the Company with respect to the $100,000 Xxxxx
Note. Furthermore, as of the Closing Date, and after giving effect to the
payment required in Section 2.3(b) herein, neither the Company nor AGN shall
have any obligations to (i) Xxxxx or its Affiliates except the $400,000 Xxxxx
Note and the MMG Retained Contract Rights as defined in the Xxxxx Purchase
Agreement or (ii) MMG or its Affiliates except as set forth in the $336,000 MMG
Note, and the limited liability company agreement of AGN.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer hereby represents and warrants, severally and not jointly, as
follows:
5.1 Authorization. Each Buyer has full power and authority to enter
into this Agreement and this Agreement constitutes a valid and legally binding
obligation of each Buyer.
5.2 Purchase Entirely for Own Account. The Units to be purchased by
each Buyer will be acquired for investment for the Buyer's own account, not as
a nominee or agent, and not with a view
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to Buyer's distribution of any part thereof; and each Buyer has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Each Buyer does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person with respect to any of the Units.
5.3 Reliance Upon Investors' Representations. Each Buyer understands
that the Units have not been registered under the Securities Act on the basis
that the sale provided for in this Agreement is exempt from registration under
the Securities Act pursuant to Section 4(2) thereof, and that the Seller's
reliance on such exemption is predicated on Buyer's representations set forth
herein.
5.4 Receipt of Information. Each Buyer believes he has received all
the information which he considers necessary or appropriate for deciding
whether to purchase the Units. Each Buyer further represents that he has had
an opportunity to ask questions and receive answers from the Company and Seller
and their respective officers regarding the terms and conditions of the
offering of the Units and the business, properties, prospects, and financial
condition of the Company and to obtain additional information necessary to
verify the accuracy of any information furnished to or to which the Buyer
otherwise had access.
5.5 Restricted Securities. Each Buyer understands that he must bear
the economic risk of an investment in the Units for an indefinite period of
time, that there is no established market for the Units and that it is not
anticipated that any public market for the Units will develop in the future.
Each Buyer understands that the Units may not be sold, transferred, or
otherwise disposed of without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective registration
statement covering the Units or an available exemption from registration, the
Units must be held indefinitely. In particular,
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each Buyer is aware that the Units may not be sold pursuant to Rule 144
promulgated under the Securities Act unless all of the conditions of that Rule
are met. Among the conditions for use of Rule 144 is the availability of
current information to the public about the Company. Such information is not
now available and the Company has no present plans to make such information
available.
5.6 Conflicting Agreement. Neither the execution or delivery of this
Agreement nor the fulfillment of or compliance with the terms or provisions
hereof will result in a breach of the terms, conditions or provisions of, or
constitute, whether or not with the giving of notice or lapse of time, or both,
a default under, or result in a violation of, any agreement, contract,
instrument, order, judgment or decree to which the Buyer is a party or by which
such Buyer is bound, or violate any provision of any applicable law, statute,
rule or regulation or any order, decree, writ or injunction of any court or
governmental body.
5.7 Accredited Investor. Each Buyer is an "accredited investor" as
such term is defined in Rule 501 promulgated under the Securities Act of 1933,
as amended.
ARTICLE VI
COVENANTS OF THE PARTIES
6.1 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby will be paid by the party
incurring such costs and expenses, whether or not the transactions contemplated
hereby are consummated; provided however, that Seller shall pay all reasonable
legal fees and expenses incurred by Buyers in connection with this Agreement.
6.2 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use its Commercial
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Efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary under applicable laws and regulations to consummate
the transactions contemplated by this Agreement. On and from time to time
after the Closing Date, without further consideration, Seller will, at its own
expense, execute and deliver such documents to Buyers as Buyers may reasonably
request in order to consummate the transactions contemplated by the Agreement.
On and from time to time after the Closing Date, without further consideration,
Buyers will, at their own expense, execute and deliver such documents to Seller
as Seller may reasonably request in order to consummate the transactions
contemplated by this Agreement.
6.3 Filing. The parties shall promptly make, or cause to be made, all
such filings and submissions under laws and regulations applicable to such
party, if any, as may be required for the consummation of the transactions
contemplated hereby. The parties hereto will coordinate and cooperate with one
another in exchanging such information and reasonable assistance as may be
requested in connection with all of the foregoing.
6.4 Transfer Taxes. Seller shall pay the cost of any conveyance, deed,
transfer, excise, stamp, sales, use, recording or similar taxes or fees,
arising out of the sale, transfer, conveyance or assignment of the Units as
contemplated hereby. The covenants contained in this Section 6.4 shall survive
the Closing Date until fully discharged.
6.5 Brokers Fee's. Seller and Buyers each hereby represent that
neither party has paid or agreed to pay any brokerage commissions or finder's
fees or employed any broker or finder in connection with any transaction
contemplated by this Agreement.
6.6 Amendment of Limited Liability Company Agreement of AGN. Seller
and Buyers agree that the limited liability company agreement of AGN shall be
amended after the Closing Date and that each party shall negotiate the terms
and conditions of such amendment in good
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faith. The parties agree that the amendments will specifically include
provisions providing for the following:
(i) a management committee comprised of six(6) members, three (3)of whom
shall be chosen by Seller and three (3) of whom shall be chosen by the Company;
(ii) tag along rights of the Company (x) in the event of a sale by
Seller of Seller's interest in AGN and (y) in the event of sale by MMG of MMG's
interest in Seller; and
(ii) a majority vote of the management committee of AGN before the
management committee of AGN may cause or authorize AGN to:
(a) create or incur any debt, or become liable as a surety,
guarantor, accommodation endorser or otherwise for or upon the
obligation of any other Person in excess of $50,000 during any
single fiscal year of AGN;
(b) create, assume or suffer to exist any Lien on any of the
assets of AGN, or upon or with respect to any proceeds therefrom,
or assign any accounts receivable or other right to receive
income or proceeds;
(c) acquire a "business" (as described by the Securities and
Exchange Commission in Regulation S-X, Rule 11-01(d)) of another
Person whether by purchase of substantially all of the assets of
a "business" or by purchasing securities of a "business";
(d) sell, or consolidate or merge, a "business" (as described by
the Securities and Exchange Commission in Regulation S-X, Rule
11-01(d)) of AGN to or with another Person;
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(e) enter into a transaction with an Affiliate;
(f) make Capital Expenditures in excess of $25,000 individually
or $100,000 in the aggregate for any fiscal year of AGN;
(g) pay dividends or make any distributions to any holder of
membership units in AGN except payments of indemnity under the
limited liability company agreement of AGN;
(h) appoint or remove the chief executive officer, chief
operating officer, chief financial officer and/or any other
officers of AGN;
(i) invest resources of AGN in excess of $50,000 for any
individual game project; and
(j) sell, transfer or issue any membership units of AGN except to
an investor in the Company.
6.7 Interest on $400,000 Xxxxx Note. Seller hereby agrees to pay any
and all interest owing to Xxxxx on the $400,000 Xxxxx Note at the times and
pursuant to the other terms of the Xxxxx Note, provided that Seller shall in no
other way be liable for the $400,000 Xxxxx Note. Such payments shall be
recorded as a liability of the Company to Seller payable solely out of cash
distributions, if any, made by AGN in respect of the membership units of AGN
owned by the Company.
6.8 K-1. Seller hereby agrees to timely prepare (or cause to be
prepared) the K-1 filing for members of the Company and to pay any reasonable
expense associated with the preparation thereof.
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ARTICLE VII
CLOSING CONDITIONS
7.1 Conditions to Each Party's Obligations. The respective obligations
of the parties to consummate the transactions contemplated by this Agreement
shall be subject to each of the following conditions.
(a) No party or the Units shall be subject to any order,
judgment, decree or injunction of a court of competent jurisdiction or
governmental body, agency or official nor any applicable law or regulation or
executive order which prevents consummation of the transactions contemplated
hereby on the terms described herein.
(b) All filings required by applicable law shall have been made
and all consents thereunder with respect to the transactions contemplated by
this Agreement shall have been obtained.
7.2 Conditions to the Obligations of Seller. The obligation of the
Seller to consummate the transaction contemplated hereby shall be further
subject to the fulfillment on or prior to the Closing Date of each of the
following conditions:
(a) Buyers shall have performed and complied in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date.
(b) The representations and warranties of the Buyers set forth
in this Agreement shall be true and correct in all material respects as of the
date made and as of the Closing Date as though made at and as of the Closing
Date (except as otherwise contemplated by this Agreement).
7.3 Conditions to the Obligations of Buyers. The obligation of Buyers
to consummate the transactions contemplated hereby shall be
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further subject to the fulfillment on or prior to the Closing of each of the
following conditions:
(a) Seller shall have performed and complied in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date.
(b) The representations and warranties of Seller set forth in
this Agreement shall be true and correct in all material respects as of the
date made and as of the Closing Date as though made at and as of the Closing
Date (except as otherwise contemplated by this Agreement).
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) By mutual written consent of all parties to this Agreement.
(b) By written notice by Seller or Buyers to the other party if
the Closing shall not have occurred on or before 5:00 p.m., local time in
Tulsa, Oklahoma, on August 14, 1996, unless such failure to occur is due to the
failure of the party seeking to terminate this Agreement to perform in all
material respects each of its obligations under this Agreement required to be
performed by it or its affiliate at or before the Closing Date.
(c) By Buyers if there has been a material violation or breach
by Seller of any agreement, representation or warranty contained in this
Agreement which has rendered the satisfaction of
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any condition to the obligations of Buyers specified in Section 7.3 impossible
and such violation or breach has not been waived by the Buyers or cured by
Seller within 15 days after written notice to Seller of such violation or
breach.
(d) By Seller if there has been a material violation or breach
by any of Buyers of any agreement, representation or warranty contained in this
Agreement which has rendered the satisfaction of any condition to the
obligations of the Seller specified in Section 7.2 impossible and such
violation or breach has not been waived by Seller or cured by Buyers within 15
days after written notice to Buyers of such violation or breach.
8.2 Procedure and Effect of Termination.
(a) In the event of termination of this Agreement pursuant to
Section 8.1, this Agreement shall terminate, and in each case the transactions
contemplated hereby shall be abandoned, without further action by any of the
parties hereto, and there shall be no liability on the part of the parties,
except as set forth in Section 6.1, which Section shall survive the termination
of this Agreement.
(b) If this Agreement is terminated as provided in Section 8.1,
all filings, applications and other submissions made pursuant to this Agreement
shall, to the extent practicable, be withdrawn from the agency or other person
to which they were made.
ARTICLE IX
SURVIVAL AND INDEMNIFICATION
9.1 Survival. The representations, warranties, covenants and
agreements of the parties hereto shall survive the execution and delivery
hereof and the delivery of all of the documents executed in connection herewith
and shall continue in full force and effect after
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the date hereof and after the Closing Date for a period of one (1) year, except
that (i) the representation and warranty of the parties contained in Section
4.1, Section 4.2 and Section 5.1, respectively, shall survive without
limitation or until the expiration of any applicable statute of limitations,
and (ii) any covenants or agreements contained herein or made pursuant hereto
which by their terms are to be performed after Closing shall survive until
fully discharged, including, without limitation, the covenants of Seller set
forth in Sections 6.7 and 6.8. The date until which the representations,
warranties, covenants and agreements of the parties hereto survive, as set
forth herein, is known as the "Expiration Date". From and after the Expiration
Date, no party shall be under any liability whatsoever with respect to any such
representation or warranty or any obligation or liability based upon such
representation or warranty, except for breaches as to which a party shall have
given notice (specifying, with reasonable particularity, facts establishing
such breach) to the other party or parties prior to the applicable Expiration
Date and the representations, warranties and covenants specified in clauses (i)
and (ii) above. The respective representations and warranties contained herein
or in any certificates delivered pursuant to this Agreement prior to or at the
Closing shall not be deemed waived or otherwise affected by any investigation
made by any party hereto.
9.2 Indemnification. Subject to the limitation set forth in Section
9.1:
(a) Seller hereby agrees to indemnify, defend and hold harmless
each Buyer and any subsidiary or Affiliate of any Buyer, and any officer,
director, stockholder, employee, representative or agent of any thereof and
their respective successors and assigns from and against all Losses and Claims
based upon, arising out of or resulting from, any breach of any representation
or warranty of Seller that survives the Closing as provided in Section 9.1 and
any covenant or agreement of Seller contained in this Agreement.
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(b) Each Buyer, severally and not jointly, hereby agrees to
indemnify, defend and hold harmless Seller and any subsidiary or Affiliate of
Seller, and any officer, director, stockholder, employee, representative or
agent of any thereof and their respective successors and assigns, from and
against all Losses and Claims based upon, arising out of or resulting from, any
breach of any representation or warranty of such Buyer that survives the
Closing as provided in Section 9.1 and any covenant or agreement of such Buyer
contained in this Agreement.
9.3 Notice of Claim. If any party hereto has suffered or incurred any
Loss or Claim, whether pursuant to an administrative proceeding, action at law,
suit in equity, or otherwise is instituted which, if decided adversely to a
party, would result in such party suffering or incurring any Loss, such party
shall give prompt written notice to the party against which a Claim for
indemnification may be made pursuant to this Agreement ("indemnifying party"),
setting forth: (a) the facts or events, in reasonable detail which indicate
that such party has suffered or incurred such Loss, (b) the Section or Sections
of this Agreement (in addition to this Article IX) under which such party has
suffered or incurred such Loss, (c) the amount of such Loss(estimated, if
necessary) or, in the case of a Claim, such party's then good faith estimate of
the reasonably foreseeable estimated amount of its claim for indemnification
for such Loss, and (d) the method of computation of the amount of such Loss,
any of which information shall be promptly amended by such party when its
knowledge of the facts or events and any resulting liability so warrant. No
party shall be liable for indemnification pursuant to Section 9.2 unless notice
of claim for such indemnification has been given in accordance with this
Section 9.3 and on or prior to the Expiration Date, if applicable.
9.4 Defense of Claim. The indemnifying party shall have the right to
conduct and control, at its expense and through counsel of its own choosing,
the defense of any Claim, action or suit, but the indemnified party may, at its
election, participate in the defense of
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such Claim, action or suit at its sole cost and expense; provided that if (a)
the indemnifying party shall fail to defend any such Claim, (b) the
indemnifying party and indemnified party mutually agree or (c) the named
parties to such Claim,(including any impeded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them, then the indemnified party may defend, through counsel
of its own choosing, such Claim and settle such Claim, and recover from the
indemnifying party the amount of any settlement to which the indemnifying party
consents or of any resulting judgment and the costs and expenses of such
defense, provided that the indemnified party shall not compromise or settle any
Claim without the prior written consent of the indemnifying party, which
consent will not be unreasonably withheld, continued or delayed.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a subsequent written agreement of the Seller
and Buyers.
10.2 Waiver of Compliance. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
10.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally
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or by facsimile or three days after mailed by registered or certified mail
(return receipt requested), postage prepaid or one Business Day after mailed by
reputable overnight courier, to each Seller and the Company at the addresses
set forth below their signature on the signature page to this Agreement and to
the Buyers if sent to Xxxxxxxx Xxxxxx at GV Capital Corp., 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000, who is hereby designated as
agent of the Buyers upon whom notice and process against the Buyers may be
served (or at such other address for a party as shall be specified by like
notice; provided, however, that notices of a change of address shall be
effective only upon receipt thereof).
10.4 Assignment. This Agreement may not be assigned, in whole or in
part, by the parties hereto without the prior written consent of the parties,
except as set forth on Exhibit A.
10.5 Governing Law. This Agreement shall be governed by the laws of
the State of Delaware, without reference to principles of conflicts of law
which require that the substantive laws of another jurisdiction apply.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.7 Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
10.8 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted. All provisions of this
Agreement shall be enforced to the full extent permitted by law.
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10.9 No Third-Party Beneficiaries. Nothing contained in this
Agreement, 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.
10.10 Entire Agreement. This Agreement, including the documents,
schedules, certificates and instruments referred to herein, is the entire
agreement and understanding of the parties hereto in respect of the
transactions contemplated by this Agreement. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the transactions contemplated hereby.
10.11 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not.
10.12 Consent to Jurisdiction and Venue. The parties hereto agree that
any legal or equitable action for claims arising out of, or to enforce the
terms of, this Agreement may be brought in the State of New York and any court
within such state shall have personam jurisdiction over the parties and venue
of the action shall be appropriate in such court.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TV Games, Inc.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
AGN Venturer L.L.C.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
"BUYERS"
OK Association Pension Plan
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
G-V Capital Corp.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------
Name: Xxxxx Xxxxxx
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Address:
G-V Capital Corp.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------
Name: Xxxxxxx Xxxxxx
Address:
Gro-Vest Management, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx, 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------
Name: Xxxxxxx Xxxxxx
Address:
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------
Name: Xxxxxx Xxxxxx
Address:
Multimedia Games, Inc.
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Castletownbere Associates,
L.L.C.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
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Address:
Xxxxx Xxxxxxx Securities, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone (000) 000-0000
Attention: Xxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxx
Address:
First Cambridge
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone (000) 000-0000
Alliance Capital Corp.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Address:
0 Xxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxx Xxxxxx
The Holding Company
By:
--------------------------
Name:
-------------------------
Title:
-----------------------
Address:
0 Xxxxx XxXxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxx Xxxxxxx
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Address:
Xxxxx Xxxxxxx Securities, Inc.
00 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx, 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Jericho Capital Corp.
By:
--------------------------
Name:
-------------------------
Title:
-----------------------
Baystate Development Trust
By:
--------------------------
Name:
-------------------------
Title:
-----------------------
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