PARTNERSHIP INTEREST
PURCHASE AND SALE AGREEMENT
This Partnership Interest Purchase and Sale Agreement is
entered into this 22nd day of December, 2000 (this "Agreement") by and among
Indiana Gaming Company, an Indiana corporation, ("Indiana Gaming"), Argosy
Gaming Company, a Delaware corporation ("Argosy" and together with Indiana
Gaming, the "Argosy Parties"), Conseco Entertainment, L.L.C., an Indiana limited
liability company ("Conseco LLC"), Conseco, Inc., an Indiana corporation
("Conseco" and together with Conseco LLC, the "Conseco Parties"). Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to
such terms in the Second Amended and Restated Agreement of Limited Partnership
of Indiana Gaming Company L.P. dated February 21, 1996 among Indiana Gaming,
Conseco LLC, Centaur, Inc. ("Centaur") and X.X. Investments, Inc., an Indiana
corporation ("RJ") (the "Partnership Agreement").
RECITALS:
A. Indiana Gaming is the general partner of the Indiana Gaming
Company, L.P., an Indiana limited partnership (the "Partnership"), and owns
57.5% of the partnership interests in the Partnership.
B. Conseco LLC is a limited partner in the Partnership and
owns 29% of the partnership interests in the Partnership, which includes, but is
not limited to, common and preferred equity and capital loans of the Partnership
(the "Conseco Partnership Interest").
C. Centaur is a limited partner in the Partnership and owns
13.5% of the partnership interests in the Partnership (Centaur having acquired
by merger the 4.0% partnership interest in the Partnership previously owned by
RJ which merged into Centaur in October, 1999) (the "Centaur Partnership
Interest").
D. Indiana Gaming, Conseco LLC and Centaur are parties to the
Partnership Agreement.
E. Pursuant to Section 15.2(a) of the Partnership Agreement,
on April 28, 2000, Indiana Gaming received notification from Conseco LLC of
Conseco LLC's intent to sell the Conseco Partnership Interest.
F. Prior to the date hereof, the parties to this Agreement
have been engaged in litigation regarding various issues relating to the
Partnership Agreement. Such litigation is more particularly described on Exhibit
A attached hereto (the "Litigation").
G. In partial consideration for the Conseco Partnership
Interest, pursuant to Section 5.1(d) of the Partnership Agreement, Conseco LLC
contributed capital to the Partnership as preferred equity in the Partnership
(the "Conseco Preferred Equity") and as of the date hereof
the Conseco Partnership Interest includes an outstanding Adjusted Preferred
Equity Balance of $8,120,935.87 (the "Preferred Equity Balance").
H. Pursuant to Section 5.3(a) of the Partnership Agreement,
Conseco LLC made certain capital loans to the Partnership (the "Conseco Capital
Loans") which as of the date hereof have an outstanding principal balance of
$9,080,805.56 (the "Capital Loan Balance").
I. On December 16, 2000 the parties hereto entered into a
Settlement Agreement ("Settlement Agreement") which contemplates the settlement
of the Litigation and the purchase by the Argosy Parties of the Conseco
Partnership Interest including the Conseco Preferred Equity and Conseco Capital
Loans.
NOW, THEREFORE, the parties agree as follows:
1. SETTLEMENT AGREEMENT. Prior to or on the date hereof, the
parties hereto have exchanged the agreed judgments referred to in Section 2 of
the Settlement Agreement with respect to the Xxxxxxxx County Action (as defined
in Exhibit A). Promptly after the execution of this Agreement the parties shall
execute and file the stipulations of dismissal with prejudice of the Tippecanoe
County Action and Madison County Action (each as defined in Exhibit A) as
contemplated by Section 1 of the Settlement Agreement. The terms and provisions
of the Settlement Agreement are incorporated by reference into this Agreement.
2. REGULATORY CONSENT AND APPROVAL.
(a) Promptly after the execution and delivery of this
Agreement, the parties hereto shall file (i) all necessary applications and
documents required by the Indiana Gaming Commission (the "IGC") in connection
with the transfer of the Conseco Partnership Interest as contemplated by this
Agreement, and (ii) the notification forms required by the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended ("HSR Act") with the U.S.
Department of Justice ("DOJ") and the Federal Trade Commission ("FTC"). Argosy
shall pay all filing fees required by the HSR Act. The IGC, DOJ and FTC are
hereinafter collectively referred to as "Regulatory Authorities."
(b) Each party hereto agrees to promptly respond to any and
all requests of any Regulatory Authorities for further information or documents
and to promptly make all appropriate persons available for interviews or
discussions with any Regulatory Authorities. Each party agrees to promptly make
available to the other any correspondence, notices, subpoenas or requests
received from any Regulatory Authorities.
(c) The parties hereto agree to cooperate with one another to
obtain the consent and approval of any Regulatory Authorities and to use their
respective best efforts to obtain such consent and approval and to cause the
Partnership to use its best efforts to obtain such consent and approval.
(d) As used herein "IGC" shall include all staff of the IGC as
well as its members.
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3. CLOSING. The closing of the exchange of Settlement/Purchase
Price (as hereinafter defined) for the transfer of the Conseco Partnership
Interest, including the Conseco Preferred Equity and the Conseco Capital Loans
(the "Closing"), shall take place, subject to Section 10(b) hereof, at the
offices of Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at
10:00 a.m. local Chicago time on March 1, 2001 (such date is hereinafter
referred to as the "Closing Date") or at such other date, place or time mutually
agreed to by Argosy and the Conseco Parties.
4. PURCHASE AND SALE. At the Closing on the Closing Date,
Indiana Gaming shall pay the Settlement/Purchase Price to Conseco LLC and
Conseco LLC shall transfer, assign, convey and deliver to Indiana Gaming the
Conseco Partnership Interest, including the Conseco Preferred Equity and the
Conseco Capital Loans, free and clear of any and all pledges, liens,
encumbrances, security interests or other claims or rights of others of any kind
or nature.
5. CONSIDERATION.
(a) At the Closing on the Closing Date, Indiana Gaming shall
pay to Conseco LLC an amount equal to $260.0 million (the "Settlement/Purchase
Price") in exchange for the Conseco Partnership Interest, including the Conseco
Preferred Equity and the Conseco Capital Loans. Nothing herein relieves the
obligation of Indiana Gaming to pay amounts due and owing to Conseco LLC under
the Partnership Agreement prior to the Closing Date.
(b) Indiana Gaming's payment of the Settlement/Purchase Price
pursuant to Section 5(a) above shall be by wire transfer of immediately
available federal funds to an account designated by Conseco LLC prior to the
Closing Date.
6. DELIVERIES. At the Closing on the Closing Date,
(a) Indiana Gaming shall deliver to Conseco LLC the
following:
(i) payment of the Purchase Price;
(ii) certified resolutions of the Board of
Directors of Argosy, and the directors and
stockholders of Indiana Gaming approving
this Agreement and all transactions
contemplated hereunder;
(iii) the dismissals (with prejudice) of the
Xxxxxxxx County Action attached hereto as
Exhibit B ("Dismissal") executed by the
Argosy Parties;
(iv) an officer's certificate of an authorized
officer of each of the Argosy Parties
affirming that the representations and
warranties of the Argosy Parties set forth
in Section 8 of this Agreement are true and
correct on and as of the Closing Date; and
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(v) such other documents as Conseco or Conseco
LLC or their counsel may reasonably request
to carry out the purpose of this Agreement.
(b) Conseco LLC shall deliver to Indiana Gaming the
following:
(i) any original certificates or notes issued by
the Partnership to evidence the Conseco
Partnership Interest or the Conseco Capital
Loans, if any, or a xxxx of sale and
assignment effectively conveying the Conseco
Partnership Interest together with an
acknowledgement as to the payment in full of
Conseco's Preferred Equity and Conseco
Capital Loans;
(ii) certified resolutions of the directors of
Conseco and the members of Conseco LLC
approving this Agreement and all
transactions contemplated hereunder;
(iii) officer's certificate of an authorized
officer of Conseco LLC affirming that the
representations and warranties of the
Conseco Parties set forth in Section 7 of
this Agreement are true and correct on and
as of the Closing Date;
(iv) the Dismissal executed by the Conseco
Parties; and
(v) such other documents as Indiana Gaming or
Argosy or their counsel may reasonably
request to carry out the purpose of this
Agreement.
(c) The parties hereto shall, on request, on or after the date
hereof and the Closing Date, cooperate with one another by furnishing any
additional information, executing and delivering any additional documents and/or
instruments and doing any and all such other things as may be reasonably
required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement.
7. WARRANTIES OF THE CONSECO PARTIES. The Conseco Parties,
jointly and severally, represent and warrant to the Argosy Parties as follows:
(a) Conseco LLC is the true and lawful owner, of record and
beneficially, of the Conseco Partnership Interest, the Conseco Preferred Equity
and the Conseco Capital Loans free and clear of any and all pledges, liens,
encumbrances, security interests or other claims or rights of others of any kind
or nature.
(b) Each of the Conseco Parties has taken all requisite
limited liability company or corporate action, as the case may be, to approve
this Agreement.
(c) The Conseco Parties each have all right, power and
authority to enter into and perform their respective obligations under this
Agreement, and the execution and
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performance of this Agreement does not violate or conflict with or constitute a
default under the Operating Agreement, Certificate of Incorporation or By-laws
of either of the Conseco Parties.
(d) This Agreement has been duly executed and delivered by
each of the Conseco Parties and is binding upon and enforceable against each of
the Conseco Parties in accordance with it terms and conditions, except as the
enforceability thereof may be subject to or limited by bankruptcy, insolvency,
reorganization, arrangement or similar laws affecting the rights of creditors
generally and judicial limitations upon specific performance of certain types of
obligations.
(e) Between the date hereof and the Closing Date neither of
the Conseco Parties will take any action which will cause the warranties and
representations set forth in Sections 7(a)-(d) above to be untrue or inaccurate.
8. WARRANTIES OF THE ARGOSY PARTIES. The Argosy Parties,
jointly and severally, represent and warrant to the Conseco Parties as follows:
(a) Each of the Argosy Parties is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation.
(b) Each of the Argosy Parties has taken all requisite
corporate action to approve this Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by each of the Argosy Parties and is binding upon, and enforceable
against each of the Argosy Parties in accordance with its terms and conditions,
except as the enforceability thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement or similar laws affecting the rights of
creditors generally and judicial limitations upon the specific performance of
certain types of obligations.
(d) The execution of this Agreement by each of the Argosy
Parties and the performance of obligations hereunder will not violate or
conflict with or constitute a default under the Certificate of Incorporation or
By-laws of any of the Argosy Parties.
(e) Between the date hereof and the Closing Date no Argosy
Party will take any action which will cause the warranties and representations
set forth in Section 8(a)-(d) above to be untrue or inaccurate.
9. GUARANTEES.
(a) Argosy hereby guarantees to the Conseco Parties the full
and timely payment of any amounts payable, and the prompt performance of any
obligations to be performed, by Indiana Gaming under this Agreement, when and as
the same shall become due hereunder.
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(b) Conseco hereby guarantees to Argosy and Indiana Gaming the
prompt performance of any obligations to be performed by Conseco LLC under this
Agreement, when and as the same shall become due hereunder.
(c) The guarantees set forth in Section 9(a) and (b) hereof
are guarantees of payment and performance and not of collection only.
10. CONDITION AND TERMINATION.
(a) It shall be a condition precedent to (i) Conseco LLC's
obligation to sell the Conseco Partnership Interest that the warranties and
representations of the Argosy Parties set forth in Section 8 hereof shall be
true and correct in all material respects on the Closing Date as if made on such
date; and (ii) Indiana Gaming's obligation to pay the Settlement/Purchase Price
that the warranties and representations of the Conseco Parties set forth in
Section 7 hereof, shall be true and correct in all material respects on the
Closing Date as if made on such date.
(b) The Argosy Parties or the Conseco Parties may
terminate this Agreement only as follows:
(i) by mutual written agreement of the Argosy
Parties and Conseco Parties;
(ii) by the Argosy Parties if the conditions
precedent for their benefit set forth in
Section 10(a)(ii) are not satisfied or
waived on or prior to the Closing Date; or
(iii) by the Conseco Parties if the conditions
precedent for their benefit set forth in
Section 10(a)(i) are not satisfied or waived
on or prior to the Closing Date.
11. RELEASES.
(a) CONSECO PARTIES RELEASE. In consideration of the covenants
and releases set forth herein and in the Settlement Agreement, the
Settlement/Purchase Price and the consummation of the transactions contemplated
by this Agreement, the Conseco Parties agree to, as of the Closing Date,
release, waive and forever discharge the Argosy Parties and the Partnership
(including any of their affiliates, officers, employees, directors, attorneys,
agents or shareholders) from any and all actions, suits, damages, claims and
demands which the Conseco Parties may have as of the date hereof and as of the
Closing Date against the Argosy Parties or the Partnership (or any of their
respective affiliates, officers, employees, directors, attorneys, agents or
shareholders), (i) arising out of, under or in connection with the valuation of
and purchase of the Conseco Partnership Interest and (ii) arising out of, or in
connection with, or relates in any manner to, the claims asserted in the
Litigation. Notwithstanding the foregoing, nothing herein is intended to release
the Argosy Parties or the Partnership, from any of their respective obligations
under this Agreement or the Settlement Agreement.
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(b) ARGOSY PARTIES OR THE PARTNERSHIP RELEASE. In
consideration of the covenants and releases set forth herein and in the
Settlement Agreement and the consummation of the transactions contemplated by
this Agreement, the Argosy Parties and the Partnership agree to, as of the
Closing Date, release, waive and forever discharge the Conseco Parties
(including any of their affiliates, officers, employees, directors, attorneys,
agents or shareholders) from any and all actions, suits, damages, claims and
demands which the Argosy Parties and/or the Partnership may have as of the date
hereof and as of the Closing Date against the Conseco Parties (or any of their
respective affiliates, officers, employees, directors, attorneys, agents or
shareholders), (i) arising out of, under or in connection with the valuation of
and purchase of the Conseco Partnership Interest and (ii) arising out of, or in
connection with, or relates in any manner to, the claims asserted in the
Litigation. Notwithstanding the foregoing, nothing herein is intended to release
the Conseco Parties from any of their respective obligations under this
Agreement or the Settlement Agreement.
12. AMENDMENTS. Any amendment to this Agreement, shall be made
in writing and signed by the Conseco Parties and the Argosy Parties.
13. ENFORCEABILITY. If any provision of this Agreement shall
be held invalid or unenforceable, in whole or in part, then such provision shall
be deemed to be modified or restricted to the extent and in the manner necessary
to render the same valid and enforceable, or shall be deemed excised from this
Agreement as the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law, as if such provision had been
originally incorporated herein as so modified or restricted or as if such
provision had not been originally incorporated herein, as the case may be.
14. GOVERNING LAW AND JURISDICTION. The terms and conditions
of this Agreement and the parties' obligations hereunder shall be construed
under and be governed by the internal laws of Indiana, without regard to the
principles of choice of law. The parties also stipulate and agree that any and
all disputes arising out of this Agreement shall be litigated, if at all,
exclusively in the Xxxxxxxx Superior Court, State of Indiana, and all parties
consent and stipulate to the jurisdiction and venue of the Xxxxxxxx Superior
Court.
15. ATTORNEYS' FEES. In the event that any party files an
action to enforce any term of this Agreement, the prevailing party in that
action shall be entitled to recover its reasonable attorneys' fees, costs and
expenses incurred in litigating the claims arising out of this Agreement.
16. ENTIRE AGREEMENT. This Agreement and the Settlement
Agreement will contain the entire agreement of the parties with respect to the
settlement of the Litigation, the payment of the Settlement/Purchase Price and
the purchase of the Conseco Partnership Interest. No party has relied on
representations or promises of any other party to execute this Agreement other
than the representations and promises contained in this Agreement.
17. ASSIGNMENT. The rights and obligations of the parties
hereto under this Agreement shall inure to the benefit of, and shall be binding
upon, the heirs, successors and assigns of such parties. Indiana Gaming shall
have the right to assign its purchase rights
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hereunder to a subsidiary of Argosy and the Argosy guarantee set forth in
Section 9 hereof shall apply to such subsidiary.
18. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given on the date
when personally delivered or sent by facsimile or on the third day after being
mailed, by certified or registered mail, return receipt requested, addressed to
the intended recipient as follows:
If to the Argosy Parties:
c/o Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
If to the Conseco Parties:
Conseco, Inc.
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Any party may from time to time change its address for the
purpose of notices to that party by a similar notice specifying a new address,
but no such change shall be deemed to have been given until it is actually
received by the party sought to be charged with the contents.
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19. WAIVER. No claim or right arising out of a breach or
default under this Agreement can be discharged in whole or in part by a waiver
of that claim or right unless the waiver is in writing and executed by the
aggrieved party hereto or its or his duly authorized agent. A waiver by any
party hereto of a breach or default by the other party hereto of any provision
of this Agreement shall not be deemed a waiver of any prior or subsequent
compliance therewith and such provision shall remain in full force and effect.
20. TERMINATION OF FINANCIAL ADVISORY AGREEMENT. Pursuant to
Section 4 of the Financial Advisory Agreement dated April 11, 1994 (as amended
by that certain Amendment No. 1 to Financial Advisory Agreement dated February
21, 1996) (the "Financial Advisory Agreement") between Indiana Gaming and
Conseco, Conseco acknowledges and agrees that such Agreement shall terminate and
Conseco shall have no further rights thereunder upon the Closing on the Closing
Date of the transactions contemplated by this Agreement, except for any fees
accrued and unpaid as of the Closing Date.
21. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, EACH
of which when so execute and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, this Partnership Interest Purchase and
Sale Agreement has been executed by the parties hereto on the date first above
written.
ARGOSY GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Title: Sr. Vice President and CFO
--------------------------------------------
INDIANA GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
CONSECO ENTERTAINMENT, L.L.C.
By: Conseco Entertainment, Inc.
Title: Manager and Member
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Executive Vice President,
General Counsel and Secretary
----------------------------------------------
CONSECO, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
----------------------------------------------
The following party is a signatory to this Partnership
Interest Purchase and Sale Agreement for the limited purposes set forth in
Section 11 hereto:
INDIANA GAMING COMPANY, L.P.
By: Indiana Gaming Company, its general partner
By: /s/ Xxxx X. Xxxxx
------------------------
Title: Vice President
---------------------
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EXHIBIT A
LITIGATION
1. Conseco LLC commenced a civil action on June 14, 2000 against the
Partnership, Indiana Gaming, Centaur and RJ in Tippecanoe Superior
Court No. 1, under Cause No. 79D01-0006-CP-235, seeking to enforce
certain rights under the Partnership Agreement (the "Tippecanoe County
Action").
2. Indiana Gaming commenced a civil action on September 5, 2000 against
Conseco LLC, Centaur and RJ in the Circuit Court of the Third Judicial
Circuit of Madison County, Illinois, under Case No. 00-MR-411, seeking
to enforce certain rights under the Partnership Agreement (the "Madison
County Action").
3. Conseco commenced a civil action on October 17, 2000 against the
Partnership, Indiana Gaming, Argosy, Centaur and RJ in Xxxxxxxx
Superior Court No. 1, under Cause No. 29D01-0010-CP-653, seeking
damages and injunctive relief for alleged interference with certain
contracts, interference with business relations, and abuse of process
(the "Xxxxxxxx County Action").
EXHIBIT B
XXXXXXXX COUNTY ACTION
STIPULATION OF DISMISSALS
To be mutually agreed to by the Argosy Parties and Conseco
Parties prior to the Closing.
