PURCHASE AGREEMENT BETWEEN THE PARTIES CONSTITUTING THE JAFFE GROUP, ADAMAR OF NEVADA, HOTEL RAMADA OF NEVADA AND AZTAR CORPORATION Dated as of February 1, 2002
PURCHASE AGREEMENT
BETWEEN
THE PARTIES CONSTITUTING THE XXXXX GROUP,
ADAMAR OF NEVADA,
HOTEL RAMADA OF NEVADA
AND
AZTAR CORPORATION
Dated as of February 1, 2002
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1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
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20. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
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EXHIBITS
Exhibit A The Xxxxx Group
Exhibit B The Land
Exhibit C Assignment and Assumption Agreement
Exhibit D Title Commitment
Exhibit E Escrow Agreement
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THIS PURCHASE AGREEMENT (this "Agreement") made this 1st day of February, 2002, among Adamar of Nevada ("Purchaser"), a Nevada corporation, the parties designated on Exhibit A attached hereto and made a part hereof (hereinafter collectively called the "Xxxxx Group"), Aztar Corporation ("Guarantor"), a Delaware corporation, and Hotel Ramada of Nevada ("Lessee"), a Nevada corporation. Purchaser and the Xxxxx Group, and/or Purchaser, the Xxxxx Group, Guarantor and Lessee, as the case may be, are sometimes hereinafter referred to as "the parties."
WHEREAS, the Xxxxx Group and Purchaser each own fifty percent (50%) of the partnership interests in the partnership known as Tropicana Enterprises (the "Partnership") formed pursuant to that certain Amended and Restated Partnership Agreement dated as of November 1, 1984, as amended, clarified and supplemented by the letter agreement dated as of November 19, 1984, the First Amendment thereto dated as of June 19, 1985, the letter agreement dated as of December 15, 1987 and the Second Amendment thereto dated as of December 20, 1989 (collectively, as such may be further amended, clarified and supplemented from time to time, the "Partnership Agreement"); and
WHEREAS, certain obligations under the Partnership Agreement have been guaranteed by Guarantor pursuant to, inter alia, that certain Tropicana Enterprises Partnership Guaranty and Agreement dated as of December 20, 1989 (any such guaranty, the "Partnership Agreement Guaranty"); and
WHEREAS, the Partnership owns certain real property located in the County of Xxxxx, State of Nevada, commonly known as the Tropicana Hotel/Casino in Las Vegas, Nevada and more particularly described in Exhibit B attached hereto and made a part hereof (the "Land"), together with the improvements ("Improvements") and certain personal property located thereon (the Land, Improvements and personal property hereinafter collectively referred to as the "Tropicana Hotel/Casino"); and
WHEREAS, the Partnership has leased the Tropicana Hotel/Casino to Hotel Ramada of Nevada ("Lessee"), a Nevada corporation, under that certain Amended and Restated Lease (Tropicana Hotel/Casino) dated as of November 1, 1984, as amended, clarified and supplemented by the First Amendment thereto dated as of January 1, 1986, the letter agreement clarifying "Maximum Encumbrance Ceiling" dated as of April 15, 1986, the letter agreement captioned "Memorandum of Date of Completion of Construction under Amended and Restated Lease (Tropicana Hotel/Casino)" dated as of April 15, 1986, and the Second Amendment thereto dated as of December 20, 1989 (collectively, as such may be further amended, clarified and supplemented from time to time, the "Lease"); and
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WHEREAS, certain obligations under the Lease have been guaranteed by Guarantor pursuant to, inter alia, that certain Tropicana Hotel Lease Guaranty and Agreement dated as of December 20, 1989 (any such guaranty, the "Lease Guaranty"); and
WHEREAS, the Partnership, predecessors in interest to the Xxxxx Group and to Trop. C. C., a Nevada general partnership, Ramada Inc., a Delaware corporation f/n/a Ramada Inns, Inc. ("Ramada"), Lessee and Adamar of New Jersey, Inc., a New Jersey corporation ("Ramada-NJ"), are parties to that certain Agreement dated as of September 1, 1980 (the "Trade Name Agreement") pursuant to which Lessee, Ramada and Ramada-NJ were given the right to use the trade name "Tropicana" and certain other names (collectively, the "Trade Name") on the terms and conditions therein described; and
WHEREAS, the Xxxxx Group desires to sell, and Purchaser, pursuant to that certain Option Agreement (the "Option") dated as of February 2, 1998, desires to purchase from the Xxxxx Group the Xxxxx Group's interest in the Partnership, the Tropicana Hotel/Casino, the Lease, the Trade Name and the Trade Name Agreement as such interests are set forth on Exhibit A hereto or may be otherwise held by the Xxxxx Group (the Partnership, the Trade Name and the Trade Name Agreement, collectively, the "Interest," and the Tropicana Hotel/Casino and the Lease, collectively, the "Quitclaim Interest," as such Quitclaim Interest is further defined in subparagraph 1AB hereof) and the Xxxxx Group is willing to convey the Interest and the Quitclaim Interest on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto do hereby agree as follows:
As used in this Agreement, the following terms shall have the following meanings:
A. "Affiliate" shall mean any person or entity controlling, controlled by or under common control with another person or entity.
B. "Assignment and Assumption" shall mean assignments whereby the Xxxxx Group (i) conveys and assigns all of the Xxxxx Group's right, title and interest in and to the Interest and (ii) quitclaims (without representation or warranty) all of the Xxxxx Group's right, title and interest in and to the Quitclaim Interest, to Purchaser and Purchaser assumes the obligations with respect to same. The Assignment and Assumption shall be evidenced by an agreement (the "Assignment and Assumption Agreement") which shall be in form and substance substantially as set forth on Exhibit C annexed hereto and made a part hereof.
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C. "Closing" shall mean the withdrawal by the Xxxxx Group from the Partnership and conveyance of the Interest and the Quitclaim Interest to Purchaser and the payment by Purchaser of the Purchase Price (hereinafter defined) to the Xxxxx Group.
D. "Closing Date" shall mean the thirtieth (30th) calendar day following the date hereof, except (i) the Closing shall occur on the next business day if the thirtieth (30th) calendar day following the date hereof is not a business day, (ii) as otherwise provided in the Option or this Agreement, (iii) as mutually agreed between the parties, or (iv) as such date may be extended or accelerated from time to time, as provided in Paragraphs 5 and 12 hereof.
E. "Xxxxxxx Money Deposit" is defined in subparagraph 3A hereof.
F. "Xxxxxxx Money Deposit Adjustment" is defined in subparagraph 3A hereof.
G. "Existing Mortgage" shall mean the indebtedness of the Partnership set forth at Exception B.21 to the title commitment attached hereto as Exhibit D.
H. "Intentionally Deleted.
I. "Fire Damage" shall mean any fire or other casualty loss affecting the Tropicana Hotel/Casino between the date hereof and the Closing.
J. "Gaming Furnishings and Equipment" shall mean all slot machines, electronic gaming devices, crap tables, blackjack tables, roulette tables, baccarat tables, and big six wheels, located or to be located in the Tropicana Hotel/Casino, and all furnishings and equipment to be used in connection with the operation thereof and which are now on hand or on order, or any replacement of any of the foregoing.
K. "Gaming Supplies" shall mean all cards, dice, gaming chips and plaques, tokens, chip racks, dealing shoes, dice cups, dice sticks, layouts, paddles, roulette balls and other consumable supplies and items to be used in connection with the gaming operations of the Tropicana Hotel/Casino and which are now on hand or on order, or any replacement of any of the foregoing.
L. "Initial Extension Date" is defined in the Option.
M. "Initial Extension Fee" is defined in the Option.
N. "Initial Extension Notice" is defined in the Option.
O. "Initial Extension Term" is defined in the Option.
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P. "Xxxxx Group" is defined in the recitals hereof.
Q. "Xxxxx Group Loan" shall mean that certain indebtedness set forth at Exception B.10 of the title commitment attached hereto as Exhibit D.
R. "Xxxxx Group Representative" is defined in Paragraph 8 hereof.
S. "Licenses" shall mean all licenses, permits, franchises and certificates of operation owned by the Partnership and used in connection with or relating to or required for the ownership, occupancy or operation of any part of the Tropicana Hotel/Casino, including the use of Tropicana Hotel/Casino as a licensed casino facility.
T. "Liens" is defined in subparagraph 9D hereof.
U. "Major Fire Damage" shall mean Fire Damage, the cost of which to repair shall exceed ONE MILLION DOLLARS ($1,000,000).
V. "Minor Fire Damage" shall mean Fire Damage, the cost of which to repair shall not exceed ONE MILLION DOLLARS ($1,000,000).
W. "Option" is defined in the recitals.
X. "Option Fee" is defined in the Option.
Y. "Option Fee Adjustment" is defined in subparagraph 3A hereof.
Z. "Option Notice" is defined in the Option.
AA. "Option Term" is defined in the Option.
AB. "Partnership Permitted Transferee" is defined in subparagraph 16B hereof.
AC. "Permitted Liens" is defined in subparagraph 9D hereof.
AD. "Purchase Price" shall mean the sum of ONE HUNDRED TWENTY MILLION DOLLARS ($120,000,000), which amount is to be paid at Closing in the manner and subject to adjustment as set forth in Paragraph 3 hereof, and as otherwise provided in this Agreement.
AE. "Purchaser" is defined in the recitals hereof.
AF. "Quitclaim Interest" shall mean the Xxxxx Group's entire right, title and interest, if any, in the Tropicana Hotel/Casino and the Lease, in whatever form and to whatever extent such interest may be held by the Xxxxx Group. The parties acknowledge that the Quitclaim Interest includes any interest which the Xxxxx Group may have, whether direct or indirect, in any of the following: (i) the Tropicana Hotel/Casino;
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(ii) the lessor's interest under the Lease; (iii) all easements, rights of way, air rights, privileges, appurtenances and rights, if any, belonging to and inuring to the benefit of the Tropicana Hotel/Casino, including any land lying in the bed of any street, road or avenue in front of or adjoining the Tropicana Hotel/Casino, to the centerline thereof; all rights in and to any strips and gores; all right, title and interest in and to any award made or to be made with respect to any taking or for damage by reason of change of grade of any street, road or right of way; (iv) all the machinery, apparatus, equipment, furniture, fittings, fixtures and articles of personal property of every kind and nature whatsoever (except any property owned by any tenant in the Tropicana Hotel/Casino) owned by the Partnership or located at the Tropicana Hotel/Casino and in any way used in connection with any present occupation or operation of the Tropicana Hotel/Casino as a hotel/casino, including, but without limitation of the generality of the foregoing: (v) Showroom Equipment and Supplies (as hereinafter defined), (w) Gaming Furnishings and Equipment, (x) Gaming Supplies, (y) leases to which the Partnership has entered into in connection with or for the benefit of the Tropicana Hotel/Casino, and (z) printing and stationery, advertising and promotional literature, stencils, menu stock, upholstery material, carpets and rugs, all furniture, furnishings, hotel equipment, beds, bureaus, chiffoniers, chairs, chests, desks, bookcases, tables, curtains, hangings, pictures, divans, couches, chinaware, glassware, silverware, ornaments, kitchen utensils, bars, bar fixtures, safes, stoves, ranges, refrigerators, radios, electrical equipment, lamps, mirrors, heating and lighting fixtures and equipment, linens, blankets, steam and hot water boilers, engines, generators, ice machines, cooling systems, air-conditioning machines, fire prevention and extinguishing apparatus, elevators and fittings, laundry machines, printing presses, individual motor drives for machines, pipes, radiators, bathtubs, plumbing fixtures, gas and electric fixtures, and all similar and/or related articles (excluding the property of any tenants of the Tropicana Hotel/Casino) located in the bedrooms, sitting rooms, bathrooms, boudoirs, halls, closets, kitchens, dining rooms, bar rooms, offices, lobbies, basements and cellars, vaults and other portions of the Tropicana Hotel/Casino; (v) all of the good will in connection with the operation of the Tropicana Hotel/Casino; (vi) any leases and occupancies entered into by the Partnership in connection with the ownership or operation of the Tropicana Hotel/Casino; (vii) any customer lists prepared for the Partnership including lists of transient guests and restaurant and bar patrons and "high roller" lists; (viii) all stock inventory owned or paid for by the Partnership and used in connection with the Tropicana Hotel/Casino and kept at storage facilities not located at the Tropicana Hotel/Casino; and (ix) Vehicles (as hereinafter defined).
AG. "Second Extension Fee" is defined in the Option.
AH. "Second Extension Notice" is defined in the Option.
AI. "Second Extension Term" is defined in the Option.
AJ. "Security Deposit" is defined in subparagraph 3A hereof.
AK. "Showroom Equipment and Supplies" shall mean all sets and scenery, costumes, props and other items of tangible personal property on hand or on order for use in the production of shows in the showroom of the Tropicana Hotel/Casino.
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AL. "Title Company" shall mean Lawyers Title Insurance Company or any other reputable title insurance company selected by Purchaser.
AM. "Transfer" is defined in subparagraph 16A hereof.
AN. "Vehicles" shall mean all limousines, cars, vans, buses, trucks and other vehicles used in connection with the Tropicana Hotel/Casino, together with all equipment, parts and supplies used to service, repair, maintain and equip the foregoing.
In consideration of the Purchase Price to be paid to the Xxxxx Group at the Closing, the Xxxxx Group agrees to transfer, assign and convey the Interest, and to quitclaim the Quitclaim Interest, to Purchaser, and Purchaser agrees to purchase from the Xxxxx Group, the Interest and the Quitclaim Interest.
3. PAYMENT OF THE PURCHASE PRICE
The Purchase Price shall be paid at the Closing and payable, at the Xxxxx Group's option pursuant to notice served upon Purchaser no later than five (5) business days prior to the Closing Date, as follows:
A. (i) THREE MILLION DOLLARS ($3,000,000) (the "Xxxxxxx Money Deposit") by wire transfer of immediately available funds to the Title Company to be held in escrow in accordance with Purchaser's exercise of the Option and the provisions of an escrow agreement (the "Escrow Agreement") substantially in the form set forth on Exhibit E attached hereto and made a part hereof; and
(ii) ONE MILLION DOLLARS ($1,000,000) by assumption of the obligation (pursuant to Article X of the Partnership Agreement) to repay that certain ONE MILLION DOLLAR ($1,000,000) security deposit paid by Lessee to the Partnership pursuant to Article XIII, Paragraph A of the Lease (the "Security Deposit"); and
(iii) One Hundred Nineteen Million Dollars ($119,000,000) by wire transfer to the Xxxxx Group of immediately available funds to First National Bank of Chicago, 0000 Xxxxx Xxxx, Xxxxxxx, XX 00000 (for credit to Guarantee Associates L.L.C., Account No. 1115000227965, ABA No. 000000000) or to an account otherwise designated by the Xxxxx Group Representative; provided, however, that said One Hundred Nineteen Million Dollars ($119,000,000) shall be reduced by (x) the amount of the Option Fee (i.e., Two Million Dollars ($2,000,000)) if the Option Notice is served within the Option Term and subsequent to the commencement of the Initial Extension Term, but prior to the commencement of the Second Extension Term (it being expressly understood and agreed to by Purchaser that in the event Purchaser delivers the Initial Extension Notice, the Initial Extension Fee shall not be applied in reduction to the Option Price), or (y) the amount of three-quarters of the Option Fee (i.e., One Million Five Hundred Thousand Dollars ($1,500,000)) if the Option Notice is
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served within the Option Term and subsequent to the commencement of the Second Extension Term (it being expressly understood and agreed to by Purchaser that in the event Purchaser delivers the Second Extension Notice, the balance of the Option Fee (i.e., Five Hundred Thousand Dollars ($500,000)), and the Initial Extension Fee and the Second Extension Fee shall not be applied in reduction to the Option Price) ((x) or (y), as the case may be, the "Option Fee Adjustment"), and (z) the Xxxxxxx Money Deposit to the extent the same is distributed to the Xxxxx Group pursuant to the terms and conditions of the Escrow Agreement (the "Xxxxxxx Money Deposit Adjustment"); or
B. (i) The Xxxxxxx Money Deposit by wire transfer of immediately available funds to the Title Company to be held in escrow in accordance with Purchaser's exercise of the Option and the provisions of the Escrow Agreement; and
(ii) ONE HUNDRED TWENTY MILLION DOLLARS ($120,000,000) by wire transfer to the Xxxxx Group of immediately available funds to the account specified in sub-subparagraph 3A(iii) above or to an account otherwise designated by the Xxxxx Group Representative; provided, however, that said ONE HUNDRED TWENTY MILLION DOLLARS ($120,000,000) shall be reduced by the Option Fee Adjustment and the Xxxxxxx Money Deposit Adjustment; and provided further, however, that ONE MILLION DOLLARS ($1,000,000) by cashier's, official bank or certified check payable to Purchaser has been delivered to Purchaser in return for Purchaser's assumption of the obligation to repay the Security Deposit.
C. Notwithstanding anything set forth in this Agreement to the contrary, the parties agree that upon the Xxxxx Group's conveyance of the Interest and the Quitclaim Interest and repayment in full or release of the Xxxxx Group Loan as contemplated herein, the Xxxxx Group shall have no liability for any indebtedness of the Partnership.
D. Notwithstanding anything set forth in this Agreement to the contrary, it is expressly understood and agreed between the parties that the Xxxxx Group's conveyance of the Quitclaim Interest as contemplated by this Agreement shall include a quitclaim of all interests whatsoever, if any, the Xxxxx Group may have therein.
A. The Xxxxx Group expressly agrees that the Purchase Price described in Paragraph 3 hereof may be allocable in accordance with, and that it shall file all tax returns in a manner consistent with, the allocations required pursuant to applicable tax law, and that they shall each use commercially reasonable efforts to agree upon a mutually agreeable allocation in a timely manner provided, however, the parties hereto agree that no portion of the Purchase Price shall be allocable to personal property other than the Trade Name.
B. The parties hereto agree that no portion of the Purchase Price is attributable to personal property, goods or services for which any sales tax is due under Nevada law.
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Attached hereto and made a part hereof as Exhibit D is a copy of the title commitment issued to the Purchaser in connection with the proposed purchase. The Xxxxx Group shall not take any action which will result in a change in the state of title as described in said commitment (unless said change is solely a result of the satisfaction or release of the Xxxxx Group Loan or made with the written consent of Purchaser). If the Xxxxx Group does not comply with the provisions of this Paragraph 5 and a title defect not disclosed on Exhibit D is created as a result of the actions of the Xxxxx Group between the date hereof and the Closing Date, Purchaser shall have the right (i) to adjourn the Closing Date for thirty (30) days during which time the Xxxxx Group shall use its good faith efforts to return the state of title to that described in said commitment or (ii) to refuse to purchase the Interest and the Quitclaim Interest and to terminate this Agreement. Defects in title created as a result of the actions of Purchaser or Lessee between the date hereof and the Closing Date shall not permit Purchaser to exercise the rights set forth in this Paragraph 5.
6. DAMAGE BY FIRE OR OTHER CASUALTY
A. Subject to the terms of the Lease, in the event of Minor Fire Damage to the Tropicana Hotel/Casino between the date hereof and the Closing Date, the insurance proceeds in connection with the Minor Fire Damage shall be paid to the Partnership and not distributed, and Purchaser shall proceed with the purchase of the Interest and the Quitclaim Interest as contemplated hereby subject to the Minor Fire Damage. The Partnership shall be responsible for any deductible amount required in connection with such Minor Fire Damage, which responsibility shall in no way affect the Purchase Price, require the Xxxxx Group to make a capital contribution to the Partnership or result in an offset of any distributions from the Partnership to the Xxxxx Group. No part of the insurance proceeds received by the Partnership shall affect the Purchase Price.
B. Subject to the terms of the Lease, in the event of Major Fire Damage, Purchaser shall have the right, exercisable by written notice from Purchaser to the Xxxxx Group within thirty (30) days of the occurrence of such Major Fire Damage, (i) to purchase the Interest and the Quitclaim Interest as provided in Paragraph 2 hereof subject to the Major Fire Damage; or (ii) to cancel this Agreement, in which event Purchaser and the Xxxxx Group shall have no further liability one to the other in connection with this Agreement. In the event Purchaser elects to proceed with the purchase contemplated hereby, then the insurance proceeds paid in connection with the Major Fire Damage shall be paid to the Partnership and not distributed, and shall not affect the Purchase Price. The Partnership shall be responsible for any deductible amount required in connection with such Major Fire Damage, which responsibility shall in no way affect the Purchase Price, require the Xxxxx Group to make a capital contribution to the Partnership or result in an offset of any distributions from the Partnership to the Xxxxx Group.
7. CONDEMNATION AND EMINENT DOMAIN
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If condemnation or eminent domain proceedings are commenced (or threatened by written notice) by any competent public authority against the Tropicana Hotel/Casino or any material part thereof prior to the Closing Date, within fifteen (15) days after the Partnership has received written notice of the commencement or Purchaser has received notice of the threat of such proceedings, the Purchaser shall have the option, exercisable upon written notice from Purchaser to the Xxxxx Group given within such fifteen (15) day period, (i) to close the purchase provided for herein subject to such proceedings, in which event all awards in connection with such condemnation proceedings shall, subject to the terms of the Lease, be the property of the Partnership and shall not be distributed, without any credit or adjustment to the Xxxxx Group therefor, or (ii) to cancel this Agreement, in which event the Xxxxx Group and Purchaser shall have no further liability to the other in connection with this Agreement. If Purchaser elects to close the purchase provided for herein, no part of such condemnation proceeds shall affect the Purchase Price.
The Xxxxx Group hereby appoints Xxxx X. Xxxxxxx (the "Xxxxx Group Representative") as agent for each and every member of the persons or entities constituting the Xxxxx Group for all purposes in connection with the transaction contemplated by this Agreement. Communications to and/or from the Xxxxx Group Representative shall have the same force and effect as communications to and/or from each person or entity constituting the Xxxxx Group and Purchaser shall have the right to rely on notices, communications, consents and agreements of the Xxxxx Group Representative as given and made by and/or on behalf of each and every person or entity constituting the Xxxxx Group. The Xxxxx Group may appoint a substitute Xxxxx Group Representative in accordance with the notice procedures set forth in Paragraph 18 of this Agreement.
9. THE XXXXX GROUP'S REPRESENTATIONS AND WARRANTIES
The Xxxxx Group hereby makes the following representations and warranties, each of which representation and warranty shall: (i) be true both as of the date hereof and the Closing Date, except if the Partnership, Lessee or Purchaser shall cause or consent to any condition which modifies any representation or warranty or if such modification is permitted under this Agreement, (ii) pertain to each constituent of the Xxxxx Group solely to the extent of each constituent's interest in the Interest, and (iii) survive the Closing Date for one (1) year (i.e., Purchaser shall have no right to assert any claim arising out of the representations and warranties contained herein after such one (1) year period), except as otherwise provided herein:
A. The Xxxxx Group has the full right, power, authority and capacity to enter into this Agreement and undertake all of the performances contemplated hereunder; and
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B. The execution and delivery by the Xxxxx Group of this Agreement and the performance of its obligations hereunder will not result in any:
(i) breach, violation or default under, or be in conflict with, any of the terms or conditions of any organizational documents or other agreements of the Xxxxx Group other than agreements in connection with any indebtedness of the Partnership (including the Xxxxx Group Loan, although it is expressly understood and agreed that the Xxxxx Group Loan will nonetheless be repaid in full or released as of the Closing Date ) and any requirements of any governmental authorities in connection with gaming laws, as such may have been heretofore amended and in force on the date hereof; or
(ii) to the best of the Xxxxx Group Representative's knowledge, material and adverse breach or violation of, or default under or be in conflict, in any material and adverse respect, with any of the terms and conditions of any judgment, order, injunction, decree, or ruling of any court or governmental authority, or any agreement or other instrument to which the Xxxxx Group is a party or by which it is bound other than agreements or instruments in connection with any indebtedness of the Partnership (including the Xxxxx Group Loan, although it is expressly understood and agreed that the Xxxxx Group Loan will nonetheless be repaid in full or released as of the Closing Date ) and any requirements of any governmental authorities in connection with any gaming laws, a conflict with, default under, or breach or violation of which would have an adverse effect on the financial condition of the Interest or would materially impair the ability of the Xxxxx Group to perform its obligations hereunder; and
C. The execution and delivery of this Agreement and the performance of the Xxxxx Group's obligations hereunder are duly authorized by all necessary action, and this Agreement, when executed and delivered by the Xxxxx Group, will constitute the legal, valid and binding obligation of the Xxxxx Group enforceable in accordance with its terms, subject to creditor's rights; and
D. The Xxxxx Group has good and valid title to the Interest, free and clear of all mortgages, pledges, security interests, liens, charges, options or other encumbrances of any nature whatsoever (collectively, "Liens"), except for the Liens (the "Permitted Liens") set forth on Schedule I attached hereto and made a part hereof; and
E. As of the date of this Agreement, there is no claim, dispute, action, litigation or proceeding pending or, to the knowledge of the Xxxxx Group Representative, threatened against the Xxxxx Group by or before any governmental entity with respect to the Interest which could reasonably be expected to have a material adverse effect on the Interest or that challenges the validity of this Agreement or the ability of the Xxxxx Group to perform its obligation hereunder to convey to Purchaser good and valid and title to the Interest, excepting, however, any requirements of any governmental authorities in connection with gaming laws and any claims, actions or proceedings of which Purchaser has knowledge, including but not limited to the widening of Reno Road; and
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F. The Xxxxx Group Representative has no knowledge of any notice of any pending or threatened condemnation or eminent domain proceedings which would affect the Tropicana Hotel/Casino or any part thereof. The provisions of this subparagraph shall not survive the Closing Date; and
10. PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser hereby makes the following representations and warranties, each of which representation and warranty shall: (i) be true both as of the date hereof and the Closing Date, except if the Xxxxx Group causes or consents to any condition which modifies any representation or warranty or if such modification is permitted under this Agreement and (ii) survive the Closing Date for one (1) year (i.e., the Xxxxx Group shall have no right to assert any claim arising out of the representations and warranties contained herein after such one (1) year period), except as otherwise provided herein:
A. Purchaser has the full right, power, authority and capacity to enter into this Agreement and undertake all of the performances contemplated hereunder; and
B. The execution and delivery by Purchaser of this Agreement and the performance of its obligations hereunder will not result in any:
(i) breach, violation or default under, or be in conflict with, any of the terms or conditions of any organizational documents or other agreements of Purchaser, other than any requirements of any governmental authorities in connection with any gaming laws (although it is expressly understood that any such requirements shall be fulfilled as of the Closing Date), as such may have been heretofore amended and in force on the date hereof; or
(ii) material and adverse breach or violation of, or default under or be in conflict, in any material and adverse respect, with any of the terms and conditions of any judgment, order, injunction, decree, or ruling of any court or governmental authority, or any agreement or other instrument to which Purchaser is a party or by which it is bound, other than any requirements of any governmental authorities in connection with any gaming laws (although it is expressly understood that any such requirements shall be fulfilled as of the Closing Date), a conflict with, default under, or breach or violation of which would have an adverse effect on the financial condition of the Interest or would materially impair the ability of Purchaser to perform its obligations hereunder; and
C. The execution and delivery of this Agreement and the performance of Purchaser's obligations hereunder are duly authorized by all necessary action, and this Agreement, when executed and delivered by Purchaser, will constitute the legal, valid and binding obligation of Purchaser enforceable in accordance with its terms.
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The parties hereto covenant and agree as follows, all of which covenants shall survive the Closing Date for a period of one (1) year, except as otherwise set forth:
A. The Xxxxx Group hereby covenants that the Interest will remain free and clear of all Liens, except for the Permitted Liens and the Xxxxx Group Loan, from the date hereof through the Closing Date, except to the extent that any Liens are created that are attributable to the actions of Purchaser;
B. The Xxxxx Group hereby covenants that the Interest will be free and clear of all Liens (including the Xxxxx Group Loan), except for the Permitted Liens, as of the Closing Date;
C. The Xxxxx Group or any Affiliate of the Xxxxx Group shall not use the name "Tropicana," or any other name the subject of the Trade Agreement, or any variation thereof after the Closing Date. The provisions of this subparagraph shall survive the Closing Date.
D. Purchaser acknowledges that it is intimately familiar with the day-to-day operation of the Tropicana Hotel/Casino and that it has examined the Tropicana Hotel/Casino and all personal property used in connection therewith and is familiar with the condition thereof. Purchaser acknowledges that it has not relied on any statements, representations or warranties whatsoever of any person in connection therewith, except as expressly set forth in this Agreement. Purchaser agrees that on the Closing Date, the Tropicana Hotel/Casino and such personal property shall be in their "as is" condition as of the Closing Date, and that said condition shall not excuse Purchaser from its obligations hereunder, except as set forth in Paragraphs 6 and 7 hereof. The provisions of this subparagraph shall survive the Closing Date.
E. If at any time after the execution of this Agreement, either Purchaser or the Xxxxx Group becomes aware of information which makes a representation and warranty contained in this Agreement untrue in any material respect, said party shall promptly disclose said information to the other party hereto. If said disclosure is made prior to the Closing Date, and provided the party making such representation or warranty did not (i) know of such untruth at the time the subject representation or warranty was made, (ii) negligently disregard the possibility of such untruth or (iii) take any action to cause the representation or warranty to become untrue, said party shall not be in default under this Agreement, it shall not be a "material default" (hereinafter defined) or give rise to any liability under Paragraph 13 hereof, and the sole remedy of the other party shall be to terminate this Agreement or to proceed to Closing with no adjustment to the Purchase Price. Purchaser and the Xxxxx Group are prohibited from making any claims against the other party hereto after the Closing with respect to any breaches of the other party's representations and warranties contained in this Agreement that the claiming party has actual knowledge of prior to the Closing, unless said breaches fall within the parameters of clauses (i) through (iii) above.
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A. The Closing shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 919 Third Avenue, New York, New York, or at the offices of the attorneys for Purchaser's institutional lender, if such is required, commencing at 10:00 A.M. on the Closing Date.
B. On the Closing Date, the Xxxxx Group shall deliver to Purchaser the following:
(i) The Assignment and Assumption Agreements.
(ii) Any satisfactions of mortgages or similar instruments necessary to satisfy the Xxxxx Group's covenant set forth in subparagraph 11B hereof.
(iii) All information, documentation and other items owned by Purchaser and/or the Partnership and in the possession of the Xxxxx Group, if any, used in, or necessary for, the operation, maintenance and management of the Partnership or the Tropicana Hotel/Casino.
(iv) A waiver of the Xxxxx Group's rights to any loan account or capital account with the Partnership outstanding after the Closing Date.
(v) Any affidavits of title reasonably required from the Xxxxx Group by the Title Company as to the withdrawal from the Partnership and purchase of the Interest and the Quitclaim Interest.
(vi) The Xxxxx Group's outside counsel shall deliver an opinion to Purchaser and its counsel dated the Closing Date, in form and substance reasonably satisfactory to Purchaser and its counsel, as to: (a) the power and authority of the Xxxxx Group to execute and deliver this Agreement and the documents to be executed and delivered pursuant hereto; (b) the due authorization, execution and delivery by the Xxxxx Group of this Agreement and the documents to be executed and delivered hereunder; (c) disclosing or describing any litigation, proceeding or investigation relating to this Agreement or the Xxxxx Group (provided, however, that the Xxxxx Group's outside counsel may rely on a letter from the Xxxxx Group's in-house counsel to such effect, except as to information within its actual knowledge); (d) to the best of its knowledge, the transactions contemplated herein not breaching any agreement, order or judgment (provided, however, that the Xxxxx Group's outside counsel may rely on a letter form the Xxxxx Group's in-house counsel to such effect, except as to information within its actual knowledge), or conflicting with or violating any organizational documents or similar agreements of the Xxxxx Group; and (e) as to the Xxxxx Group, the legality, validity, enforceability and binding effect of this Agreement and all documents executed and delivered on the Closing Date, subject to creditors' rights, as such opinion may be customarily qualified by an attorney practicing in the State of Illinois.
(vii) A certificate of the Xxxxx Group in form and substance reasonably satisfactory to Purchaser's counsel, authorizing the actions to be
14
taken by the Xxxxx Group to effect this Agreement and the execution on behalf of the Xxxxx Group of any and all documents necessary in connection herewith.
(viii) All other documents reasonably required to effectuate the intentions of the parties set forth herein, including but not limited to a quitclaim deed or other instrument in order to effectuate the intentions of the parties set forth in subparagraph 3D hereof.
C. At the Closing, Purchaser shall cause to be delivered to the Xxxxx Group the following:
(i) The Purchase Price.
(ii) The Assignment and Assumption Agreement.
(iii) A corporate resolution of Purchaser, in form and substance reasonably satisfactory to the Xxxxx Group's counsel authorizing the actions to be taken by Purchaser to effect this Agreement and the execution on behalf of Purchaser of any and all documents necessary in connection herewith.
(iv) Incumbency certificate(s), in form and substance reasonably satisfactory to the Xxxxx Group's counsel, for any officer(s) of Purchaser executing any documents in connection with the purchase provided for in Paragraph 2 hereof.
(v) Opinion letter(s) from Purchaser's outside counsel addressed to the Xxxxx Group and its counsel dated the Closing Date, in form and substance reasonably satisfactory to the Xxxxx Group and its counsel, as to: (a) the power and authority of Purchaser to execute and deliver this Agreement and the documents to be executed and delivered pursuant hereto; (b) the due authorization, execution and delivery by Purchaser of this Agreement and the documents to be executed and delivered hereunder; (c) disclosing or describing any litigation, proceeding or investigation relating to this Agreement or the Tropicana Hotel/Casino (provided, however, that the Xxxxx Group's outside counsel may rely on a letter from the Xxxxx Group's in-house counsel to such effect, except as to information within its actual knowledge); (d) to the best of counsel's knowledge, the transactions contemplated herein not breaching any agreement, order or judgment (provided, however, that Purchaser's outside counsel may rely on a letter form Purchaser's in-house counsel to such effect, except as to information within its actual knowledge) or conflicting with or violating the Articles of Incorporation or By-Laws of Purchaser; and (e) as to Purchaser, the legality, validity, enforceability and binding effect of this Agreement and all documents executed and delivered on the Closing Date, subject to creditors' rights.
(vi) All other documents reasonably required to effectuate the intentions of the parties set forth herein.
15
A. Materiality
In the event of any material default, misrepresentation or omission in connection with any representation, warranty, agreement, undertaking or covenant in this Agreement by the Xxxxx Group in accordance with the terms hereof, Purchaser shall have the right by written notice to the Xxxxx Group to terminate this Agreement as Purchaser's sole remedy hereunder. Notwithstanding the foregoing, in the event of such material default Purchaser may, in lieu of said termination right, elect either one of the following two (2) remedies, such elected remedy being Purchaser's sole remedy hereunder: (i) the right to specific performance hereunder, except where the material default relates to a breach by the Xxxxx Group of its representations set forth in subparagraphs 9B(ii) and/or 9E hereof; or (ii) the right to proceed against the Xxxxx Group to the full extent provided in subparagraph 13C below. For the purposes of this Agreement, "material default" shall be deemed to mean a default, misrepresentation and/or omission which would have a substantial and adverse effect on the use and operation of the Tropicana Hotel/Casino or the ownership of the Interest.
B. Damages
(i) The Xxxxxxx Money Deposit is to secure the timely performance by Purchaser of its obligations and undertakings under this Agreement. In the event of a default of Purchaser that is materially adverse to the Xxxxx Group under the provisions of this Agreement, the Xxxxx Group shall retain all of the Xxxxxxx Money Deposit and the interest thereon as the Xxxxx Group's sole right to damages or any other remedy. The parties have agreed that the Xxxxx Group's actual damages, in the event of a default by Purchaser that is materially adverse to the Xxxxx Group, would be extremely difficult or impractical to determine. Therefore, the parties acknowledge that the Xxxxxxx Money Deposit has been agreed upon, after negotiation, as the parties' reasonable estimate of such damages.
(ii) Anything herein to the contrary notwithstanding, each and all of the representations, warranties, covenants, undertakings and agreements in this Agreement made on the part of any trustee, as such, are made and intended not as personal representations, warranties, covenants, undertakings and agreements by the trustee or for the purpose or with the intention of binding said trustee personally but are made and intended for the purpose of binding, and shall bind, only the trust property, and this Agreement is executed and delivered by said trustee not in his own right, but solely in the exercise of the powers conferred upon him as such trustee; no personal liability or personal responsibility is assumed by nor shall at any time be asserted or enforceable against the any trustee, as such, or any of the beneficiaries, as such, under any trust on account of this Agreement or on account of any representation, warranty, covenant, undertaking or agreement of the trustee in this Agreement contained, either expressed or implied, any such personal liability being expressly waived and released.
C. Indemnity
16
(i) Subsequent to the Closing Date (except as provided in subparagraph 13A above) and subject to the limitations set forth in subparagraph 13B above, the Xxxxx Group shall indemnify, defend and agree to save Purchaser harmless from any actual loss, cost or expense whatsoever (but excluding consequential damages) arising out of the breach (provided that such breach is not caused by the actions of Purchaser, Lessee or any Affiliate, successor or assignee of Purchaser or Lessee) of any representation, warranty and/or covenant made or given by such member of the Xxxxx Group in this Agreement which survives the Closing Date, as long as Purchaser delivers notice of such claim on or before the first anniversary of the Closing Date. In the event the claim is asserted by a third party, the Xxxxx Group shall have the right to undertake the defense thereof by representatives of its own choosing. In the event that the Xxxxx Group, within twenty (20) days after notice of the claim, fails to undertake the defense of the claim, Purchaser will (upon further written notice to the Xxxxx Group) have the right to undertake the defense, compromise or settlement of the claim, on behalf of and for the account and risk of the Xxxxx Group, subject to the right of the Xxxxx Group to assume the defense of the claim at any time prior to the settlement, compromise or final determination thereof. If Purchaser undertakes the defense, compromise or settlement of any such claim pursuant to this subparagraph 13C, the Xxxxx Group shall reimburse Purchaser for any reasonable legal fees and expenses incurred in connection therewith within five (5) business days of receipt of a notice seeking such reimbursement. This provision shall survive the Closing Date.
(ii) Subsequent to the Closing Date, Purchaser agrees to indemnify and hold the Xxxxx Group harmless from and against any actual loss, cost or expense whatsoever (but excluding consequential damages) arising after the Closing Date by reason of either (a) the breach of any representation, warranty, agreement, undertaking and/or covenant made or given by Purchaser in connection with this Agreement which survives the Closing Date or (b) the ownership or operation of the Partnership or the Tropicana Hotel/Casino subsequent to the Closing Date; provided that in either event the claim is not attributable to a breach of any obligations of the Xxxxx Group hereunder and, with respect to claims under sub-subparagraph 13C(ii)(a) above, the Xxxxx Group delivers notice of such claim on or before the first anniversary of the Closing Date. In the event that the claim is asserted by a third party, Purchaser shall have the right to undertake the defense thereof by representatives of its own choosing. In the event that Purchaser within twenty (20) days after notice of the claim, fails to undertake the defense of the claim, the Xxxxx Group will (upon further written notice to Purchaser) have the right to undertake the defense, compromise or settlement of the claim, on behalf of and for the account and risk of Purchaser, subject to the right of Purchaser to assume the defense of the claim at any time prior to the settlement, compromise or final determination thereof. If the Xxxxx Group undertakes the defense, compromise or settlement of any such Claim pursuant to this subparagraph 13C, Purchaser shall reimburse the Xxxxx Group for any legal fees and expenses incurred in connection therewith within five (5) business days of receipt of notice seeking such reimbursement. This provision shall survive the Closing Date.
(iii) It is expressly agreed by the parties that (a) the indemnifications provided for in this Paragraph 13 shall only apply to losses, costs and
17
expenses attributable to claims brought by third parties. This provision shall survive the Closing Date.
(iv) Subsequent to the Closing Date, Adamar of Nevada, a Nevada corporation, in its capacity as general partner under the Partnership Agreement, shall indemnify, defend and agree to save the Xxxxx Group harmless from any actual loss, cost or expense whatsoever arising out of either (a) the obligations of Adamar of Nevada under the Partnership Agreement with respect to any claims that arise during the existence of the Partnership, including, without limitation, any indemnification obligations of Adamar of Nevada to the Partnership contained in the Partnership Agreement, which indemnification shall continue to apply to the Xxxxx Group as if Xxxxx Group were a general partner of the Partnership or (b) the ownership or operation of the Tropicana Hotel/Casino with respect to any claims which arise while Adamar of Nevada maintains an ownership interest, either directly or indirectly, or a management interest, in the Tropicana Hotel/Casino. In the event that the claim is asserted by a third party, Adamar of Nevada, Purchaser shall have the right to undertake the defense thereof by representatives of its own choosing. In the event that Adamar of Nevada within twenty (20) days after notice of the claim fails to undertake defense of the claim, the Xxxxx Group will (upon further written notice to Adamar of Nevada) have the right to undertake the defense, compromise or settlement of the claim, on behalf of and for the account and risk of Adamar of Nevada, subject to the right of Adamar of Nevada to assume the defense of the claim at any time prior to the settlement compromise or final determination thereof. If the Xxxxx Group undertakes the defense, compromise or settlement of any such claim pursuant to this subparagraph, Adamar of Nevada shall reimburse the Xxxxx Group for any reasonable legal fees and expenses incurred in connection therewith within five (5) business days of receipt of notice seeking such reimbursement. This provision shall survive the Closing Date.
(v) Subsequent to the Closing Date, Lessee shall indemnify, defend and agree to save the Xxxxx Group harmless from any actual loss, cost or expense whatsoever arising out of any obligations of Lessee under the Lease including, without limitation, any indemnification obligations of Lessee to the Partnership contained in the Lease, which indemnification shall continue to apply to the Xxxxx Group as if Xxxxx Group were a general partner of the Partnership. In the event that the claim is asserted by a third party, Lessee shall have the right to undertake the defense thereof by representatives of its own choosing. In the event that Lessee within twenty (20) days after notice of the claim fails to undertake defense of the claim, the Xxxxx Group will (upon further written notice to Lessee) have the right to undertake the defense, compromise or settlement of the claim, on behalf of and for the account and risk of Lessee, subject to the right of Lessee to assume the defense of the claim at any time prior to the settlement, compromise or final determination thereof. If the Xxxxx Group undertakes the defense, compromise or settlement of any such claim pursuant to this subparagraph, Lessee shall reimburse the Xxxxx Group for any reasonable legal fees and expenses incurred in connection therewith within five (5) business days of receipt of notice seeking such reimbursement. This provision shall survive the Closing Date.
D. Guarantor.
18
(i) Guarantor hereby agrees to irrevocably and unconditionally guaranty each of Adamar of Nevada's and Lessee's indemnification obligations contained in subparagraphs 13C(iv) and (v), respectively, under this Agreement.
(ii) Guarantor agrees that its obligations under this subparagraph 13D are irrevocable, absolute, independent and unconditional. Guarantor agrees that the Xxxxx Group may proceed against Guarantor simultaneously with the commencement of a cause of action against Adamar of Nevada or Lessee.
(iii) If the Xxxxx Group is required to pay, return or restore to Adamar of Nevada or Lessee or any other person any amounts previously paid in respect of this Agreement because of any insolvency proceeding of Adamar of Nevada or Lessee, any stop notice or any other reason, the obligations of Guarantor shall be reinstated and revived and the rights of the Xxxxx Group shall continue with regard to such amounts all as though they have never been paid.
(iv) This subparagraph 13D shall survive the Closing.
E. Releases.
(i) Upon the Closing, Adamar of Nevada, for itself, its Affiliates and their successors and assigns, hereby agrees to release, remise, acquit and forever discharge each member of the Xxxxx Group and their respective affiliates, successors and assigns of and from all manners of actions, causes of actions, suits, debts, sums of money, accounts, covenants, controversies, agreements, judgments, damages, claims and demands whatsoever in law or in equity, either known or unknown, which Adamar of Nevada, in its capacity as a general partner of the Partnership, now has or may at any time in the future have against all or any of the members of the Xxxxx Group, including, but not limited to, claims arising out of the Partnership Agreement, except for claims arising out of any actions asserted by Adamar of Nevada in writing against the Xxxxx Group prior to the Closing or arising out of a breach of any obligation of the Xxxxx Group under this Agreement or any instruments or agreements executed in connection herewith.
(ii) Upon the Closing, Lessee, for itself, its Affiliates and their successors and assigns, hereby agrees to release, remise, acquit and forever discharge each member of the Xxxxx Group and their respective affiliates, successors and assigns of and from all manners of actions, causes of actions, suits, debts, sums of money, accounts, covenants, controversies, agreements, judgments, damages, claims and demands whatsoever in law or in equity, either known or unknown, which Lessee now has or may at any time in the future have against all or any of the members of the Xxxxx Group, including, but not limited to, claims arising under the Lease, except for claims arising out of any actions asserted by Lessee against the Xxxxx Group in writing prior to the Closing or a breach of any obligation of the Xxxxx Group under this Agreement or any instruments or agreements executed in connection herewith.
19
(iii) Upon the Closing, each member of the Xxxxx Group, for itself, its Affiliates and their and its respective heirs, successors and assigns, hereby agrees to release, remise, acquit and forever discharge each of Adamar of Nevada, Lessee, Guarantor and their respective affiliates, successors and assigns of and from all manners of actions, causes of actions, suits, debts, sums of money, accounts, covenants, controversies, agreements, judgments, damages, claims and demands whatsoever in law or in equity, either known or unknown, which such member now has or may at any time in the future have against all or any of Adamar of Nevada, in its capacity as a general partner of the Partnership, Lessee or Guarantor, including, but not limited to, claims arising out of the Partnership Agreement, the Lease, the Partnership Agreement Guaranty and the Lease Guaranty, as the case may be, except for claims arising out of any (a) actions asserted by the Xxxxx Group in writing prior to the Closing against Adamar of Nevada, Lessee or Guarantor or (b) claims arising out of a breach of any obligations of Adamar of Nevada, Lessee or Guarantor under this Agreement or any instruments or agreements executed in connection herewith.
(iv) This subparapraph 13E shall survive the Closing.
A. If any Federal, Nevada, Las Vegas or other taxing authority shall, for any period ending prior to or on the Closing Date, propose an adjustment to any item on any income or franchise tax return of either party hereto relating to such party's interest in the Partnership during such period, the other party hereto hereby covenants and agrees to make available to such party all books, records and other data bearing on such proposed adjustment, to otherwise cooperate with such party, at such party's expense, in connection with such proposed adjustment, and to permit the response to and the manner of handling such proposed adjustment to be within the sole discretion of such party.
B. Each party shall make available to the other party's accountants after the Closing Date all books, records and other documents pertaining to the Partnership which such accountants shall deem necessary or convenient for the preparation of any returns of such party after the Closing.
A. Purchaser's obligations hereunder shall be contingent upon the Xxxxx Group's release of the Xxxxx Group Loan as of the Closing Date.
B. The Xxxxx Group's obligations hereunder shall be contingent upon Purchaser's delivery to the Xxxxx Group on the Closing Date evidence reasonably satisfactory to the Xxxxx Group that (i) the Existing Mortgage has been repaid or (ii) the Xxxxx Group has no further obligation after the Closing Date with respect to the Existing Mortgage.
C. The Xxxxx Group's obligations hereunder shall be suspended during any period during which there is (i) an uncured material monetary default or (ii) an uncured material non-monetary default that is adverse to the Xxxxx Group (in either
20
event, beyond any applicable cure period) by Purchaser under the Partnership Agreement or Lessee under the Lease.
A. Purchaser shall have the absolute right and authority, at any time, without the consent of the Xxxxx Group, to sell, transfer, assign or otherwise dispose of, including, without limitation, by reason of merger, acquisition, consolidation or similar transaction (collectively, "Transfer"), all of its rights hereunder to any person, partnership, corporation, trust, limited liability company or other entity; and any such assignee shall be entitled to all of the rights and powers, and shall assume all of the obligations, of Purchaser hereunder; provided, however, that any such assignment shall not release Adamar of Nevada, Lessee or Guarantor from their respective obligations under sub-subparagraphs 13C(iv) and 13C(v) and subparagraphs 13D and 13E (it being expressly understood, however, that under no circumstances shall Purchaser, Adamar of Nevada as general partner under the Partnership Agreement, Lessee or Guarantor have any indemnification or similar obligations in connection with the actions or inactions of an assignee of Purchaser hereunder); and provided, further, however, that any such assignee shall not be entitled to an adjournment of the Closing in order to comply with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or for any other reason not provided for herein. Purchaser hereby consents, as such consent may be required under the Partnership Agreement or any other instrument to which Purchaser is a party, to the purchase of the Interest and the Quitclaim Interest by Purchaser or any assignee of Purchaser hereunder. Notwithstanding anything to the contrary set forth herein, any permitted assignment of Purchaser's interests hereunder shall not be deemed to supersede any restrictions on assignments by Purchaser under the Partnership Agreement, Lessee under the Lease or Guarantor under Partnership Agreement Guaranty and the Lease Guaranty, nor shall any such permitted assignment release any of the foregoing from their obligations thereunder (it being expressly understood, however, that said restrictions shall in no way restrict the right of Purchaser to assign its rights hereunder).
B. The Xxxxx Group shall not, during the term of this Agreement, Transfer the Interest or the Quitclaim Interest, to the extent the Interest or the Quitclaim Interest may be otherwise assignable, to any person, partnership, corporation, trust, limited liability company or other entity without the prior written consent of Purchaser; provided, however, that each member of the Xxxxx Group may Transfer the Interest and the Quitclaim Interest to any person, partnership, corporation, trust, limited liability company or other entity permitted without the consent of Purchaser pursuant to the terms and conditions of the Partnership Agreement (each a "Partnership Permitted Transferee") or to any person, partnership, corporation, trust, limited liability company or other entity controlling, controlled by or under common control with said Xxxxx Group member or Partnership Permitted Transferee. Any such permitted assignee of a member of the Xxxxx Group shall be entitled to all of the rights and powers, and shall assume all of the obligations, of the Xxxxx Group hereunder.
21
The Xxxxx Group and Purchaser each represent and warrant to the other that it has not dealt with any broker, finder or similar agent in connection with the transaction provided for in this Agreement. The Xxxxx Group and Purchaser agree to indemnify and hold each other harmless from and against any loss, claim, liability and expense (including, without limitation, reasonable attorneys' fees) incurred by, imposed upon or payable by the indemnified party in connection with claims of any brokers or persons for commissions or finders' or similar fees upon or in connection with this Agreement or the transaction contemplated hereby where such claims arise from the communications or action of the indemnifying party. This Paragraph shall survive the Closing.
Any notice, designation, consent, approval or other communication required or permitted to be given pursuant to this Agreement, shall be given in writing and shall be sent by hand delivery, a reputable, nationally recognized overnight courier or by registered or certified mail, postage prepaid, return receipt requested, addressed as follows and, if mailed within the United States, shall be deemed to have been given three (3) business days after so mailed:
If to the Xxxxx Group:
Guarantee Associates, L.L.C.
0000 Xxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
with a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Purchaser:
Adamar of Nevada
c/o Aztar Corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
or, in either case, to such other address as either party may have previously notified the other pursuant to the provisions of this Paragraph 18.
19. AFFIRMATION OF LEASE AND PARTNERSHIP AGREEMENT
A. Lessee and Guarantor hereby covenant that the Lease and Lease Guaranty, respectively, are and shall remain in full force and effect, notwithstanding the entering into of this Agreement, and that the obligations of Lessee and Guarantor and rights of the lessor thereunder shall (i) not be affected by the execution of this Agreement (or any default of the Xxxxx Group hereunder) or the Closing and (ii) continue in accordance with the provisions thereof.
B. Purchaser and Guarantor hereby covenant that the Partnership Agreement and the Partnership Agreement Guaranty, respectively, are and shall remain in full force and effect, notwithstanding the entering into of this Agreement, and that the obligations of Purchaser and Guarantor and rights of the Xxxxx Group thereunder shall (i) not be affected by the execution of this Agreement (or any default of the Xxxxx Group hereunder) or the Closing and (ii) continue in accordance with the provisions thereof.
All understandings and agreements heretofore had between the parties hereto are merged in this Agreement, which alone fully and completely expresses their agreement. This Agreement has been entered into after full investigation, neither party relying upon any statement or representation not embodied herein.
21. NO ORAL AMENDMENT OR TERMINATION
This Agreement may not be amended or terminated orally. Any purported written amendment or termination of this Agreement shall only be effective if executed by the party against whom enforcement is sought.
All of the terms and conditions of this Agreement shall not survive Closing, except as specifically set forth herein. The absence of a statement that any representation, warranty, covenant or agreement set forth in this Agreement shall survive Closing or shall not survive the Closing, as the case may be, shall only affect that specific representation, warranty, covenant and/or agreement.
23
This Agreement shall be construed and governed by the laws of the State of New York.
There shall be no merger of the Lease or of any leasehold estate created thereby by reason of the fact that the same person may acquire or hold, directly or indirectly, the Lease or any leasehold in the Land or the Improvements and any interest in the fee to same.
Any provision of this Agreement that is not enforceable under the laws of the State of New York shall be construed to be severable from the other provisions hereof without affecting the enforceability of the remaining provisions. In no event shall this Agreement be interpreted to require more than one Closing hereunder or that Purchaser shall have the right to purchase less than the entire Interest and Quitclaim Interest.
Whenever the singular or the masculine gender is used in this Agreement, it shall be construed as if the plural, or the feminine or neuter gender, respectively, had been used where the context so requires and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made.
This Agreement shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto.
In addition to the obligations required to be performed hereunder by the parties at the Closing, the parties agree from time to time, whether before, at or after the Closing, to perform such other acts, and to execute, acknowledge and deliver such other instruments, documents and other materials as either party may reasonably request in order to effectuate the consummation of the transaction contemplated hereunder, if and to the extent that responding to such request would not be materially adverse to the responding party.
This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one contract, binding on all of the parties hereto, notwithstanding that all the parties hereto are not signatories to the original or the same counterpart.
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written.
PURCHASER:
Adamar of Nevada
By: X.X. XXXXXXXXX, XX.
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Secretary
THE XXXXX GROUP:
XXXXXX XXXXXX
Xxxxxx Xxxxxx, not individually but as Trustee of the Xxxx X. Xxxxxx Capital Trust U/A/D June 17, 1985
XXXX XXXXXXX
Xxxx Xxxxxxx, not individually but as Trustee of the Xxxx X. Xxxxxx Capital Trust U/A/D June 17, 0000
XXXX X. XXXXXX
Xxxx X. Xxxxxx, not individually but as Trustee of (1) the Xxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 and (2) Xxx X. Xxxxx Capital Trust U/A/D June 17, 1985
XXX X. XXXXX
Xxx X. Xxxxx, not individually but as Trustee of (1) the Xxxx Xxxxxxx Capital Trust U/A/D June 17, 1985, (2) the Xxxxx Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985, (3) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985, (4) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 and (5) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985
XXXXXX XXXXXXX
Xxxxxx Xxxxxxx, not individually but as Trustee of (1) the Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 and (2) the Xxxxxxx X. Xxxxxx, Xx. Capital Trust U/A/D June 17, 1985
XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, not individually but as Trustee of the Xxx Xxxxxx Capital Trust U/A/D June 17, 1985
XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, not individually but as Trustee of (1) the Xxxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 and (2) the Xxxxxxx X. Xxxxxx, Xx. Capital Trust U/A/D June 17, 1985
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx., not individually but as Trustee of the (1) the Xxxxx Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985, (2) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985, (3) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985, (4) the Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985, (5) the Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985, (6) the Xxx Xxxxxx Capital Trust U/A/D June 17, 1985 and (7) the Xxxxxx Xxxxxxx Capital Trust X/X/X Xxxx 00, 0000
XXXXXX:
Hotel Ramada of Nevada
By: X.X. XXXXXXXXX, XX.
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Secretary
GUARANTOR:
Aztar Corporation
By X.X. XXXXXXXXX, XX.
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President - Administration
& Secretary
EXHIBIT A
THE XXXXX GROUP
The interests of the Xxxxx Group as partners in the Partnership are as follows:
|
The Xxxxx Group |
Percentage Interest in Partnership |
|
|
Xxxx X. Xxxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxx X. Xxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxx Xxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxxxx X. Xxxxxx, Xx. Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
A-1
EXHIBIT B
LEGAL DESCRIPTION OF LAND
The Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M.
EXCEPTING from the hereinabove described property that portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87°
36' East a distance of 50.06 feet to a point on the East right of way line of U.S. Highway No. 91, this point being the true point of beginning;
THENCE South 87°
36' East along the North line of said Section a distance of 1267.20 feet to a point;
THENCE South 0°
25'00" East a distance of 101.41 feet to a point;
THENCE South 89°
45'02" West a distance of 1265.75 feet to a point;
THENCE North 0°
22'00" West a distance of 159.98 feet to the TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed to the State of Nevada for public highway by Deed dated December 15, 1952 and recorded August 11, 1953 as Document No. 411231, Xxxxx County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Xxxxx County for road purposes by Document No. 104313 and recorded April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed to Xxxxx County for road and public utility purposes by Document No. 551260, and recorded February 4, 1976 in Book 592 of Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM any conveyance of record known to Purchaser and any conveyance in connection with the widening of Reno Road.
B-1
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made and effective as of the ___ day of __________, 199__ (the "Closing Date"), between the parties designated on Annex A attached hereto and made a part hereof (hereinafter collectively called "Assignor"), and Adamar of Nevada, a Nevada corporation ("Assignee"). Assignor and Assignee are sometimes hereinafter referred to as "the parties."
WHEREAS, Assignor and Assignee each own fifty percent (50%) of the partnership interests in the partnership known as Tropicana Enterprises (the "Partnership") formed pursuant to that certain Amended and Restated Partnership Agreement dated as of November 1, 1984, as amended, clarified and supplemented by the letter agreement dated as of November 19, 1984, the First Amendment thereto dated as of June 19, 1985, the letter agreement dated as of December 15, 1987 and the Second Amendment thereto dated as of December 20, 1989 (collectively, as such may be further amended, clarified and supplemented from time to time, the "Partnership Agreement"); and
WHEREAS, the Partnership owns certain real property located in the County of Xxxxx, State of Nevada, commonly known as the Tropicana Hotel/Casino in Las Vegas, Nevada and more particularly described in Annex B attached hereto and made
a part hereof (the "Land"), together with the improvements ("Improvements") and certain
C-1
personal property located thereon (the Land, Improvements and personal property hereinafter collectively referred to as the "Tropicana Hotel/Casino"); and
WHEREAS, the Partnership has leased the Tropicana Hotel/Casino to Hotel Ramada of Nevada ("Lessee"), a Nevada corporation, under that certain Amended and Restated Lease (Tropicana Hotel/Casino) dated as of November 1, 1984, as amended, clarified and supplemented by the First Amendment thereto dated as of January 1, 1986, the letter agreement clarifying "Maximum Encumbrance Ceiling" dated as of April 15, 1986, the letter agreement captioned "Memorandum of Date of Completion of Construction under Amended and Restated Lease (Tropicana Hotel/Casino)" dated as of April 15, 1986, and the Second Amendment thereto dated as of December 20, 1989 (collectively, as such may be further amended, clarified and supplemented from time to time, the "Lease"); and
WHEREAS, the Partnership, predecessors in interest to Assignor and to Trop. C. C., a Nevada general partnership, Ramada Inc., a Delaware corporation f/n/a Ramada Inns, Inc. ("Ramada"), Lessee and Adamar of New Jersey, Inc., a New Jersey corporation ("Ramada-NJ"), are parties to that certain Agreement dated as of September 1, 1980 (the "Trade Name Agreement") pursuant to which Lessee, Ramada and Ramada-NJ were given the right to use the trade name "Tropicana" and certain other names (collectively, the "Trade Name") on the terms and conditions therein described; and
WHEREAS, pursuant to the terms and conditions of that certain Purchase Agreement (the "Purchase Agreement") dated as of ________ __, 199__, Assignor has agreed to assign to Assignee all of its right, title and interest in, to and under Tropicana
C-2
Hotel/Casino, the Lease, the Partnership, the Trade Name and the Trade Name Agreement as such interests are set forth on Annex A hereto or may be otherwise held by the Xxxxx Group (the Partnership, the Trade Name and the Trade Name Agreement, collectively, the "Interest," and the Tropicana Hotel/Casino and the Lease, collectively, the "Quitclaim Interest," as such Quitclaim Interest is further defined on Annex C hereto) upon the terms and conditions hereof; and
WHEREAS, Assignee desires to assume all of Assignor's obligations under the Interest and the Quitclaim Interest commencing on the Closing Date, upon the terms and conditions hereof.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby (a) assigns, transfers and sets over to Assignee, effective as of the Closing Date, all of its right, title and interest in, to and under the Interest and (b) quitclaims all of its right, title and interest in, to and under the Quitclaim Interest, upon the terms and conditions herein set forth, to have and to hold the same unto Assignee, its successors and assigns, subject to all of the respective terms, covenants and conditions of the Partnership Agreement, the Lease and the Trade Name Agreement.
2. Assignee hereby accepts (a) the assignment of all of Assignor's right, title and interest in, to and under the Interest and (b) the quitclaim of all of
C-3
Assignor's right, title and interest in, to and under the Quitclaim Interest, effective as of the Closing Date, upon the terms and conditions herein set forth and hereby assumes and shall observe all of the obligations arising out of the Interest and the Quitclaim Interest, including, without limitation, terms, covenants and conditions of the Partnership Agreement, the Lease and the Trade Name Agreement arising from and after the Closing Date.
3. Assignor and Assignee shall indemnify each other pursuant to the terms and conditions pertaining to indemnification set forth in the Purchase Agreement. Nothing contained herein shall limit the indemnification obligations of Adamar of Nevada, a Nevada corporation, Lessee, or Aztar Corporation, a Delaware corporation, as such obligations are set forth in the Purchase Agreement.
4. Assignor's assignment of the Interest and quitclaim of the Quitclaim Interest to Assignee is made without any representations or warranties whatsoever, except for the representations and warranties expressly set forth in the Purchase Agreement. Assignor's and Assignee's obligations and liabilities hereunder are limited pursuant to Paragraph 13 of the Purchase Agreement, the provisions of which are incorporated herein by reference
5. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns.
6. This Assignment shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable principles of conflicts of laws.
C-4
7. This Assignment may be executed in two or more counterparts, all of which shall be considered one and the same Assignment.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date first written above.
PURCHASER:
Adamar of Nevada
By: ______________________________
Name:
Title:
THE XXXXX GROUP:
____________________________________
Xxxxxx Xxxxxx, not individually but as Trustee
of the Xxxx X. Xxxxxx Capital Trust U/A/D
June 17, 1985
____________________________________
Xxxx Xxxxxxx, not individually but as Trustee
of the Xxxx X. Xxxxxx Capital Trust U/A/D
June 17, 1985
____________________________________
Xxxx X. Xxxxxx, not individually but as Trustee
of (1) the Xxxx Xxxxxxx Capital Trust U/A/D
June 17, 1985 and (2) the Xxx X. Xxxxx Capital
Trust U/A/D June 17, 1985
C-5
____________________________________
Xxx X. Xxxxx, not individually but as Trustee
of (1) the Xxxx Xxxxxxx Capital Trust U/A/D
June 17, 1985, (2) the Xxxxx Xxxxx Xxxxxxx
Capital Trust U/A/D June 17, 1985, (3) the
Xxxxx Xxxxx capital Trust U/A/D June 17, 1985,
(4) the Xxxxx Xxxxx Capital Trust U/A/D June
17, 1985 and (5) the Xxxxx Xxxxx Capital
Trust U/A/D June 17, 1985
____________________________________
Xxxxxx Xxxxxxx, not individually but as Trustee
of (1) the Xxxxx Xxxxxxx Capital Trust U/A/D
June 17, 1985 and (2) the Xxxxxxx X. Xxxxxx, Xx.
Capital Trust U/A/D June 17, 1985
____________________________________
Xxxxxxxxx Xxxxx, not individually but as Trustee
of the Xxx X. Xxxxx Capital Trust U/A/D June 17,
1985
____________________________________
Xxxxxxx X. Xxxxxx, not individually but as Trustee
of the Xxx Xxxxxx Capital Trust U/A/D June 17,
1985
____________________________________
Xxxx X. Xxxxxxx, not individually but as Trustee
of (1) the Xxxxxx Xxxxxxx Capital Trust U/A/D
June 17, 1985 and (2) the Xxxxxxx X. Xxxxxx, Xx.
Capital Trust U/A/D June 17, 1985
C-6
____________________________________
Xxxxxxx X. Xxxxxx, Xx., not individually but as
Trustee of (1) the Xxxxx Xxxxx Xxxxxxx Capital
Trust U/A/D June 17, 1985, (2) the Xxxxx Xxxxx
Capital Trust U/A/D June 17, 1985, (3) the Xxxxx
Xxxxx Capital Trust U/A/D June 17, 1985, (4)
the Xxxxx Xxxxx Capital Trust U/A/D June 17,
1985, (5) the Xxxxx Xxxxxxx Capital Trust
U/A/D June 17, 1985, (6) the Xxx Xxxxxx Capital
Trust U/A/D June 17, 1985 and (7) the Xxxxxx
Xxxxxxx Capital Trust X/X/X Xxxx 00, 0000
XXXXXX:
Hotel Ramada of Nevada
By: ______________________________
Name:
Title:
C-7
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of __________, 199__ by of Adamar of Nevada, a Nevada corporation, on behalf of said corporation.
______________________________
Notary Public
[SEAL]
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
C-8
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
C-9
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
C-10
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
C-11
STATE OF ______________ )
) SS:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________, 199__ by ________________, trustee of , on behalf of said trust.
______________________________
Notary Public
[SEAL]
C-12
The interests of the Xxxxx Group as partners in the Partnership are as follows:
|
The Xxxxx Group |
Percentage Interest in Partnership |
|
|
Xxxx X. Xxxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxx X. Xxxxx Capital Trust U/A/D June 17, 1985 |
5.55555 |
|
|
Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxx Xxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxxxx X. Xxxxxx, Xx. Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Xxxxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
|
|
Xxxxx Xxxxx Capital Trust U/A/D June 17, 1985 |
4.166675 |
C-13
ANNEX B TO EXHIBIT C
LEGAL DESCRIPTION OF LAND
The Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M.
EXCEPTING from the hereinabove described property that portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87°
36' East a distance of 50.06 feet to a point on the East right of way line of U.S. Highway No. 91, this point being the true point of beginning;
THENCE South 87°
36' East along the North line of said Section a distance of 1267.20 feet to a point;
THENCE South 0°
25'00" East a distance of 101.41 feet to a point;
THENCE South 89°
45'02" West a distance of 1265.75 feet to a point;
THENCE North 0°
22'00" West a distance of 159.98 feet to the TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed to the State of Nevada for public highway by Deed dated December 15, 1952 and recorded August 11, 1953 as Document No. 411231, Xxxxx County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Xxxxx County for road purposes by Document No. 104313 and recorded April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed to Xxxxx County for road and public utility purposes by Document No. 551260, and recorded February 4, 1976 in Book 592 of Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM any conveyance of record known to Purchaser and any conveyance in connection with the widening of Reno Road.
C-14
ANNEX C TO EXHIBIT C
QUITCLAIM INTEREST
A. "Gaming Furnishings and Equipment" shall mean all slot machines, electronic gaming devices, crap tables, blackjack tables, roulette tables, baccarat tables, and big six wheels, located or to be located in the Tropicana Hotel/Casino, and all furnishings and equipment to be used in connection with the operation thereof and which are now on hand or on order, or any replacement of any of the foregoing.
B. "Gaming Supplies" shall mean all cards, dice, gaming chips and plaques, tokens, chip racks, dealing shoes, dice cups, dice sticks, layouts, paddles, roulette balls and other consumable supplies and items to be used in connection with the gaming operations of the Tropicana Hotel/Casino and which are now on hand or on order, or any replacement of any of the foregoing.
C. "Quitclaim Interest" shall mean Assignor's entire interest, if any, in the Tropicana Hotel/Casino and the Lease, in whatever form and to whatever extent such interest may held by the Assignor. The parties acknowledge that the Quitclaim Interest includes any interest which the Assignor may have, whether direct or indirect, in any of the following: (i) the Tropicana Hotel/Casino; (ii) the lessor's interest under the Lease; (iii) all easements, rights of way, air rights, privileges, appurtenances and rights, if any, belonging to and inuring to the benefit of the Tropicana Hotel/Casino, including any land lying in the bed of any street, road or avenue in front of or adjoining the Tropicana Hotel/Casino, to the centerline thereof; all rights in and to any strips and gores; all right, title and interest in and to any award made or to be made with respect to any taking or for damage by reason of change of grade of any street, road or right of way; (iv) all the machinery, apparatus, equipment, furniture, fittings, fixtures and articles of personal property of every kind and nature whatsoever (except any property owned by any tenant in the Tropicana Hotel/Casino) owned by the Partnership or located at the Tropicana Hotel/Casino and in any way used in connection with any present occupation or operation of the Tropicana Hotel/Casino as a hotel/casino, including, but without limitation of the generality of the foregoing: (v) Showroom Equipment and Supplies (as hereinafter defined), (w) Gaming Furnishings and Equipment, (x) Gaming Supplies, (y) leases to which the Partnership has entered into in connection with or for the benefit of the Tropicana Hotel/Casino, and (z) printing and stationery, advertising and promotional literature, stencils, menu stock, upholstery material, carpets and rugs, all furniture, furnishings, hotel equipment, beds, bureaus, chiffoniers, chairs, chests, desks, bookcases, tables, curtains, hangings, pictures, divans, couches, chinaware, glassware, silverware, ornaments, kitchen utensils, bars, bar fixtures, safes, stoves, ranges, refrigerators, radios, electrical equipment, lamps, mirrors, heating and lighting fixtures and equipment, linens, blankets, steam and hot water boilers, engines, generators, ice machines, cooling systems, air-conditioning machines, fire prevention and extinguishing apparatus, elevators and fittings, laundry machines, printing presses, individual motor drives for machines, pipes, radiators, bathtubs, plumbing fixtures, gas and electric fixtures, and all similar and/or related articles (excluding the property of any tenants of the Tropicana Hotel/Casino)
C-15
located in the bedrooms, sitting rooms, bathrooms, boudoirs, halls, closets, kitchens, dining rooms, bar rooms, offices, lobbies, basements and cellars, vaults and other portions of the Tropicana Hotel/Casino; (v) all of the good will in connection with the operation of the Tropicana Hotel/Casino; (vi) any leases and occupancies entered into by the Partnership in connection with the ownership or operation of the Tropicana Hotel/Casino; (vii) any customer lists prepared for the Partnership including lists of transient guests and restaurant and bar patrons and "high roller" lists; (viii) all stock inventory owned or paid for by the Partnership and used in connection with the Tropicana Hotel/Casino and kept at storage facilities not located at the Tropicana Hotel/Casino; and (ix) Vehicles (as hereinafter defined).
D. "Showroom Equipment and Supplies" shall mean all sets and scenery, costumes, props and other items of tangible personal property on hand or on order for use in the production of shows in the showroom of the Tropicana Hotel/Casino.
E. "Vehicles" shall mean all limousines, cars, vans, buses, trucks and other vehicles used in connection with the Tropicana Hotel/Casino, together with all equipment, parts and supplies used to service, repair, maintain and equip the foregoing.
C-16
EXHIBIT D
TITLE COMMITMENT
(Please see attached.)
Exhibit D
LAWYERS TITLE OF NEVADA
A Subsidiary of
Lawyers Title Insurance Corporation
0000 X. Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone (000) 000-0000
|
Lawyers Title Insurance Corp. |
|
Dated as of January 28, 2002 at 7:30 a.m.
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
LAWYERS TITLE OF NEVADA, INC.
hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception in Schedule B or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached list. Copies of the Policy forms should be read. They are available from the office which issued this report.
THIS REPORT, (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED.
The form of Policy of Title Insurance contemplated by this report is:
|
1. |
California Land Title Association Standard Coverage Policy - 1990 |
[] |
|
|
D-1
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE A
The estate or interest in the land hereinafter described or referred to covered by this report is:
A FEE
Title to said estate or interest at the date hereof is vested in:
TROPICANA ENTERPRISES, a Nevada General Partnership
The land referred to in this report is situated in the State of Nevada, County of Xxxxx and is described as follows:
|
The Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, Township 21 South, |
D-2
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE A
Legal Continued
FURTHER EXCEPTING THEREFROM that portion as conveyed to Xxxxx County for road purposes by Document No. 104313 and recorded April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed to Xxxxx County for road and public utility purposes by Document No. 262900, recorded February 22, 1973 in Book 303 and by Document No. 551260, recorded February 4, 1976 in Book 592 of Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM that portion as deeded to Xxxxx County by Grant, Bargain, Sale Deed, recorded June 9, 1999 in Book 990609 as Document No. 01394, Official Records, Xxxxx County, Nevada.
AND FURTHER EXCEPTING THEREFROM that portion as deed to the State of Nevada, Department of Transportation, by Deed recorded November 24, 1999 in Book 991124 as Document No. 01881, Official Records, Xxxxx County, Nevada.
D-3
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE A-1
|
PLEASE REFER TO THE FOLLOWING "NOTE AND REOUIREMENT SECTION" FOR ANY INFORMATION NECESSARY TO COMPLETE THIS TRANSACTION: |
NOTES AND REQUIREMENTS
|
1. |
As a condition to the issuance of the requested policy(s) of Title Insurance, we hereby request that we be furnished with the following listed items prior to the issuance of such Policy(s): |
|
A copy of the Partnership Agreement referred to in the Vesting set forth in this report, and of any amendments and/or modifications thereto. |
|
|
Additional requirements and/or exceptions may be made after review of said partnership agreement. |
|
|
2. |
This Company will require that a correct ALTA survey of said land, conforming to the minimum standard requirements of the ALTA/ACSM Land Title Survey be submitted. It is recommended that the surveyor contact this Company prior to starting the survey. |
|
3. |
There is located on said land a hotel/casino, known as: |
|
0000 X. Xxx Xxxxx Xxxx. |
D-4
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
|
AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND IN THE POLICY FORM DESIGNATED ON THE FACE PAGE OF THIS REPORT WOULD BE AS FOLLOWS: |
|
1. |
State and County taxes for the Fiscal Year of 2001-2002; a lien now due and payable in the total amount |
||
|
Assessor's Parcel No. |
162-28-101-001 |
||
|
2. |
A Special Assessment by the Improvement District shown below: |
||
|
District No. : |
Xxxxx County Improvement District No. 97A |
||
|
This parcel is being billed and collected by A M G - call 000-0000 |
|||
|
3. |
A Special Assessment by the Improvement District shown below: |
||
|
District No. : |
Xxxxx County Improvement Xxxxxxxx Xx. 00X |
||
|
4. |
The lien of supplemental taxes, if any, assessed pursuant to the provision of Nevada Revised Statute 361.260. |
||
|
5. |
The property described herein is located within the boundaries of the Xxxxx County Sanitation District |
||
|
6. |
Water rights, claims or title to water. |
||
|
7. |
Reservations in the Patent from the State of Nevada recorded July 12, 1930 in Book 16 of Deeds, Page |
||
D-5
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
8. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
SOUTHERN NEVADA POWER COMPANY |
|
|
9. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
COUNTY OF XXXXX |
|
|
10. |
A Deed of Trust to secure an indebtedness of the amount shown below, and any other obligations |
|
|
Amount: |
$7,400,000.00 |
|
|
An agreement to modify the terms and provisions of said deed of trust as therein provided |
||
|
Executed by: |
XXXXXX XXXXX, XXXX XXXXX XXXXXX, XXXX XXX XXXXXXX, |
|
|
By the provision of an agreement |
||
|
Recorded: |
November 20, 1984 |
|
|
Said instrument was made subordinate to the lien of the document or interest shown: Exception No. 21 |
||
D-6
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
By the provision of an agreement |
||
|
Recorded: |
November 20, 1984 |
|
|
Said instrument was made subordinate to the lease shown: |
||
|
Recorded: |
August 2, 1989 |
|
|
Said instrument was made subordinate to the lien of the document or interest shown: |
||
|
Dated: |
July 31, 1989 |
|
|
Said instrument was made subordinate to the lease: |
||
|
Trustee: |
NEVADA TITLE COMPANY, a Nevada corporation |
|
|
By the provision of an agreement |
||
|
Recorded: |
October 5, 1994 |
|
|
Said instrument was made subordinate to the lien of the document or interest shown: |
||
|
Recorded: |
October 5, 1994 |
|
|
Said instrument was made subordinate to the lien of the document or interest shown: |
||
D-7
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
11. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
SOUTHERN NEVADA TELEPHONE DIVISION, CENTRAL |
|
|
It is further agreed that this grant be used for underground facilities only. |
||
|
12. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
COUNTY OF XXXXX |
|
|
13. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
LAS VEGAS VALLEY WATER DISTRICT |
|
|
Thence South 87° 36'00" East along the North line of said Section 28, a distance of 50.06 feet to a point on the East right-of-way line of U.S. Xxxxxxx Xx. 00; thence South 00° 22'00" East along said East right-of-way line a distance of 367.66 feet to the TRUE POINT OF BEGINNING; thence North 89° 38'00" East a distance of 15.00 feet to a point; thence South 00° 22'00" East a distance of 10.00 feet to a point; thence South 89° 38'00" West a distance of 15.00 feet to a point; thence South 00° 22'00" West a distance of 10.00 feet to the TRUE POINT OF BEGINNING. |
||
D-8
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
14. |
Terms, covenants and provisions of that certain "Agreement for Electric Service Within a Building" and |
|
|
Between: |
NEVADA POWER COMPANY AND XXXXXX XXXXX |
|
|
15. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
NEVADA POWER COMPANY |
|
|
COMMENCING at the Northwest corner of said Section 28; thence South 87°
36'00" East, along the North line of said Section 28, 1317.26 feet; thence South 00°
25'00" East, 101.41 feet to Grantor's Northeast property corner; thence South 18°
58'25" West, 85.40 feet to the POINT OF BEGINNING; thence North 61°
27'56" West, 161.10 feet; thence South 89°
35'00" West, 734.50 feet; thence South 83°
57'50" West, 105.50 feet; thence South 87°
21'50" West, 97.00 feet; thence North 86°
08'10" West, 97.00 feet to a point of curvature of a curve to the left whose tangent bears the last described course; thence along said curve, whose radius is 62.00 feet, through a central angle of 83°
28'20", an arc length of 90.33 feet; thence South 04°
05'30" West, 113.90 feet; thence South 25°
39'50" East, 57.00 feet; thence South 69°
51'00" East, 28.80 feet; thence South 06°
05'30" West, 6.90 feet to a point hereinafter designated as Point "A" said Point "A" also being the point of ending. |
||
D-9
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
FURTHER right of ingress and egress to and over said parcel(s); together with permission to cut and trim brush and trees, as deemed necessary, to insure safe and proper operation of said line or lines. |
||
|
16. |
Terms, covenants and provisions of that certain "Agreement" and the effect of any failure to comply with |
|
|
Recorded: |
May 2, 1980 |
|
|
17. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
LAS VEGAS VALLEY WATER DISTRICT |
|
|
Thence North 88o49'00" West along the South line of said Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28, a distance of 230.00 feet; thence departing from said South line North 01o11'00" East a distance of 35.00 feet to the TRUE POINT OF BEGINNING; thence continuing North 01o11'00" East a distance of 10.00 feet; thence North 88o49'00" West a distance of 20.00 feet; thence South 01o11'00" West a distance of 10.00 feet; thence South 88o49'00' East a distance of 20.00 feet to the TRUE POINT OF BEGINNING. |
||
|
18. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
LAS VEGAS VALLEY WATER DISTRICT |
|
|
COMMENCING at the Southeast corner of said Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28; thence North 88o49'00" West along the South line of said Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 28 a distance of 230.00 feet; thence departing from said South line North 01o11'00" East a distance of 35.00 feet to the TRUE POINT OF BEGINNING; thence continuing North 01o11'00" East a distance of 10.00 feet; thence North 88o49'00": West a distance of 20.00 feet; thence South 01o11'00" West a distance of 10.00 feet; thence Xxxxx 00x00'00" Xxxx a distance of 20.00 feet to the TRUE POINT OF BEGINNING. Containing 200 square feet, more or less. |
||
D-10
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
19. |
Terms, covenants and provisions of that certain "Agreement Relating to Exercise of Reserved Right-of-Way" and the effect of any failure to comply with same |
|
|
Between: |
THE UNITED STATES OF AMERICA AND TROPICANA ENTERPRISES |
|
|
20. |
An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein. |
|
|
Dated: |
November 19, 1984 |
|
|
The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. |
||
|
21. |
A Deed of Trust to secure an indebtedness of the amount shown below, and any other obligations secured thereby |
|
|
Amount: |
$67,500,000.00 |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
From: |
HORIZON FINANCIAL, F.A. |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
An Assignee: |
FIRST INTERSTATE BANK OF NEVADA, N.A., THE VALLEY |
|
D-11
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
An additional advance secured by said deed of trust, as disclosed by an instrument |
||
|
Amount: |
$10,462,653.83 |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
From: |
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
From: |
SECURITY PACIFIC NATIONAL BANK |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
From: |
CANADIAN IMPERIAL BANK OF COMMERCE (CALIFORNIA) |
|
|
An agreement to modify the terms and provisions of said deed of trust as therein provided |
||
|
Executed by: |
TROPICANA ENTERPRISES, a Nevada general partnership and |
|
|
An assignment of the beneficial interest under said deed of trust which names |
||
|
From: |
BANK ONE, ARIZONA, N.A., a national banking association ("BOA"), |
|
D-12
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
An Amended and Restated Deed of Trust and Security Agreement with Assignment of Rents |
||
|
Executed by: |
TROPICANA ENTERPRISES, a Nevada general partnership, HOTEL |
|
|
First Amendment to Amended and Restated Deed of Trust and Security Agreement with Assignments of Rents |
||
|
Executed by: |
Tropicana Enterprises, a Nevada general partnership; Hotel Ramada of |
|
|
A substitution of trustee under said Deed of Trust which names as the substituted trustee, the following |
||
|
Trustee: |
Bank of America National Trust and Savings Association, a National Banking |
|
|
A Partial Reconveyance, recorded June 9, 1999 in Book 990609 as Document No. 01392, Official Records, Xxxxx County, Nevada. |
||
|
22. |
A financing statement filed in the Of f ice of the County Recorder, showing |
|
|
Debtor: |
TROPICANA ENTERPRISES, a Nevada general partnership, HOTEL |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
March 5, 1986 |
|
D-13
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
A change to the above financing statement was filed |
||
|
Recorded: |
September 11, 1986 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
August 2, 1989 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
August 2, 1989 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
August 2, 1989 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
August 2, 1989 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
October 5, 1994 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
October 5, 1994 |
|
D-14
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
A change to the above financing statement was filed |
||
|
Recorded: |
October 5, 1994 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
October 5, 1994 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
April 8, 1997 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
October 13, 1997 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
December 2, 1997 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
May 28, 1998 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
June 9, 1999 |
|
|
A change to the above financing statement was filed |
||
|
Recorded: |
July 13, 1999 |
|
D-15
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
23. |
An assignment of all the moneys due or to become due as rental, as additional security for the obligations secured by deed of trust |
|
|
Recorded: |
November 20, 1984 |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED AND |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
SECURITY PACIFIC NATIONAL BANK AND THE VALLEY |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
CANADIAN IMPERIAL BANK OF COMMERCE (CALIFORNIA) AND |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
BANK ONE, ARIZONA, N.A., a National banking association ("BOA"), |
|
D-16
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
24. |
A collateral assignment of all the moneys due or to become due as rental, as additional security for the obligations secured by deed of trust |
|
|
Recorded: |
November 20, 1984 |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED AND |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
SECURITY PACIFIC NATIONAL BANK AND THE VALLEY |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
CANADIAN IMPERIAL BANK OF COMMERCE (CALIFORNIA) AND |
|
|
Terms, covenants and provisions of that certain "Memorandum and Notice of Assignments" and the effect of any failure to comply with same |
||
|
Between: |
BANK ONE, ARIZONA, N.A., a National banking association ("BOA"), |
|
D-17
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
25. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
LAS VEGAS VALLEY WATER DISTRICT |
|
|
BEGINNING at the a point on the Northerly line of Reno Avenue from which the Northwest corner of said Section 28 bears North 35°
59'30" West, a distance of 1695.68 feet, said point being located North 88°
42'33" West, a distance of 327.00 feet from the East line of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of said Section 28; thence North 88°
42'33" West, along the Northerly line of said Reno Avenue, a distance of 10.00 feet; thence North 01°
17'27" East, a distance of 20.00 feet; thence South 88°
42'33" East, a distance of 10.00 feet; thence South 01°
17'27" West, a distance of 20.00 feet to the Point of Beginning. Said parcel contains an area of approximately .005 acres. |
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|
26. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document. |
|
|
Granted to: |
XXXXX COUNTY |
|
|
BEGINNING at a point which is 74.50 feet right of highway engineers station "03" 8+39.99,from which the Northwest corner of said Section 28 bears North 77°
35'36" West, a distance of 856.81 feet; thence North 89°
48'52" East, parallel to the Southerly line of Tropicana Avenue, a distance of 45.00 feet; thence South 00°
11'08" East, a distance of 60.00 feet; thence South 89°
48'52" West, a distance of 45.00 feet; thence North 00°
11'08" West, a distance of 60.00 feet to the Point of Beginning. |
||
|
27. |
Terms, covenants and provisions of that certain "Order" and the effect of any failure to comply with |
|
|
Recorded: |
March 1, 1985 |
|
|
28. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
LAS VEGAS VALLEY WATER DISTRICT |
|
D-18
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
BEGINNING at the a point on the Southerly line of Tropicana Avenue from which the Northwest corner of said Section 28 bears North 81°
06'58" West, a distance of 1029.57 feet, said point being located South 89°
48'52" West, a distance of 300.00 feet from the East line of the Northwest Quarter (NW 1/4) of the Northwest Quarter (1/4) of said Section 28; thence South 89°
48'52" West, along the Southerly line of said Tropicana Avenue, a distance of 10.00 feet; thence South 00°
11'08" East, a distance of 20.00 feet; thence North 89°
48'52" East, a distance of 10.00 feet; thence North 00°
11'08" West, a distance of 20.00 feet to the Point of Beginning. Said easement contains an area of approximately .005 acres. |
||
|
29. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document. |
|
|
Granted to: |
NEVADA POWER COMPANY |
|
|
COMMENCING at the Northwest (NW) corner of said Section 28; thence South 87°
36'00" East, along |
||
|
30. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
NEVADA POWER COMPANY |
|
D-19
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
COMMENCING at the Northwest (NW) corner of the Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of said Section 28; thence South 00°
25'00" East, along the East line of the Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of said Section 28, a distance of 101.41 feet to Grantor's Northeast (NE) property corner; thence South 89°
42'29" West, along Grantor's North property line, 1147.17 feet to the POINT OF BEGINNING; thence South 00°
17'31" East, 20.64 feet to the point of ending. |
||
|
31. |
Terms, covenants and provisions of that certain "License Agreement" and the effect of any failure to comply with same |
|
|
Between: |
AZTAR CORPORATION, a Delaware corporation, ADAMAR OF |
|
|
Terms, covenants and provisions of that certain "Assignment and Amendment of License Agreement" |
||
|
Between: |
BANK ONE, ARIZONA, NA., a national banking association ("BOA"), |
|
|
Terms, covenants and provisions of that certain "Assignment and Amendment of License Agreement" |
||
|
Between: |
BANK ONE, ARIZONA, N.A., a national banking association ("BOA"), |
|
|
A Second Amendment to License Agreement, by and between Aztar Corporation, a Delaware corporation; Tropicana Enterprises, a Nevada general partnership and Hotel Ramada of Nevada, a Nevada corporation and Bank of America National Trust and Savings Association, recorded May 28, 1998 in Book 980528 as Document No. 02032, Official Records. |
||
D-20
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
32. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
NEVADA POWER COMPANY AND CENTRAL TELEPHONE |
|
|
COMMENCING at the Northwest (NW) corner of said Section 28; thence South 87°
36'00" East, along the North line of said Section 28, a distance of 1317.26 feet; thence South 00°
25'00" East, 101.41 feet to a point on the South line of Tropicana Avenue, being the Northeast (NE) corner of Grantor's property; thence South 89°
45'02" West, along the South line of Tropicana Avenue, 5.00 feet to the POINT OF BEGINNING; thence South 00°
25'00" East, parallel with and 5.00 feet West of Grantor's East property line, 317.00 feet to the point of ending |
||
|
33. |
An easement for the purpose shown below and rights incidental thereto as set forth in a document |
|
|
Granted to: |
NEVADA POWER COMPANY |
|
|
A strip of land 10.00 feet in width, being 5.00 feet on each side of the following described centerline: |
||
D-21
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
BEGINNING at Point "A"; thence North 58°
36'22" East, 55.94 feet to the point of ending. |
||
|
34. |
Terms, covenants and provisions of that certain "Multi-Use License (Nevada Department of |
|
|
Between: |
TROPICANA ENTERPRISES AND THE STATE OF NEVADA |
|
|
35. |
A pending Special Assessment for the District shown below. When Notice of the assessment is recorded |
|
|
District: |
City of Las Vegas S.I.D. No. 97B |
|
|
36. |
An unrecorded sublease with certain terms, covenants, conditions and provisions set forth therein |
|
|
Dated: |
December 1, 1995 |
|
|
The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. |
||
|
Between: |
HOTEL RAMADA OF NEVADA, a Nevada corporation and TROPICANA |
|
|
37. |
A financing statement filed in the Office of the County Recorder, showing |
|
|
Debtor: |
TROPICANA ENTERPRISES, a Nevada general partnership |
|
D-22
|
LAWYERS TITLE OF NEVADA, INC. |
Our No.: 98011014RG |
SCHEDULE B
Continued
|
38. |
An unrecorded sublease with certain terms, covenants, conditions and provisions set forth therein |
|
|
Dated: |
November 15, 1996 |
|
|
The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. |
||
|
39. |
Discrepancies, conflicts in boundary lines, shortage in area, encroachments or any other facts which a correct survey would disclose, and which are not shown by the public records. |
|
|
40. |
Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof. |
|
|
41. |
Any facts, rights, interests or claims of the parties in possession of said land, based on an unrecorded agreement, contract or lease, as disclosed by inspection and investigation. |
|
|
42. |
Matters which may be disclosed by an inspection or by a survey of said land that is satisfactory to this Company, or by inquiry of the parties in possession thereof. |
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END OF SCHEDULE B
D-23
EXHIBIT E
ESCROW AGREEMENT
(Please see attached.)
EXHIBIT E
ESCROW AGREEMENT
XXXXXXX MONEY ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made and entered into on this day of , 199 , by and among the parties designated on Exhibit A attached hereto and made a part hereof (collectively, the "Seller"), ADAMAR OF NEVADA, a Nevada corporation (the "Purchaser"), and LAWYERS TITLE INSURANCE CORPORATION (the "Escrow Agent");
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Purchase Agreement (the "Agreement") dated the date (the "Contract Date") that is prescribed by the provisions of Section 6 of the Option Agreement, dated February 2, 1998 (as amended on January 28, 1999, the "Option Agreement"), among the Seller, Aztar Corporation, and the Purchaser, providing for the sa1e by Seller of certain property described therein; and
WHEREAS, the parties wish to enter into this Escrow Agreement to provide for the holding and disposition of the xxxxxxx money under the Agreement;
E-1
NOW, THEREFORE, the parties hereto agree as follows:
1. On the date hereof, Purchaser shall have delivered to Escrow Agent funds in the amount of $3,000,000 (the "Xxxxxxx Money"). Escrow Agent hereby acknowledges receipt of the Xxxxxxx Money.
2. On the first business day which is on or after the thirtieth calendar day from the Contract Date, or such earlier date as agreed to by the Purchaser and the Seller (the "Closing Date" ), Escrow Agent shall deliver all funds then held in the escrow to Seller. However, if Purchaser has delivered an Affidavit to Escrow Agent on or before the Closing Date, in substantially the form of Exhibit B, subscribed and sworn to by Purchaser, stating that Seller is in default under the Agreement and, accordingly, Purchaser is entitled to receive the Xxxxxxx Money, then Escrow Agent shall not deliver the funds to Seller, but shall retain the funds until Escrow Agent receives joint instructions from Purchaser and Seller, without any waiver by Seller of its rights hereunder or under the Agreement.
3. Escrow Agent shall invest all funds held hereunder in such investments, or types thereof, as shall be designated in writing by Purchaser and reasonably approved by Seller from the list of Dreyfus Cash Management Funds as shown on, and in accordance with, the "order to invest" form attached hereto as Exhibit C. If Purchaser does not designate any investments, then the funds shall be held by Escrow Agent in an interest bearing money market
E-2
Account at X.X. Xxxxxx Chase. Interest shall accrue to the benefit of Purchaser.
4. It is agreed that the Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be deposited with it hereunder and to dispose of the same in accordance with the terms hereof. The Escrow Agent shall be entitled to rely and act upon any written instrument received by it from either party, and if a corporation, purporting to be executed by an officer thereof, and if a partnership, purporting to be executed by a general partner thereof (it being agreed that Escrow Agreement shall be permitted to rely on any notice or instrument executed by Xxxx X. Xxxxxxx as agent for the Seller) and shall not be required to inquire into the authority of such officer or partner or the correctness of the facts stated in said instrument. Upon disposition by the Escrow Agent, in accordance with the terms hereof, of the cash deposited with the Escrow Agent hereunder, the Escrow Agent shall be fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder.
5. The Escrow Agent shall be reimbursed for any reasonable expenses incurred by it hereunder, including the reasonable fees of any attorneys which it may wish to consult in connection with the performance of its duties hereunder. Such compensation and expenses shall be paid and reimbursed to the Escrow Agent fifty percent (50%) by Purchaser and fifty percent
E-3
(50%) by Seller Escrow Agent shall have a lien upon all properties deposited and to be deposited hereunder to cover all of its fees and expenses including its compensation, and Escrow Agent is fully authorized to deduct its fees, expenses and compensation from any amounts on deposit hereunder.
6. In the event of a dispute between any of the parties hereto as to their respective rights and interests hereunder, the Escrow Agent shall be entitled to hold any and all cash then in its possession hereunder until such dispute shall have been resolved by the parties in dispute and the Escrow Agent shall have been notified by instrument jointly signed by all of the parties in dispute, or until such dispute shall have been finally adjudicated by a court of competent jurisdiction.
7. Any notice which any party may he required or may desire to give hereunder shall be deemed to have been duly given when personally delivered, against receipt therefor signed by the party to whom the notice is given, on the next business day if sent by a reputable, nationally recognized overnight courier, or on the third business day after mailing by certified or registered mail, postage prepaid, addressed as set forth below, or to such other address as a party hereto may designate by a notice to the other parties. Any notice mailed or given to the Escrow Agent shall be deemed given only when received.
E-4
Seller: Purchaser:
c/o Guarantee Associates, L.L.C. c/o Aztar Corporation
0000 Xxxxx Xxxx, Xxxxxx Xxxxx 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxxx Attention: Xx. Xxxxxx X. Xxxxxxx
Copy to: Copy to:
Xxxxxx Xxxxxx & Xxxxx Skadden, Arps, Slate Xxxxxxx &
Xxxx LLP
000 Xxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxx 0000 Xxx Xxxx Xxx Xxxx 00000
Xxxxxxx, Xxxxxxxx 00000 Attention Xxxxxxx X Xxxxxxxx Esq.
Attn Xxxxxx X Xxxxxxx, Esq.
Escrow Agent:
Lawyers Title Insurance Corporation
Attn:
8. The Escrow Agent hereby agrees to accept, as Escrow Agent hereunder, all cash deposited hereunder, and agrees to hold and dispose of said cash deposited hereunder in accordance with the terms and provisions hereof, to all of which terms and provisions the Escrow Agent hereby consents and agrees.
9. This Escrow Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
E-5
10. This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly executed the day and year first above written.
|
PURCHASER: |
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SELLER: |
E-6
EXHIBIT A TO ESCROW AGREEMENT
XXXXX GROUP SIGNATURES
|
THE XXXXX GROUP |
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X-0
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X-0
EXHIBIT B TO ESCROW AGREEMENT
State of _____________________ )
) S.S.
County of ___________________ )
Reference is hereby made to that certain Purchase Agreement dated , 199 between the undersigned, as purchaser, and the entities set forth on Exhibit A to said Purchase Agreement, as Sellers (the "Purchase Agreement"). The undersigned, having been first duly sworn, does hereby affirm, depose and state that pursuant to the Purchase Agreement, the Sellers are in default of one or more of their obligations contained in the Purchase Agreement and, accordingly, all xxxxxxx money deposited under the Xxxxxxx Money Escrow Agreement is to be remitted to Purchaser.
[Describe Default
]
IN WITNESS WHEREOF, the undersigned has executed this Affidavit on this day of ,199
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, a |
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By: ___________________________ |
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Subscribed and sworn to before me, a Notary Public in and for said County and State. |
E-9
Exhibit C
ORDER TO INVEST ESCROW FUNDS
LAWYERS TITLE INSURANCE CORPORATION is ordered to invest in
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Fund |
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· Dreyfus Cash Management Plus (DCP) |
(670) |
$ |
Cusip #261881305 |
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Short Term Money Markets. |
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· Dreyfus Cash Management Plus (DCP) |
(671) |
$ |
Cusip #000000000 |
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Short Term Money Markets, CDs, Yankees (domestic branchs of foreign banks) |
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· Dreyfus Government Cash Management (DGC) |
(672) |
$ |
Cusip #000000000 |
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Securities issued/guaranteed by US Govt and repurchase agreements of same. |
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· Dreyfus Treasury Cash Management (DTC) |
(673) |
$ |
Cusip #000000000 |
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Securities issued/guaranteed by US Govt and repurchase agreements of same. |
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· Dreyfus Treasury Prime Cash Management (DTP) |
(674) |
$ |
Cusip #000000000 |
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Securities issued/guaranteed by US Govt, not repurchase agreements of same. US Treas securities with various rates. |
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For: |
Order #: |
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The undersigned hereby agrees to indemnify and save harmless Lawyers Title Insurance Corporation of and from all liability resultant from said investment as well as any delay in conversion or reinvestment. Neither the payment of interest nor the return of principal is guaranteed by the Company, or any other entity, including The Dreyfus Corporation.
When the termination of this investment is required, Lawyers Title shall cause the deposit to be liquidated and shall disburse to the undersigned, from its own funds, an amount equal to the actual proceeds to be applied in accordance with the applicable escrow agreement, or otherwise as the proper parties may direct. Upon disbursement, as set forth herein, the actual proceeds of this investment shall become the sole property of Lawyers Title.
Lawyers Title is not an investment adviser registered under the Investment Advisors Act of 1940, and is not performing any advisory services for The Dreyfus Corporation in connection with this Order to Invest Escrow Funds. Furthermore, Lawyers Title is not a broker-dealer registered with the Securities and Exchange Commission or the National Association of Securities Dealers, Inc. and is not performing any brokerage services in connection herewith.
Lawyers Title may receive a service fee from The Dreyfus Corporation for rendering client services in connection with the maintenance and servicing of the Customer's escrow account.
The mutual fund shares offered in connection with this program are not deposits or obligations of, or guaranteed or endorsed by, any bank, or the U.S. Government, and are not federally insured by the Federal Deposit Insurance Corporation, the Federal Reserve Board or any other agency. All money market mutual Fund shares involve certain investment risks, including the possible loss of principal, and there can be no assurance that a stable net asset value of $1.00 per share can be maintained.
E-10
Liens created by the acts of Purchaser together with the Liens set forth on Schedule B to the title commitment attached to this Agreement as Exhibit D, excepting, however, Exception B.10 to said title commitment.
