EXHIBIT 10.21.5
AGREEMENT FOR PURCHASE OF
PARTNERSHIP INTEREST
THIS AGREEMENT made as of September 24, 1997, by and among Massena
Management Corp., a New York corporation, 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx (herein called "Buyer"), Xxxx X. Xxxxxx, Xxx Xxx Xxxxxxx
Xxxx, Xxxxx Xxxxx, Xxx Xxxx (herein called "Shareholder" or "Xxxxxx"), Native
American Management Corp., a New York corporation, Xxx Xxx Xxxxxxx Xxxx, Xxxxx
Xxxxx, Xxx Xxxx (herein called "Seller" or "NAMC"), PRC-St. Regis Inc., a
Delaware corporation, 000 Xxxxx Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx (herein
called "PRC-St. Regis") and Nassau County Native American, Inc., a New York
corporation, Xxx Xxx Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx (herein called
"NCNA"), which is joined for the sole purpose of waiving any claim it may have
to reimbursement for Development Expenses under the Management Agreement
(hereinbelow defined).
W I T N E S S E T H :
WHEREAS, the Shareholder owns all of the issued and outstanding shares of
all classes of capital stock of the Seller; and
WHEREAS, the Seller provides services relating to gaming facilities on
Indian reservations in the State of New York; and
WHEREAS, the Seller is one of two general partners of President R.C.-St.
Regis Management Company, a New York general partnership (herein called the
"Partnership"), having a fifty (50%) percent interest in the Partnership
(herein called the "Partnership Interest"); and
WHEREAS, PRC-St. Regis is the managing general partner of the Partnership,
having a fifty (50%) percent interest in the Partnership; and
WHEREAS, the terms of the relationship among the Seller, the Shareholder and
PRC-St. Regis are set forth in that certain General Partnership Agreement of
President R.C.-St. Regis Management Company made as of August 9, 1993, as
amended, (herein called the "Partnership Agreement"); and
WHEREAS, the Partnership entered into that certain Third Amended and
Restated Management Agreement with the St. Regis Mohawk Tribe, dated April 18,
1996 (herein called the "Management Agreement"); and
WHEREAS, the Buyer desires to purchase the Partnership Interest and the
Seller desires to sell the Partnership Interest to the Buyer; and
WHEREAS, NCNA is an affiliate of the Seller; and
WHEREAS, PRC-St. Regis is a party to this Agreement solely for the purpose
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of consenting to the transfer of the Partnership Interest to Buyer, consenting
to Buyer becoming a partner in the Partnership, and entering into the
indemnification in Paragraph 7 below and the mutual release in Paragraph 20
below.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
warranties herein contained, and subject to the terms and conditions hereof,
the parties agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement
shall have the meaning given in Management Agreement.
2. Sale of the Partnership Interest. Subject to the terms and conditions
hereof, Seller hereby agrees to sell and Buyer hereby agrees to buy the
Partnership Interest, including, but not limited to, Seller's right, title and
interest under the Partnership Agreement and the Management Agreement, and
PRC-St. Regis hereby consents to such sale and purchase.
3. Closing. Closing shall occur on the Effective Date of the Management
Agreement, or such earlier date as may be mutually agreed upon in writing by
the parties hereto (the "Closing Date"). The parties hereto agree that closing
shall take place at the offices of the NIGC, 0000 X Xxxxxx XX, Xxxxxxxxxx,
X.X., and that closing shall occur at such time as the NIGC sets for the
granting of its approval of the Management Agreement.
4. Purchase Price. The purchase price of the Partnership Interest shall
be Four Million Nine Hundred Ninety Thousand ($4,990,000) Dollars to be paid
without interest as follows: Two Hundred Fifty Thousand ($250,000) Dollars to
be paid upon the signing of this Agreement; Five Hundred Thousand ($500,000)
Dollars to be paid upon the Closing Date; Two Hundred and Forty Thousand
($240,000) Dollars to be paid in installments of Twenty Thousand ($20,000)
Dollars per month for the twelve consecutive months commencing from the
opening of the Tribal Gaming Operation; and thereafter for a period of four
consecutive years, One Million ($1,000,000) Dollars per year to be paid
quarterly in the amount of Two Hundred Fifty Thousand ($250,000) Dollars each
quarter.
5. Failure of Approval. The parties hereto acknowledge that this
Agreement is being made in part for the purpose of obtaining National Indian
Gaming Commission (herein the "NIGC") approval of the Management Agreement.
In the event that PRC-St. Regis exercises its option to terminate the
Agreement of even date herewith by and among Massena Management, LLC, Massena
Management Corp., NAMC, Xxxxxx and PRC-St. Regis, this Agreement may be
terminated in its entirety at the sole option of the Buyer. In the event of
such termination the Partnership Interest will be reconveyed to the Seller,
all monies theretofore paid by the Buyer shall be immediately returned and the
terms of this Agreement, along with any amendments to the Partnership
Agreement made pursuant to this Agreement, shall be rendered null and void.
As a result of such termination Buyer will have no further rights or
obligations under this Agreement, the Partnership Agreement or the Management
Agreement, and Seller, Shareholder and PRC-St. Regis shall have the rights and
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obligations under such agreements that existed prior to the execution of this
Agreement. This provision shall survive the termination of this Agreement
under this Paragraph 5.
6. Instruments of Conveyance. At the closing or thereafter, if required,
Seller shall deliver to Buyer a xxxx of sale or other transfer documents
conveying the Partnership Interest.
7. Indemnification. (a) Seller and Shareholder shall indemnify and hold
harmless the Buyer and PRC-St. Regis, at all times after the Closing Date,
against and in respect of: (i) any losses incurred as a result of any default
by the Seller under, or breach by it of, any of the terms, conditions,
representations or warranties of this Agreement; (ii) all liabilities incurred
by the Seller or the Shareholder of any nature, including, but not limited to,
any brokerage or finder's fees or other commissions relative to this Agreement
or the Management Agreement, whether accrued, absolute, contingent, joint,
several, matured, unmatured or otherwise existing on the Closing Date; and
(iii) all liabilities of, or claims against, the Seller arising out of the
conduct of the Seller's business at any time prior to the Closing Date,
otherwise than in the ordinary course of business.
(b) PRC-St. Regis shall indemnify and hold the Buyer and Seller and
Shareholder harmless, after the Closing Date, against and in respect of: (i)
any losses incurred as a result of any default by PRC-St. Regis under, or
breach by it of, any of the terms, conditions, representations or warranties
of this Agreement; (ii) all liabilities of PRC-St. Regis of any nature,
including, but not limited to, any brokerage fees or other commissions
relative to this Agreement, whether accrued, absolute or contingent, joint,
several, matured, unmatured or otherwise existing on the Closing Date; and
(iii) all liabilities of, or claims against, PRC-St. Regis arising out of the
conduct of PRC-St. Regis' business at any time prior to the Closing Date,
otherwise than in the ordinary course of business.
The indemnifications set forth herein shall survive the Closing Date.
8. Conditions of Closing. The obligation of the Buyer to purchase the
Partnership Interest shall be subject to the following conditions:
(a) there shall have been no material change in the Seller or the
Partnership adverse to the Buyer;
(b) all required regulatory approvals of and Partnership consents to
this Agreement shall have been obtained;
(c) all representations and warranties contained herein shall be true
and correct;
(d) the Seller, Shareholder and PRC-St. Regis shall have taken all
steps necessary with regard to the Partnership Agreement to allow and provide
for the sale of the Partnership Interest in accordance with, and for the
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implementation of, the terms of this Agreement.
9. Representations and Warranties of Seller and Shareholder. The Seller
and Shareholder, as sole officer of the Seller, make the following
representations and warranties, which Seller and Shareholder, as sole officer
of the Seller, agree are true now, shall be true on the Closing Date as if
made as of that date, and which shall survive the closing and the delivery of
all instruments and documents contemplated herein and any investigation made
at any time, for the benefit of the Buyer.
(a) Organization; good standing. The Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of New York.
(b) Company assets. The consideration given for the above-mentioned
purchase price shall include all of Seller's right, title and interest to and
in the Partnership Interest and the Seller's rights and obligations under the
Partnership Agreement.
(c) Title to Partnership Interest. At closing, the Seller shall have
authority and ability to convey to the Buyer and shall have taken all
necessary corporate action to convey good and indefeasible title to the
Partnership Interest, free and clear of all covenants, restrictions,
reversions, remainders, or interests of others, and all liens, pledges,
charges or encumbrances of any nature whatsoever.
(d) Tax returns and payments. The Seller has filed all federal, state
and local tax returns and reports required to be filed and has paid or
established adequate reserves for the proper payment of all taxes and other
governmental charges upon it or its properties, assets, income, licenses, or
sales.
(e) Financial statements. Seller shall deliver its financial
statement for the year ending December 31, 1996. A nine month balance sheet
and income statement for the Seller shall be prepared in accordance with
generally accepted accounting principles for the three month period ending
March 31, 1997, and shall be delivered at closing to the Buyer. Said year-end
statements shall be prepared, without audit, by X. X. Xxxxxx & Company,
independent certified public accountants for the Seller. Seller represents
and warrants that said financial statements fairly present the financial
condition of the Seller as of the above dates and the results of operations
for the fiscal period ended on such dates and since such dates there has been
no material increase in the liabilities of the Seller and no material adverse
change in the financial condition or operations of the Seller.
(f) Litigation, etc. There is no suit, action or litigation,
administrative arbitration, or other proceeding, or governmental investigation
or inquiry of any kind regarding the Seller or the Partnership, or other
proceeding, or governmental investigation or inquiry threatened that might,
severally or in the aggregate, materially and adversely affect the financial
condition, business, property, assets, or prospects of the Seller or impair
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the Seller's ability to sell its Partnership Interest. To the best of
Seller's knowledge and belief, the Seller and Partnership have materially
complied with and are not in default in any material respect with any law,
ordinance, requirement, regulation, or order applicable to their business and
properties, and the Seller has not received notice of any claimed default with
respect to any of the foregoing.
(g) Adverse agreements. Neither the Seller nor the Partnership is a
party to any agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree, rule
or regulation that materially and adversely affects or, as far as the Seller
can now foresee, may in the future materially and adversely affect the
business operations, prospects, properties, assets, or financial condition of
the Seller or the Partnership or impair the Seller's ability to sell its
Partnership Interest.
(h) 000 Xxxxxxxxx Xxxxxxxxx Corp. Shareholder is the sole shareholder
of 000 Xxxxxxxxx Xxxxxxxxx Corp., the record title owner of that certain
property referred to as the Route 37 Access Property in the Management
Agreement.
(i) Reconciliation of Development Expenses. Seller and Shareholder
have reconciled with PRC-St. Regis sums expended through the date of this
Agreement that are properly includable as Development Expenses, as to which
Seller and Shareholder believe the Partnership is entitled to be reimbursed by
the Tribe in accordance with Section 8.10 of the Management Agreement. As
evidenced by the attached Exhibit A, the total amount of such Development
Expenses is Four Million One Hundred Forty-Six Thousand Three Hundred One and
12/100 ($4,146,301.12) Dollars. Solely to the extent that Development
Expenses are reimbursed by the Tribe to the Partnership in accordance with
Section 8.10 of the Management Agreement, Buyer shall be entitled to recover
NAMC's share of the Development Expenses. Seller's share of the Development
Expenses is Nine Hundred Seven Thousand Nine Hundred Eighty-Nine and 00/100
($907,989.00) Dollars. NAMC shall not be liable for any reimbursement of
Development Expenses to the Partnership or Buyer, and the Partnership's and
Buyer's right to recovery of Development Expenses is limited to amounts
reimbursed by the Tribe.
(j) Compliance with terms of Management Agreement. Neither Seller nor
Shareholder as sole officer of Seller is aware of any defaults on the part of
the Partnership under the terms of the Management Agreement.
10. Covenants of Seller. The Seller agrees that prior to the Closing Date
and upon execution hereof:
(a) Cooperation. The Seller shall use its best reasonable efforts to
cause the sale contemplated by this Agreement to be consummated. The Seller
will use its best efforts to preserve the Seller's business intact and to
preserve business relations and to cause the Seller's business to be conducted
so that the covenants, representations, warranties, and provisions hereof are
true at closing.
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(b) Transaction out of ordinary course of business. Except, with the
prior written consent of the Buyer, the Seller will not enter into any
transaction out of the ordinary course of business from the date hereof to the
Closing Date.
(c) Access to properties, etc. The Seller will give to the Buyer and
to Buyer's counsel, accountants, investment advisers, and other
representatives full access during normal business hours to all of the
properties, books, tax records, contracts, commitments, and records of the
Seller and the Partnership and will furnish to the Buyer all such documents
and information with respect to the Seller's and the Partnership's affairs as
the Buyer may from time to time reasonably request up to the closing of this
transaction.
(d) Maintenance of books, etc. The Seller will maintain its books,
accounts, and records in the usual manner on a basis consistent with prior
years. The Seller will duly comply in all material respects with all laws and
decrees applicable to the Seller and to the conduct of its business.
(e) Certain prohibited transactions. Except with the prior written
consent of the Buyer, neither the Seller nor the Shareholder, as officer of
the Seller, shall enter into any contract to cause the Seller to merge or
consolidate with or sell its assets, including but without limitation the
Partnership Interest, or change the nature or character of its business, or
amend its charter or bylaws or enter into any employment agreement, lease, or
other agreements not approved by Buyer in writing, nor shall Seller grant any
stock option, pledge, gift, sell, or otherwise encumber or dispose of any of
its shares of stock.
(f) Partnership Amendment. Seller agrees to enter into any amendment
to the Partnership Agreement that may be necessary or appropriate to allow and
provide for the sale of its Partnership Interest as contemplated by this
Agreement.
11. Shareholder's Covenant. Shareholder covenants that within fifteen days
after the date of this Agreement, he will cause 000 Xxxxxxxxx Xxxxxxxxx Corp.
to deliver to Buyer a deed of the Route 37 Access Property to the Tribe in
conformity with Section 6.1(C) of the Management Agreement. Such deed shall
be held in escrow by the Buyer pending the Effective Date of the Management
Agreement and the compliance by the Tribe with the Terms of Sale set forth in
said Section 6.1(C).
12. Representations and Warranties of the Buyer. Buyer makes the following
representations and warranties, which are true now, shall be true on the
Closing Date as if made as of that date, and which shall survive the closing
and delivery of all instruments and documents contemplated herein:
(a) Organization; Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State
of New York.
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(b) Tax Returns and Payments. Buyer has filed all federal, state and
local tax returns and reports required to be filed and has paid or established
adequate reserves for the proper payment of all taxes and other governmental
charges upon it or its properties, assets, income, licenses or sales.
(c) Litigation, Etc. Buyer has no knowledge of any suit, action or
litigation, arbitration, administrative proceeding or other proceeding, or
governmental investigation or inquiry of any kind regarding the Buyer, or
other proceeding, governmental investigation or inquiry threatened, that
might, severally or in the aggregate, materially and adversely affect the
financial condition, business property, assets or prospects of Buyer or impair
Buyer's ability to purchase the Partnership Interest. To the best of Buyer's
knowledge and belief, Buyer has materially complied with and is not in default
in any material respect with any law, ordinance, requirement, regulation or
order applicable to its business and properties, and Buyer has not received
notice of any claimed default with respect to any of the foregoing.
(d) Adverse Agreements. Buyer is not a party to any agreement or
instrument, or subject to any charter or any other corporate restriction or
any judgment, order, writ, injunction, decree, rule or regulation that
materially and adversely affects or may in the future materially and adversely
affect, the business operations, prospects, properties, assets or financial
condition of Buyer or impair Buyer's ability to purchase the Partnership
Interest.
(e) Cooperation. Buyer shall use its best reasonable efforts to cause
the sale contemplated by this Agreement to be consummated. Buyer will use its
best reasonable efforts to preserve Buyer's business intact and to preserve
business relations and to cause Buyer's business to be conducted so that the
covenants, representations and warranties and provisions hereof are true at
closing.
(f) Partnership Amendment. Buyer agrees to enter into any amendment
of the Partnership Agreement as may be necessary or appropriate to allow and
provide for the purchase and sale contemplated by this Agreement.
13. Performance of Obligations and Agreements. The Shareholder, acting as
sole stockholder and officer of the Seller, shall cause the Seller to perform
all obligations, agreements, covenants, and conditions contained in this
Agreement that require action of the Seller.
14. Waivers and Notices. Any failure by any party to this Agreement to
comply with any of its obligations, agreements or covenants hereunder may be
waived in writing by the non-defaulting party or parties hereto.
15. Miscellaneous. This Agreement may not be modified or amended other
than by an agreement in writing signed by all the parties hereto.
16. Survival. The representations, warranties, promises, covenants,
agreements, indemnities and undertakings of the parties contained in this
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Agreement shall survive the closing and delivery of documents hereunder.
17. Litigation Costs. If any legal proceeding is brought to enforce this
Agreement, or any provision hereof, or because of a default in any
representation, warranty, covenant, or other provision hereof, the successful
or prevailing party or parties shall be paid all reasonable costs, including
reasonable attorney's fees, by the non-prevailing parties involved in the
litigation through all proceedings, trials, or appeals.
18. Cooperation in Lawsuits. The Seller agrees that from and after the
Closing Date, it will cooperate with the Buyer, and each person who is an
officer or director of the Buyer, in regard to any lawsuits against the Seller
that are pending at the time of this Agreement, and to facilitate and assist
the Seller and/or the Buyer and their insurance agents in the settlement and
satisfactory resolution of such lawsuits, including, but not limited to, the
giving of depositions, testimony, production of books and records, and other
such matters that may be required.
19. Limitation and Waiver. The Seller and Shareholder hereby irrevocably
waive their right to assert any right or claim, including without limitation
any judgment enforcement right, against the Tribe, the Management Agreement or
the Partnership Interest that may be based on a breach by the Buyer of any of
the terms of this Agreement.
20. Mutual Releases. As of the Closing Date, except as expressly set forth
in this Agreement and the agreement of even date herewith by and among Massena
Management, LLC, Massena Management Corp., NAMC, Xxxxxx and PRC-St. Regis, as
of the Closing Date, Buyer, Xxxxxx and NAMC jointly and severally release and
forever discharge PRC-St. Regis and President Casinos, Inc. and its other
affiliates and subsidiaries, and all of their officers, directors, agents,
attorneys and any other representatives, and PRC-St. Regis releases and
forever discharges NAMC and Xxxxxx, and their affiliates, officers, directors,
agents, attorneys and any other representatives, from all duties, demands,
claims, judgments, liabilities and any other obligations of any nature
whatsoever under or related to the Partnership Agreement (including without
limitation the obligation of Xxxxxx under Section 4.01(c) (ii) thereof and the
obligation of PRC-St. Regis under Section 4.01(c) (iii) thereof and any and
all financing obligations of PRC St. Regis thereunder), the Management
Agreement, the December 30, 1993 Option Agreement between PRC-St. Regis and
000 Xxxxxxxxx Xxxxxxxxx Corp. and the December 30, 1993 Easement Agreement
between PRC-St. Regis and 000 Xxxxxxxxx Xxxxxxxxx Corp., and as of the Closing
Date, Buyer acquires all of NAMC's right, title and interest in (including
without limitation the financial benefits that may be realized under any such
agreements) and assumes all of NAMC's duties, obligations and liabilities
under the Partnership Agreement and the Management Agreement.
22. Waiver of General Contractor Designation. Seller and Shareholder
hereby waive and release any claim that either may have on behalf of
themselves or any Affiliates to be selected and designated as the general
contractor for the construction of the Project as set forth in Section 10.14
of the Partnership Agreement.
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23. Counterparts. This Agreement may be executed in any number of
counterparts and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute only one and the same
instrument.
24. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Massena Management Corp., BUYER Native American Management Corp., SELLER
By: /s/ Xxxx Xxxxxxx By: /s/Xxxx X. Xxxxxx
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Xxxx Xxxxxxx, President Xxxx X. Xxxxxx, President
/s/ Xxxx X. Xxxxxx SHAREHOLDER
----------------------------
Xxxx X. Xxxxxx
PRC-St. Regis, Inc. Nassau County Native American, Inc.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxx Xxxxxxxxx, President Xxxx X. Xxxxxx, President
