EXHIBIT 10.1
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement is made as of December 30,
1999, by and between:
XXXX X. XXXXXXXX, a person of the age of majority and domiciled
in Calcasieu Parish, Louisiana, whose mailing address is X.X. Xxx 0000, Xxxx
Xxxxxxx, Xxxxxxxxx 00000-0000 (the "Individual"); and
PLAYERS LAKE XXXXXXX, LLC (successor in interest to Players Lake
Xxxxxxx, Inc.), a Louisiana limited liability company ("Players"), herein
represented by Players Lake Xxxxxxx Riverboat, Inc., its duly authorized
managing member, which appears herein by and through Xxxx Xxxxx, its duly
authorized president, whose mailing address is 0000 Xxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx 00000.
BACKGROUND
A. Pursuant to the terms of that certain Purchase Agreement dated as
of March 1, 1999, by and between Players and the Individual (the "Purchase
Agreement"), Players has offered to purchase from the Individual and the
Individual has agreed to sell and convey to Players the Boellert Payment
Interest (as that term is defined in the Purchase Agreement), all subject to the
terms and conditions of the Purchase Agreement. All terms used herein shall have
the meaning ascribed to them in the Purchase Agreement unless the context
clearly requires otherwise.
B. Players and Boellert desire to amend certain provisions of the
Purchase Agreement to provide, among other things, for the acceleration of a
certain portion of the purchase price in consideration of an extension of the
Closing Date, all in accordance with the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises contained herein, and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Incorporation of Background. The Background provisions above are
incorporated herein by this reference as if set forth at length. Players and the
Individual hereby acknowledge the truth and accuracy of the Background
provisions.
2. Amendment to Certain Provisions of the Purchase Agreement.
(a) Paragraph 2 of the Purchase Agreement shall be deleted and in its
place the following shall be substituted:
2. Purchase and Sale of Boellert Payment Interest. On or before
February 29, 2000, Players shall purchase from the Individual, and the
Individual shall sell to Players the Boellert Payment Interest. Players
shall provide the Individual with at least two (2) days' notice of the
date of the closing of such transactions (the "Closing Date").
(b) The first sentence of Paragraph 3 of the Purchase Agreement shall
be deleted and in its place the following shall be substituted:
3. Purchase Price. In consideration of the purchase of the Boellert
Payment Interest, on the Closing Date, Players shall purchase a fixed
annuity contract for the benefit of the Individual (the "Annuity"),
which Annuity shall provide for monthly payments in the amounts and at
the times provided below:
(c) Paragraph 4 of the Purchase Agreement shall be deleted and in its
place the following shall be substituted:
4. Release and Non-Compete Agreement. In consideration of the purchase
of the Annuity, the Individual shall execute and deliver to Players a
Release and Non-Compete Agreement in substantially the form attached
hereto as Exhibit "A" (the "Release and Non-Compete Agreement").
(d) Paragraph 7 of the Purchase Agreement shall be deleted and in its
place the following shall be substituted:
7. Time of Closing; Closing Deliveries. Closing of the purchase and
sale of the Boellert Payment Interest ("Closing") shall take place on
the Closing Date at a time and a place mutually convenient to the
parties. At Closing, Players shall deliver to the Individual evidence
of the purchase of the Annuity and the opinion of a tax adviser as
referenced in paragraph 3, above, and the Individual shall deliver to
Players the Release and Non-Compete Agreement.
(e) Exhibit "A" to the Purchase Agreement shall be deleted and in its
place shall be substituted the form of Release and Non-Compete Agreement
attached hereto as Exhibit "A".
3. Status of Conditions Precedent; Representation of the Individual.
Players and the Individual acknowledge that in response to the request of
Players' counsel seeking Regulatory Approval of the Transactions from the Board,
the Board's attorney, Xxxxxxx X. Xxxxxxx, Xx., Assistant Attorney General,
provided a letter to Players' counsel indicating that while the Board would not
render any opinion regarding the proposed Transactions, the Board would not use
a failure to obtain approval as a basis for regulatory action against any
disclosed party to the agreements. Players has determined that this statement
satisfies the requirement for Regulatory Approval contained in Paragraph 5 of
the Purchase Agreement. The Individual represents to Players that there are no
third parties with any interest in the Purchase Agreement, or the Individual's
right to receive payments thereunder and acknowledges that such representation
is a material representation on which Players is entitled to rely in proceeding
to Closing.
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4. Consideration for Amendment. In consideration of the Individual's
agreement to amend the Purchase Agreement, including the extension of the
Closing Date provided for herein, on or before December 31, 1999, Players shall
pay to the Individual the sum of One Hundred Thousand and No/100 Dollars
($100,000.00) (the "Extension Consideration") in immediately available funds.
5. Limitation on Modifications. Except as specifically amended hereby,
all terms contained in the Purchase Agreement shall remain in full force and
effect.
6. Counterparts. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
before the undersigned, competent witnesses, and the notaries shown below, as of
the date first above written.
s/s Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
WITNESSES:
___________________________
___________________________
__________________________________________
Notary Public
ATTEST:
PLAYERS LAKE XXXXXXX, LLC
By: Players Lake Xxxxxxx Riverboat, Inc.,
Managing Member
____________________________ By: s/s Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
____________________________
__________________________________________
Notary Public
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EXHIBIT "A"
RELEASE AND NON-COMPETE AGREEMENT
This Release and Non-compete Agreement is made on the _____ day of
__________, 2000, by and between XXXX X. XXXXXXXX, an individual (the
"Individual") and Players Lake Xxxxxxx, LLC (successor in interest to Players
Lake Xxxxxxx, Inc.), a Louisiana limited liability company ("Players").
BACKGROUND
A. Pursuant to the terms of that certain Purchase Agreement dated as
of the 1st day of March, 1999, by and between Players and the Individual, as
amended by that certain Amendment to Purchase Agreement dated as of the ___ day
of December, 1999 (collectively, the "Purchase Agreement"), Players offered to
purchase from the Individual and the Individual agreed to sell and convey to
Players, the "Boellert Payment Interest" (as that term is defined in the
Purchase Agreement) arising under that certain Settlement Agreement dated as of
the 27th day of July, 1995, by and among Players Lake Xxxxxxx, Inc. (predecessor
in interest to Players) and certain other parties (the "Settlement Agreement"),
all subject to the terms and conditions of the Purchase Agreement.
B. The Individual is entering into this Agreement with Players in
consideration of its receipt of the consideration stated in the Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises contained herein, and other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Incorporation of Background. The Background provisions above are
incorporated herein by this reference as if set forth at length. Players and the
Individual hereby acknowledge the truth and accuracy of the Background
provisions.
2. Acknowledgment of Receipt of Funds. The Individual acknowledges
that on even date herewith, the Individual received from Players (i) the
Extension Consideration (as that term is defined in the Purchase Agreement) and
(ii) evidence of Players' purchase of the Annuity (as that term is defined in
the Purchase Agreement), in full and complete satisfaction of Players'
obligations under the Purchase Agreement.
3. Release.
(a) In full and complete settlement of (i) any and all
obligations of Players to the Individual (and any party claiming under the
Individual) arising under or out of the Settlement Agreement and (ii) any claims
that the Individual may have against
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Players, and for and in consideration of the undertakings of Players described
herein and in the Purchase Agreement, including the payment of the Extension
Consideration and the purchase of the Annuity, the Individual does hereby
REMISE, RELEASE AND FOREVER DISCHARGE Players, its affiliates and assigns,
directors, shareholders, partners, employees and agents, and their respective
successors and assigns, heirs, executors and administrators (hereinafter all
included within the term "Players Parties"), of and from any and all manner of
actions and causes of actions, suits, debts, claims and demands whatsoever at
law or in equity, which it ever had, now has, or hereafter may have, or which
its heirs, executors, administrators, successors or permitted assigns hereafter
may have, by reason of any action, matter, cause or thing whatsoever from the
beginning of time to the date of execution hereof; and particularly, but without
limitation of the foregoing general terms, any claims arising from or relating
in any way to the Settlement Agreement and the Purchase Agreement, including but
not limited to, any claims which have been asserted, could have been asserted,
or could be asserted now or in the future under any federal, state or local
laws, and any common law claims now or hereafter recognized and all claims for
counsel fees and costs, and any claims relating in any way to the Settlement
Agreement or the Purchase Agreement. Notwithstanding the foregoing, nothing
contained in this Paragraph 3(a) shall be deemed to limit the enforceability of
any provision of this Agreement.
(b) In full and complete settlement of (i) any and all
obligations of the Individual to Players (and any party claiming under Players)
arising under or out of the Settlement Agreement and (ii) any claims that
Players may have against the Individual, and for and in consideration of the
undertakings of the Individual described herein and in the Purchase Agreement,
Players does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Individual, its
heirs, executors and administrators (hereinafter all included within the term
"the Individual Parties"), of and from any and all manner of actions and causes
of actions, suits, debts, claims and demands whatsoever at law or in equity,
which it ever had, now has, or hereafter may have, or which its heirs,
executors, administrators, successors or permitted assigns hereafter may have,
by reason of any action, matter, cause or thing whatsoever from the beginning of
time to the date of execution hereof; and particularly, but without limitation
of the foregoing general terms, any claims arising from or relating in any way
to the Settlement Agreement and the Purchase Agreement, including but not
limited to, any claims which have been asserted, could have been asserted, or
could be asserted now or in the future under any federal, state or local laws,
and any common law claims now or hereafter recognized and all claims for counsel
fees and costs, and any claims relating in any way to the Settlement Agreement
or the Purchase Agreement. Notwithstanding the foregoing, nothing contained in
this Paragraph 3(b) shall be deemed to limit the enforceability of any provision
of this Agreement.
4. Covenant Not to Xxx. The Individual and Players further agree and
covenant that, except as may be necessary to enforce their respective rights
hereunder, neither will, directly or indirectly, file, charge, claim, xxx or
cause or permit to be filed, charged or claimed, any action for damages,
including injunctive, declaratory, monetary or other relief against the other,
involving any matter occurring at any time in the past up
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to the date hereof in connection with the Individual or Players, as the case may
be, or involving any continuing effects of any actions or practices which may
have arisen or occurred prior to the date hereof. The Individual and Players
further agree and covenant that should either of them, directly or indirectly,
file, charge, claim, xxx or cause or permit to be filed, charged or claimed, any
action for damages, including injunctive, declaratory, monetary or other relief,
in each case as prohibited by the preceding sentence, despite such party's
agreement not to do so hereunder, then such breaching party will repay to the
other all amounts (or the value of benefits) paid hereunder, and pay all of the
costs and expenses of the nonbreaching party (including reasonable attorneys'
fees) incurred in the defense of any such action or undertaking.
5. Covenant Not to Compete. The Individual hereby agrees that for a
term of two (2) years, it shall not, directly or indirectly (individually or
for, with or through any other person, firm, joint venture, corporation or other
entity), carry on or engage in any casino gaming business within Calcasieu
Parish, or solicit customers of Players within Calcasieu Parish; provided,
however, that subject to the terms of this Paragraph 5, nothing contained herein
shall limit the ability of the Individual to distribute, own or operate, or to
provide services to any manufacturer, distributor, or operator of, "Video Draw
Poker Devices" as that term is defined in La.R.S. 33:4862.1(B)(15) ("VDPDs").
The phrase "carry on or engage in any casino gaming business within Calcasieu
Parish" shall mean being or acting, in any capacity (whether legal or
beneficial), as an owner, landlord of, broker of or for, operator, employee,
agent, consultant, lobbyist, spokesperson or representative of the interests of
any person, firm, joint venture, corporation or other entity engaged in, or
preparing to engage in, gaming operations or other casino gaming enterprises
within the geographical boundaries of Calcasieu Parish (any such person, firm,
joint venture, corporation or other entity being referred to as a "Calcasieu
Gaming Operator"). Notwithstanding the provisions of the first sentence of this
Paragraph 5, and as a limited specific exception thereto, any party may (i) own
or operate VDPDs, so long as the subject VDPDs are not owned or operated,
directly or indirectly, with, for or on behalf of any Calcasieu Gaming Operator,
and (ii) distribute VDPDs, or provide services to any person or entity who
manufactures, distributes, or operates VDPDs, so long as such distributee or
recipient of such services is not, now or in the future, a Calcasieu Parish
Operator. If, after the execution of this Agreement, any party hereto is engaged
in the distribution of VDPDs or the provision of services to any person or
entity who manufactures, distributes, or operates VDPDs, and such distributee or
recipient of services becomes a Calcasieu Parish Operator, such party(ies) shall
immediately cease its(their) association with such Calcasieu Parish Operator to
the extent of such Calcasieu Parish Operator's activities in Calcasieu Parish.
6. Indemnification.
(a) The Individual agrees to indemnify, hold harmless and
defend Players, and the Players Parties, from and against any losses,
liabilities, damages, charges, expenses, costs (including, without limitation,
attorneys' fees, court costs and other legal costs and expenses), penalties,
fines, injunctions, suits, claims, judgments,
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or demands suffered by or made against or imposed at any time upon any of the
Players Parties, directly or indirectly, arising as a result of or in connection
with its breach of any term of this Agreement, including its violation of any of
the terms and conditions of Paragraphs 4 or 5 of this Agreement. If Players
shall incur any fees, costs, expenses, or charges (including, without
limitation, attorneys' fees, court costs and other legal costs or expenses) in
order to enforce the terms of this Agreement, the Individual agrees to pay
directly, or at Players' option to reimburse Players for, such fees, costs, and
expenses no later than thirty (30) days after receiving written notice of said
fees, costs, expenses, or charges.
(b) Players agrees to indemnify, hold harmless and defend the
Individual, and the Individual Parties, from and against any losses,
liabilities, damages, charges, expenses, costs (including, without limitation,
attorneys' fees, court costs and other legal costs and expenses), penalties,
fines, injunctions, suits, claims, judgments, or demands suffered by or made
against or imposed at any time upon any of the Individual Parties, directly or
indirectly, arising as a result of or in connection with its breach of any term
of this Agreement, including its violation of any of the terms and conditions of
Paragraph 4 of this Agreement. If the Individual shall incur any fees, costs,
expenses, or charges (including, without limitation, attorneys' fees, court
costs and other legal costs or expenses) in order to enforce the terms of this
Agreement, Players agrees to pay directly, or at the Individual's option to
reimburse the Individual for, such fees, costs, and expenses no later than
thirty (30) days after receiving written notice of said fees, costs, expenses,
or charges.
7. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein.
8. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Release
and Non-compete Agreement as of the date first above written.
s/s Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
WITNESSES:
---------------------------
---------------------------
------------------------------------------
Notary Public
[SIGNATURES CONTINUE ON NEXT PAGE]
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ATTEST:
PLAYERS LAKE XXXXXXX, LLC
By: Players Lake Xxxxxxx Riverboat, Inc.,
Managing Member
By: s/s Xxxxxxx X. Xxxxx
---------------------------- --------------------
Xxxxxxx X. Xxxxx
----------------------------
------------------------------------------
Notary Public
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