CLOSING AGREEMENT
THIS CLOSING AGREEMENT dated January 15, 1997 by and among PNGI
Xxxxxxx Town Gaming Limited Liability Company, a West Virginia limited
liability company ("PCTG"), Xxxxxxx Town Races, Inc., a West Virginia
corporation ("CTR"), and Xxxxxxx Town Racing Limited Partnership, a West
Virginia limited partnership ("Racing"). CTR and Racing are sometimes
referred to collectively as "Optionor."
BACKGROUND
A closing (the "Closing") is being conducted simultaneously with the
execution and delivery of this Closing Agreement, under the terms of an
Amended and Restated Option Agreement dated as of February 17, 1995 among
PCTG and Optionor (the "Option Agreement").
In connection with the Closing, Racing is delivering to PCTG a Deed
for the real property portion of the Property, and Optionor and PCTG are
entering into a Transfer, Assignment and Assumption Agreement and Xxxx
of Sale (the "Transfer Agreement").
The Option Agreement, the Deed, the Transfer Agreement, and the
other agreements, instruments and documents entered into in connection
with the transactions contemplated by the Option Agreement (the
"Acquisition") are sometimes called the "Acquisition Agreements".
At the Closing, PCTG and Optionor determined it to be in their
respective best interests to clarify certain issues relating to the
Acquisition and the Acquisition Agreements, and, to induce Optionor and
PCTG to consummate the Closing, the parties have entered into this Closing
Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the above
recitals and the mutual undertakings contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, agree as follows:
1. Definitions. Initially capitalized terms used but not defined in
this Closing Agreement shall have the respective meanings ascribed to such
terms in the Option Agreement or, where applicable, another Acquisition
Agreement, except where the context clearly requires otherwise.
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2. Application.The terms and provisions of this Closing Agreement
shall apply as to the particular items set forth herein, notwithstanding
anything to the contrary contained or implied in any of the Acquisition
Agreements. The Acquisition Agreements shall remain in full force and
effect, however, except to the extent specifically modified by the terms
of this Closing Agreement.
3. Purchase Price Reduction Amount.
(a) Paragraph 1(ii) of the Option Agreement provides that the
purchase price (the "Purchase Price") for the Property shall be reduced
by, among other things, $1.60 for each $1 borrowed by Optionor under the
Line. Optionor and PCTG agree that Optionor has borrowed $936,400.29 under
the Line, and that such amount (plus any accrued but unpaid interest) is
being repaid by Optionor to PCTG upon the Closing. Optionor and PCTG
further agree that PCTG has made a payment in the amount of $219,469.41 on
behalf of Optionor for real property taxes (the "Tax Payment"), and that
such amount (plus any accrued but unpaid interest) is also being repaid by
Optionor to PCTG upon the Closing.
(b) PCTG and Optionor disagree as to whether the Tax Payment
constitutes an additional borrowing under the Line of Credit, and
therefore whether the $1.60:$1 reduction multiple applies to the Tax
Payment. The difference of $219,469.41 multiplied by the reduction
multiple of $1.60:$1 equals $351,151.06 (the "Purchase Price Reduction
Amount").
(c) Optionor and PCTG agree that upon the Closing, an amount
of the Purchase Price equal to the Purchase Price Reduction Amount shall
be placed in escrow as provided in paragraph 6 of this Closing Agreement.
(d) The dispute relating to the Purchase Price Reduction
Amount shall be resolved in accordance with paragraph 7 below, and the
Purchase Price Reduction Amount shall be paid to PCTG or returned to
Racing as determined under paragraph 7 of this Closing Agreement.
4. Environmental Indemnification.
(a) GeoSystems Consultants, Inc. conducted a
Phase II Environmental Site Assessment of the real
property constituting a portion of the Property, and
issued a report thereon dated January 3, 1997 (the
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"Report"). The Report includes estimated costs for the
remediation or other clean-up ("Remediation") of
various items, in an aggregate amount of approximately
$400,000.
(b) Optionor may be required by operation of law or pursuant
to any breach of the representation set forth in Section 4(e) of the
Option Agreement, if any, to pay for certain of the Remediation.
(C) Optionor and PCTG agree that upon the Closing, an amount of
the Purchase Price equal to $200,000 (the "Environmental Indemnification
Amount") shall be placed in escrow as provided in paragraph 6 of this
Closing Agreement, and shall be paid to PCTG or returned to Racing as
determined under paragraph 7 of this Closing Agreement.
5. Operating Expenses Liabilities Amount.
(a) Optionor hereby represents and warrants to PCTG that upon
the Closing, Optionor shall pay, perform and discharge those certain
liabilities of Optionor in an aggregate amount of approximately
$10,829,370.47, as set forth on Schedule 5(a) to this Closing Agreement
(the "Closing Date Payments"). Optionor may pay certain of the Closing
Date Payments by directing PCTG to make such payments to Optionor's
creditors on behalf of Optionor, from the Purchase Price. Optionor may
also direct all or a portion of the amount of the Closing Date Payments
shall be paid from the Purchase Price to the Escrow Fund (as hereinafter
defined), accompanied by payment instructions, and shall be paid to
creditors of Optionor as determined under paragraph 7 of this Closing
Agreement.
(b) (i) Optionor and PCTG agree that upon Closing, an amount
of the Purchase Price equal to $1,040,000, as set forth on Schedule 5(b)
(the "Known Liabilities Amount") shall be placed by Racing in escrow as
provided in paragraph 6 of this Closing Agreement, and shall be paid to
creditors of Optionor or returned to Optionor as determined under
paragraph 7 of this Closing Agreement. Optionor hereby represents and
warrants to PCTG that Optionor shall pay, perform or discharge the
liabilities and obligations set forth on Schedule 5(b) in a commercially
reasonable manner as soon as practicable after the date hereof but saving
to each of them any right or remedy they may have to contest any such
liability or obligation.
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(ii) Optionor and PCTG acknowledge that a portion of the
Known Liabilities Amount includes an amount which is for the payment of
the expenses, liabilities and obligations incurred or to be incurred by
Optionor as set forth in that certain Agreed Order dated November 7, 1996
in Jefferson County Civil Action No. 95-C-121, WVA 340 Limited Partnership
x. Xxxxxxx Town Races, Inc. and Xxxxxxx Town Racing Limited Partnership,
recorded in the Jefferson County Clerk's Office in Deed Book 850 at page
89 (the "Agreed Order"). As a result of the Agreed Order, Optionor is
required to make certain improvements to the Premises for the management
of storm water runoff (the "Work"). PCTG hereby grants Optionor and its
agents performing the Work reasonable rights of ingress and egress as
reasonably necessary to properly perform the Work.
(iii) Optionor hereby represents and warrants to PCTG
that Optionor shall cause the Work to be properly and timely completed and
that Optionor shall otherwise comply with the Agreed Order, and Optionor
hereby indemnifies, defends and holds harmless PCTG from and against any
and all losses, costs, damages, expenses, claims and attorney's fees,
including but not limited to costs of investigation, suffered or incurred
by PCTG in connection with or arising from the Agreed Order and the Work
or out of the failure of Optionor to comply with its obligations in
connection therewith, including any losses, costs, damages, expenses,
claims and attorney's fees incurred by PCTG by reason of any acts or
omissions of Optionor or Optionor's direct or indirect agents performing
the Work.
(c) Optionor and PCTG agree that upon Closing, an amount of
the Purchase Price equal to $250,000 to be used for payment of
obligations, liabilities and expenses of Optionor identified by Optionor
or PCTG subsequent to the date hereof and which either PCTG would be
obligated to pay to a third party if not paid by Optionor or which
Optionor would owe to PCTG under any of the Acquisition Agreements(the
"Operating Expense Liabilities Amount") shall be placed in escrow as
provided in paragraph 6 of this Closing Agreement. The Operating Expense
Liabilities Amount shall be applied towards payment of the operating
expense liabilities of Optionor existing as of the Closing Date or arising
thereafter, with any balance returned to Racing, as determined under
paragraph 7 of this Closing Agreement. Optionor and PCTG acknowledge and
agree that $29,933.70 of the $250,000.00 is being held in escrow pursuant
to condition (3) of PCTG's license
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dated December 12, 1996 from the West Virginia Racing
Commission.
6. Escrow.
(a) At the Closing, a portion of the Purchase Price equal to
the aggregate of the Purchase Price Reduction Amount, the Environmental
Indemnification Amount, the Operating Expense Liabilities Amount, the
Known Liabilities Amount, and any amounts for Closing Date Payments under
the last sentence of paragraph 5(a) (collectively, the "Escrow Fund")
shall each be paid by Racing into an escrow account (the "Account") at Xxx
Xxxxxx Xxxx - Xxxx, Xxxxxxxxxxx, Xxxx Xxxxxxxx. The Account shall be
entitled "Joint Escrow Account of Xxxxxxx Town Racing Limited Partnership
and PNGI Xxxxxxx Town Gaming Limited Liability Company, Xxxxxxx X. Xxxxxx,
Esq. and Xxxxxx X. Xxxxxx, Esq. joint Escrow Agents." The Account shall be
a money market or similar interest bearing account as the Escrow Agents
may in their discretion determine. The interest earned on the Escrow Fund
shall become part of the Escrow Fund and shall be paid to Racing upon
termination of the escrow, except that PCTG shall be paid interest on any
amounts PCTG receives from the Purchase Price Reduction Amount, the
Environmental Indemnification Amount and any sums awarded to PCTG from the
Operating Expense Liabilities Amount.
(b) Optionor and PCTG hereby appoint Xxxxxxx
Xxxxxx, Esq. and Xxxxxx X. Xxxxxx, Esq. as joint escrow
agents (the "Escrow Agents") and the Escrow Agents by
their respective signatures on the execution page of
this Closing Agreement, accept such appointment, and
agree to receive, deposit and deliver the Escrow Fund
subject to the terms contained herein.
(c) The Escrow Agents' duties and responsibilities shall be
limited to those expressly set forth in the escrow provisions of this
Closing Agreement. The Escrow Agents shall have no responsibility or
obligation of any kind in connection with this Closing Agreement and the
Escrow Fund except to disburse such funds either: (I) in accordance with
the joint instructions of Optionor and PCTG, or (ii) in accordance with
the final determination of the Arbitrator (as defined below) or a court
order enforcing the determination of the Arbitrator. The Escrow Agents
shall not be required to deliver the Escrow Fund or any part thereof or
take any action with respect to any matters that might arise in connection
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therewith, other than to receive, deposit and deliver the Escrow Fund as
herein provided.
(d) The Escrow Agents shall not be charged with notice or
knowledge of any fact or information not herein set out. The Escrow Agents
shall not be required in any way to determine the validity, sufficiency,
accuracy or genuineness, whether in form or in substance, of the Escrow
Fund or of any instrument, document, certificate, statement or notice
referred to in this Closing Agreement or contemplated hereby, or of any
endorsement or lack of endorsement thereon, or of any description therein.
It shall be sufficient if any writing purporting to be such instrument,
document, certificate, statement or notice is delivered to the Escrow
Agents and purports on its face to be correct in form and signed or
otherwise executed by the party or parties required to sign or execute the
same under this Closing Agreement. The Escrow Agents shall not be required
in any way to determine the identity or authority of any person executing
the same or the genuineness of any such signature.
(e) Should any controversy arise between or among Optionor and
PCTG or any other person, firm or entity with respect to the escrow
provisions of this Closing Agreement, the Escrow Fund, or any part
thereof, or the right of any party or other person to receive the Escrow
Fund or any part thereof, or should the escrow provisions of this Closing
Agreement terminate, or if the Escrow Agents should be in doubt or
disagreement as to what action to take, (I) the Escrow Agents shall have
the right, but not the obligation, either to withhold delivery of the
Escrow Fund or portion thereof until the controversy is resolved in
writing to the satisfaction of the Escrow Agents, the conflicting demands
are withdrawn, or the doubt is resolved in writing to the satisfaction of
Escrow Agents, or (ii) either Escrow Agent may institute a xxxx of
interpleader in any court of competent jurisdiction to determine the
rights of the parties hereto. The right of either Escrow Agent to
institute such a xxxx of interpleader shall not, however, be deemed to
modify the manner in which the Escrow Agents are entitled to make
disbursements of the Escrow Fund as herein set forth other than to tender
the Escrow Fund into the registry of such court. Should a xxxx of
interpleader be instituted, or should either Escrow Agent be threatened
with litigation or become involved in litigation in any manner whatsoever
on account of the
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escrow provisions of this Closing Agreement or the Escrow Fund, or any
portion thereof, then, as between themselves and the Escrow Agents,
Optionor and PCTG hereby bind and obligate themselves, their successors
and assigns, to pay to the Escrow Agents the respective attorney's fees
and any and all other disbursements, expenses, losses, costs and damages
of each Escrow Agent in connection with or resulting from such threatened
or actual litigation, as provided in subparagraphs (h), (i) and (j) below.
(f) In the event of any disagreement or conflicting instructions
resulting in adverse claims or demands being made upon the Escrow Agents
in connection herewith, or in the event that the Escrow Agents (or either
of them), in good faith, are in doubt as to what action should be taken
hereunder, either may, at his option, refuse to comply with any claims or
demands on him, or refuse to take any other action hereunder, so long as
such disagreement continues or such doubt exists, and in any such event,
the Escrow Agents shall not be or become liable in any way or to any party
for their failure or refusal to act until all differences shall have been
adjusted and all doubt resolved in writing to the satisfaction of the
Escrow Agents.
(g) Without in any way limiting any other provision of the escrow
provisions of this Closing Agreement, it is expressly understood and
agreed that Escrow Agent shall be under no duty or obligation to give any
notice, or to do or to omit the doing of any action or anything with
respect to the Escrow Fund, except to receive, deposit and deliver the
Escrow Fund in accordance with the escrow provisions of this Closing
Agreement. The Escrow Agents shall not be liable for any error in
judgment, any act or omission, any mistake of law or fact, or for anything
either may do or refrain from doing in connection herewith, except for his
own willful misconduct or gross negligence. All actions to be taken by the
Escrow Agents hereunder shall be taken only upon the agreement of both
Escrow Agents, except for actions specifically stated herein which may be
taken by one or either Escrow Agent.
(h) Optionor and PCTG jointly and severally hereby agree to
indemnify the Escrow Agents against, and hold each harmless from, any and
all losses, costs, damages, expenses, claims and attorney's fees,
including but not limited to costs of investigation, suffered or incurred
by any Escrow Agent in connection with or arising from or out of this
Closing Agreement, except such acts or
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omissions as may result from the willful misconduct or gross negligence of
such Escrow Agent.
(i) Each of the Escrow Agents may consult with his counsel or other
counsel satisfactory to him concerning any question relating to his duties
or responsibilities hereunder or otherwise in connection herewith and
shall not be liable for any action taken, suffered or omitted by the
Escrow Agent in good faith upon the advice of such counsel. All of the
Escrow Agents' rights hereunder are cumulative of any other rights either
may have by law or otherwise.
(j) Xxxxxx X. Xxxxxx, Esq. in his capacity as Escrow
Agent shall be entitled to reimbursement from PCTG, and
Xxxxxxx X. Xxxxxx, Esq. in his capacity as Escrow Agent
shall be entitled to reimbursement from Optionor, for
all reasonable fees and expenses of legal counsel or
other costs incurred by such Escrow Agent in connection
with the operation, administration and enforcement of
the escrow provisions of this Closing Agreement and
such Escrow Agent's rights or obligations hereunder.
(k) The Escrow Agents (or either of them) may resign
upon ten (10) days' prior written notice to each of
Optionor and PCTG. If Xxxxxx X. Xxxxxx, Esq. or his
successor shall resign, PCTG shall appoint a successor
Escrow Agent and, if Xxxxxxx X. Xxxxxx, Esq. or his
successor shall resign, Optionor shall appoint a
successor Escrow Agent.
(l) Upon disbursement of the Escrow Fund as provided herein, the
escrow provisions of this Closing Agreement shall terminate; provided,
that the provisions hereof respecting indemnification of the Escrow Agents
and payment of costs incurred by the Escrow Agents shall remain in full
force and effect for so long as the Escrow Agents may have any liability
or incur any costs in connection herewith.
(m) Optionor and PCTG hereby agree that Xxxxxxx X. Xxxxxx, Esq.
through Xxxxxx Rice XxXxxxx Xxxxx & Love represent Optionor as general
counsel, and that Xxxxxx X. Xxxxxx, Esq. through Mesirov Xxxxxx Xxxxx
Xxxxxx & Xxxxxxxx represent PCTG as general counsel, and agree that
neither Escrow Agent, nor their respective firms, shall be deemed to have
a conflict representing their respective client against the client of the
other, whether in connection with this Agreement or the transactions or
agreements contemplated hereby or entered into in connection herewith, or
otherwise,
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solely by reason of the Escrow Agents respective roles
as Escrow Agents hereunder.
7. Dispute Resolution.
(a) As to the Purchase Price Reduction Amount, Optionor and
PCTG shall attempt to mutually resolve the dispute by good faith
negotiations during the period of forty-five (45) days following the
Closing. If Optionor and PCTG agree on a resolution, they shall jointly
instruct the Escrow Agents as to the resolution, and shall instruct the
Escrow Agents to pay the Purchase Price Reduction Amount in accordance
with the resolution, and the Escrow Agents shall make the payments as so
instructed. If Optionor and PCTG are unable to reach an agreement by good
faith negotiations within such 45 day period, unless the Optionor and PCTG
agree to extend the period of good faith negotiations, either PCTG or
Optionor, or both jointly, may instruct the Escrow Agent that no
resolution has been reached. In such case, the dispute will be submitted
to binding arbitration as set forth in subparagraph (d) below.
(b) As to the Environmental Indemnification Amount, Optionor
and PCTG shall attempt to mutually resolve the dispute by good faith
negotiations for a period of one year following the Closing, and shall
instruct the Escrow Agents as to the results of such negotiations. If the
results determined how the Environmental Indemnification Amount should be
distributed between Optionor and PCTG, the Escrow Agents shall make the
payments in the manner instructed by the parties. If the parties are
unable to reach an agreement as to the distribution of all or a portion of
the Environmental Indemnification Amount during such one year period, the
dispute will be submitted to binding arbitration as set forth in
subparagraph (d) below.
(c) (i) As to the Closing Date Payments, to the extent amounts
therefore have been paid into the Escrow Fund as permitted under
subparagraph 5(a) above, the Escrow Agents are hereby instructed by
Optionor and PCTG to make the Closing Date Payments for those liabilities
for which amounts have been deposited into the Escrow Fund, solely as
instructed by Optionor from time to time, consistent with the terms and
provisions hereof.
(ii) As to the Known Liabilities Amount, the
Escrow Agents are hereby instructed by Optionor and
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PCTG to make the payments for the liabilities set forth on Schedule 5(b),
solely as instructed by Optionor, consistent with the terms and provisions
hereof. If, after the known liabilities set forth on Schedule 5(b) have
been paid, discharged and performed, there remains a balance of the Known
Liabilities Amount, such balance shall be returned to Racing, as described
on Schedule 5(b).
(iii) As to the Operating Expense Liabilities Amount, to
the extent additional operating liabilities of Optionor are determined and
agreed to by Optionor, Optionor shall instruct the Escrow Agents to make
payment of such additional liabilities, and the Escrow Agents shall make
such payments. One half of the balance (unpaid amount) of the Operating
Expense Liabilities Amount (less the amount of any disputes as to payment
of Operating Expense Liabilities, including as to additional operating
expense liabilities as to which Optionor does not agree) shall be returned
to Racing 120 days after the Closing. The balance, likewise less the
amount of any disputes as to payment of Operating Expense Liabilities,
including as to additional operating expense liabilities as to which
Optionor does not agree, shall be returned to Racing 180 days after the
Closing. Any disputes as to Operating Expense Liabilities Amounts shall
upon such 180 day period be submitted to arbitration as provided in
subparagraph (d) below, and any such disputed amounts shall be retained by
the Escrow Agents pending the results of the arbitration.
(d) (i) Optionor and PCTG agree that any controversy, claim or
dispute arising out of or relating to the items set forth in this Closing
Agreement or any of the other Acquisition Agreements, or otherwise related
to or arising from or in connection with the transactions contemplated
hereby or thereby, including, but not limited to, the breach, validity or
termination of this subparagraph (d) (a "Dispute"), shall be finally
settled by arbitration before a single arbitrator (the "Arbitrator") to be
held in the city of Martinsburg, West Virginia, or such other place as
Optionor and PCTG shall mutually agree, in accordance with the then
governing Commercial Arbitration Rules of the American Arbitration
Association then in effect ("Rules").
(ii) If the parties do not agree upon an arbitrator
within 15 days after a party's receipt of a demand for arbitration then,
upon the written request
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of Optionor or PCTG, the arbitrator shall be appointed in accordance with
Rule 13 of the Rules. The arbitration and this subparagraph (d) shall be
governed by the Federal Arbitration Act, 9 U.S.C. section 1 et seq. The
decision of the Arbitrator shall be final and conclusive on the parties
unless determined by a court of competent jurisdiction that the decision
of the Arbitrator was capricious, arbitrary, or so grossly erroneous as to
imply bad faith. Judgment may be entered on the Arbitrator's award in any
court having jurisdiction. Except as set forth above in this paragraph or
to enforce any award of the Arbitrator, no suit in law or equity based on
any arbitrable dispute or controversy hereunder shall be instituted by any
Optionor or PCTG.
8. Water Pollution Control Permit. In connection with the Closing,
Optionor is required to transfer to PCTG the water control permit for the
waste water treatment plant, West Virginia National Pollutant Discharge
Elimination System Permit No. WV0088757 (the "Permit"). Optionor and PCTG
acknowledge and understand that the process to transfer the Permit may not
be completed until 30-60 days after the Closing, and agree as follows:
(a) Optionor agrees that it shall use its best efforts to
cause the Permit to be transferred and assigned to PCTG, and PCTG shall
fully cooperate with Optionor and otherwise use its best efforts to
likewise cause the Permit to be transferred to PCTG.
(b) From and after the date hereof, PCTG will be responsible
to operate the waste water treatment plant in compliance with the Permit
(which has been extended to March 3, 1997 pursuant to a letter dated
January 3, 1997 to Optionor from the West Virginia Division of
Environmental Protection) and applicable law, and Optionor will have no
further responsibility vis-a-vis PCTG for operation of the waste water
treatment plant including compliance with the Permit. Optionor
acknowledges and agrees that Optionor is responsible for the operation of
the waste water treatment plant in compliance with the Permit and
applicable law up to the date hereof.
(c) If any permits, licenses or authorities (including the
Permit) held by Optionor with respect to the Property and the operations
conducted with respect thereto, cannot be transferred to PCTG on the date
hereof or, if not transferable, if PCTG cannot obtain
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new permits, licenses or authorities (including a permit to discharge from
the waste water treatment plant) with respect thereto on or before the
date hereof, then Optionor will cooperate with PCTG so as to permit the
continued conduct and operation of the business or Property (including
discharge from and operation of the waste water treatment plant) after the
date hereof, including, without limitation, to the extent permitted by
law, continuing to conduct and operate the business and Property of
Optionor under their permits, licenses and authorities for the account of
PCTG, or permitting PCTG to conduct and operate the business under
Optionor's permits, licenses and authorities, for up to sixty (60) days
after closing, in a manner similar to the manner in which the same are
currently conducted and operated by Optionor. If continued operation under
Optionor's permits, licenses or authorities occurs pursuant hereto, then
PCTG will reimburse Optionor for Optionor's out-of-pocket costs in
connection therewith, if any, and the indemnification provisions of
subparagraph (d) below shall apply to such operation, except to the extent
any Losses (as defined in subparagraph (d) below) are a result of or
caused by the gross negligence or willful misconduct of Optionor or its
employees or agents.
(d) Optionor and PCTG agree to indemnify the other against,
and hold the other harmless from, any and all losses, costs, damages,
expenses, claims and attorney's fees, including but not limited to costs
of investigation ("Losses"), suffered or incurred by the other in
connection with or arising from or out of the breach of or failure of the
other to comply with the provisions of this paragraph 8.
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9. Indemnification for Assumed Liabilities.
(a) PCTG hereby agrees to indemnify Optionor against, and hold
Optionor harmless from, any and all losses, costs, damages, expenses,
claims and attorney's fees, including but not limited to costs of
investigation, suffered or incurred by Optionor in connection with or
arising from or out of the failure of PCTG to pay, perform or discharge
the Assumed Liabilities (as defined in the Transfer Agreement), including
the obligations under the Assigned Contracts (as defined in the Transfer
Agreement) to the extent such agreements are legally binding on Optionor
or either of them and provided PCTG has been assigned all legal and
equitable rights, remedies, defenses, claims, counterclaims or rights of
set-off, Optionor or either of them has, had or might have in connection
therewith.
(b) Notwithstanding any provision of this paragraph 9 to the
contrary, and without enlarging the obligations of PCTG to any third
party, PCTG hereby agrees to indemnify (as set forth in subparagraph (a)
above) Racing for any claim by GTECH Corporation or AmTote International,
Inc. ("AmTote") that Racing failed to fulfill its obligations under
Section/Clause 7 of the Amendment Agreement dated January 1, 1995 among
Optionor and AmTote, regardless of whether such agreement or the "Binding
Agreement" dated October 20, 1994 by and between AmTote and CTR is legally
binding.
(c) Penn National Gaming, Inc., of which PCTG is an affiliate,
by its signature on the execution page of this Closing Agreement, hereby
guarantees the performance by PCTG, to provide indemnification to Racing
as set forth in subparagraph (b) above.
10. Notice. Any notice or communications required or permitted
hereunder shall be provided to the parties (including the Escrow Agents)
in the manner and at the respective addresses set forth in the Option
Agreement (any notice to the Escrow Agents shall be delivered to both
Escrow Agents in each case).
11. SeverabilityIf one or more of the provisions hereof shall for
any reason be held to be invalid, illegal or unenforceable in any respect
under applicable law, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and this Closing Agreement
shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
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12. No Third Party Beneficiaries. This Closing
Agreement shall not confer any rights or remedies upon
any person other than the parties hereto and their
respective successors and permitted assigns.
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13. Governing Law. This Closing Agreement shall be
governed by the internal laws of the State of West
Virginia.
IN WITNESS WHEREOF, the undersigned have executed this Closing
Agreement as of the date first above written.
PNGI Xxxxxxx Town Gaming
Limited Liability Company
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President
Xxxxxxx Town Races, Inc.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, President
Xxxxxxx Town Racing Limited
Partnership
By: D.K.W. Inc., authorized
General Partner
By: /s/ D. Xxxxx Xxxxxx
D. Xxxxx Xxxxxx, President
and
By: G&G Associates, Inc.,
authorized General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
President
Acknowledged and Agreed as to Paragraphs 6 and 7:
The Escrow Agent
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Esq.
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Esq.
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Acknowledged and Agreed as to Paragraph 9(c)
Penn National Gaming, Inc.
By: /s Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President
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