EXHIBIT 10.52
FIRST AMENDMENT TO CONTRACT
WHEREAS the undersigned entered into that certain Contract, effective
December 23, 1997, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustees of the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
TRUST NO. 3 (SELLERS), and FULL HOUSE RESORTS, INC. (PURCHASER); hereafter "the
Contract"; and,
WHEREAS, the Contract provided for a mandatory condition to its
effectiveness; and
WHEREAS, Paragraph 9(g) of the contract provides that the terms of the
Contract survive closing, as the word closing is used in the Contract; and,
WHEREAS, the Contract contains certain clerical and typographical which
should be corrected prior to closing.
NOW WHEREFORE the parties to the Contract hereby agree that the
Contract is amended as follows:
1. The parties agree that the mandatory condition precedent to the
Contract becoming effective, as set out in Paragraph 1 thereof, has been
satisfied.
2. The parties agree that the litigation referred to in Paragraph 17
has not been dismissed and the sum of $167,500.00 as set out in Paragraph 17
shall be paid to the Sellers at closing.
3. The following typographical errors are hereby corrected in Exhibit
"B" to the Contract:
(a) The fourth word in numbered Paragraph 1 is changed
from "form" to "from".
(b) In the final paragraph of Exhibit "B", which is
unnumbered, the word "option" is hereby deleted.
4. The original Exhibit "G" to the Contract, Affidavit of Fair
Exchange, is replaced with the attached replacement Exhibit "G".
5. The original Exhibit "H" to the Contract, On Record Matter Indemnity
Agreement, is replaced with the attached replacement Exhibit "H".
6. To Paragraph 11 of the Contract, Subparagraph "(k)" is added
as follows:
"(k) Assignment of Choses In Action, Agreement and Waiver
in the form set out in Exhibit "I", wherein the
Sellers assign all rights and choses of action which
they may possess against TENNECO OIL COMPANY and TOC
Retail, Inc., to the Purchaser. Sellers agree to turn
over litigation documents and cooperate in subsequent
litigation, and Sellers waive attorney-client
privilege as to Purchaser with regard to said
litigation."
7. Exhibit "I", Assignment of Choses In Action, Agreement and Waiver,
which is attached hereto, is hereby appended to the Contract.
WITNESS THE SIGNATURE OF THE SELLERS, on this the 23 day of February,
1998.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, SELLER
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., SELLER
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SELLER
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, SELLER
▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3,
SELLER
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BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, TRUSTEE
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
Co-Trustee for ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
Trust No. 3
BY: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Co-Trustee for ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
Trust No. 3
WITNESS THE SIGNATURE OF THE PURCHASER, on this the _____ day of
______________, 1998.
FULL HOUSE RESORTS, INC.,
a Delaware Corporation
PURCHASER
By:_________________________________
Its:
WITNESS THE SIGNATURE OF THE ESCROW AGENT, on this the 23 day of
February, 1998.
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Agent for
FIRST AMERICAN TITLE INSURANCE COMPANY
ESCROW AGENT
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, as his free and voluntary act
and deed.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION:
IS FOR LIFE
▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.,
Seller, who, acknowledged before me that he signed and delivered the above and
foregoing Contract on the day and date set forth therein, as his free and
voluntary act and deed.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, as his free and voluntary act
and deed.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that she signed and delivered the above and
foregoing Contract on the day and date set forth therein, as her free and
voluntary act and deed.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his
capacity as ESCROW AGENT as Agent for FIRST AMERICAN TITLE INSURANCE COMPANY,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, after first being duly
authorized to so act.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS
CO-TRUSTEE FOR ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO 3, Seller, who, acknowledged
before me that he signed and delivered the above and foregoing Contract on the
day and date set forth therein, in the capacity as Trustee of the ▇▇▇▇ (▇▇▇) ▇.
▇▇▇▇▇▇▇▇▇ Trust No. 3, after being duly authorized to so act.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AS
CO-TRUSTEE FOR ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO 3, Seller, who, acknowledged
before me that he signed and delivered the above and foregoing Contract on the
day and date set forth therein, in the capacity as Trustee of the ▇▇▇▇ (▇▇▇) ▇.
▇▇▇▇▇▇▇▇▇ Trust No. 3, after being duly authorized to so act.
SUBSCRIBED BEFORE ME, on this the 23 day of February, 1998.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
IS FOR LIFE
5
CONTRACT
This Contract made and entered into effective on the 23rd day of
December 1997 by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AND THE ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AS CO-TRUSTEES OF THE ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
TRUST NO. 3, referred to herein as "SELLERS"; and FULL HOUSE RESORTS, INC., a
Delaware corporation, referred to herein as "PURCHASER".
For and in consideration of the payment into escrow as set out herein
below, of the sum of Three Hundred Eighty Thousand ($380,000.00) Dollars,
Sellers hereby grant to the Purchaser an exclusive right to purchase that
certain property located in the City of Biloxi, and the Second Judicial District
of ▇▇▇▇▇▇▇▇ County, Mississippi, and bounded on the North by U. S. Highway 90,
on the South by the Mississippi Sound or Biloxi Channel, on the West by Magnolia
Street or its southward projection, and on the East by the property of Suntan
Motel, Inc.,commonly known as the "TOC" Property", and being further described
in the proposed quit claim deed attached hereto and marked EXHIBIT "A", and
including any and all littoral and riparian rights, appurtenant thereto, herein
referred to as "the Property", for the total purchase price of Four Million One
Hundred Fifty Five Thousand ($4,155,000.00) Dollars; and the parties hereby
agree and contract as follows.
1. CONDITION PRECEDENT: A mandatory condition precedent to this
Contract becoming effective is the expiration of that certain OPTION CONTRACT TO
PURCHASE REAL PROPERTY dated October 23, 1997 by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and the ▇▇▇▇ (▇▇▇) ▇.
▇▇▇▇▇▇▇▇▇ TRUST NO. 3, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as CO-TRUSTEES
of the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3, "Sellers"; and MILLAMAX MISSISSIPPI,
INC., and FULL HOUSE RESORTS, INC., "Purchasers", by its own terms, and the
terms of any and all extensions and/or amendments thereto, without closing the
sale contemplated therein.
2. CONSIDERATION AND ESCROW DEPOSIT: The Consideration for this
Contract shall be the payment by the Purchaser into Escrow, under the terms and
conditions set out in Paragraph Number 3 below, of the sum of Three Hundred
Eighty Thousand ($380,000.00), which sum shall be applied as follows.
(a) In the event of the failure to occur of the Condition Precedent as
set out in Paragraph Number 1 above, this Contract shall immediately terminate,
and the entire sum of Three Hundred Eighty Thousand ($380,000.00) shall be
refunded to the Purchaser within one working day.
(b) In the event that the Condition Precedent as set out in Paragraph
Number 1 above is satisfied, the entire sum of Three Hundred Eighty Thousand
($380,000.00) shall be held in escrow and deemed to be ▇▇▇▇▇▇▇ money for the
sale of the property pursuant to this Contract, and is hereinafter referred to
as "the ▇▇▇▇▇▇▇ Money Deposit".
(c) The ▇▇▇▇▇▇▇ Money Deposit shall be fully applied to the Purchase
Price as defined below.
(d) In the event the Purchaser does not close the sale on this
Contract, and the Sellers are not in breach of the warranties set out in
Paragraph Number 9 below, the ▇▇▇▇▇▇▇ Money Deposit will be paid over to the
Sellers as full liquidated damages, and this Contract shall terminate.
3. ESCROW AGREEMENT: The escrow money deposit set out in Paragraph
Number 2 above is to be held in escrow upon the terms and conditions set out in
the Escrow Agreement attached hereto as EXHIBIT "B". The Escrow Agent is ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, agent for First American Title Insurance Company, who has joined in
this Contract as an ancillary party and agrees to be bound by said Escrow
Agreement.
4. INSPECTION PERIOD: The Inspection Period shall commence at 12:01
A.M. Central Standard Time on December 23, 1997, and shall expire at 1:30 p.m.,
Central Standard Time, on Monday, February 23, 1998.
5. NO BROKER OR FINDERS: There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transaction
contemplated by this contract made by or on behalf of Sellers or Purchaser.
6. PURCHASE PRICE:
The total Purchase Price.................................$ 4,155,000.00
Payable as follows:
Less ▇▇▇▇▇▇▇ Money Deposit Applied to Purchase Price.....[$ 380,000.00]
Balance due at Closing from Purchaser.............................$ 3,775,000.00
7. CLOSING: The closing of the sale of the Property, hereinafter
"Closing", shall occur on or before Monday, February 23 1998, in New Orleans,
2
Louisiana, at the office of the Sellers' attorney as set out in Paragraph Number
20 below, at 1:30 P.M., or at such other time and place which may be agreed upon
by the parties. The Purchase Price as set out in Paragraph 5 above shall be paid
via wire transfer, provided however that any portion thereof being paid through
the Escrow Agent may be paid via check drawn on the Escrow Agent's attorney
trust or escrow account. Ad valorem taxes shall be prorated as of the date of
Closing. Purchaser shall have the right to choose the Closing attorney.
8. TITLE EXAMINATION: The Purchaser shall have the Inspection Period,
as set out in Paragraph 4 above, in which to cause the title to said property to
be examined by an agent for a title insurance company qualified to conduct and
conducting business in the State of Mississippi, and shall obtain an irrevocable
commitment for title insurance for an owners policy in the amount of a minimum
of $4,155,000.00 from such agent. Upon receipt of notice of title defects,
encumbrances or unmarketable title, the Sellers shall cooperate with the
Purchaser with respect to curing or removing the same at no cost or expenses to
Sellers. The cost to cure the title shall be at the sole cost and expense of the
Purchaser. Notwithstanding the foregoing, the existence of an uncured title
defect or the inability or refusal to cure any title defect shall not diminish
the Sellers' rights or relieve the Purchaser of their obligations set forth in
this Agreement. Accordingly, the Purchaser understands and agrees that in no
event shall a title defect or unmarketability of title result in any portion of
the ▇▇▇▇▇▇▇ Money Deposit being refunded to the Purchaser, except for the
failure of any Condition Precedent as set out in Paragraph Number 14, or
Sellers' default as defined in Paragraph Number 26. Without in any way limiting
the foregoing, the Purchaser acknowledge that the following shall not be
considered defects, encumbrances or render the title unmarketable for the
purposes of this Contract and the existence of the following shall not be
considered a breach of any representations or warranty made by the Sellers in
this Agreement:
(a) Ad valorem taxes coming due after completion of purchase;
(b) Prior mortgages and other encumbrances which constitute liquidated
liens or charges against the subject real property, which Sellers agree shall be
satisfied at Closing out of payment of the Purchase Price;
(c) Zoning ordinances;
(d) Oil, gas and other mineral interests reserved to or conveyed by
prior owners;
3
(e) Any matters not of record which would be disclosed by an accurate
survey and inspection of the property;
(f) Any claim of ownership or rights of the State of Mississippi, the
Secretary of State, the State Land Commissioner or any other state agency.
(g) Environmental restrictions which may be imposed by any governmental
agency;
(h) Permitting matters for any use of the subject real property or
proposed changes or improvements;
(i) The subject property may be subject to a written lease dated
January 1, 1971, originally with TENNECO OIL COMPANY as lessee, (the "Lease"),
and subsequently assigned by TENNECO OIL COMPANY to and/or assumed by TOC
RETAIL, INC., and thereafter subleased, to AMERICAN GAMING CORPORATION by
written instrument dated July 12, 1993, (the "Sublease"), and which sublease was
subsequently assigned and/or conveyed by AMERICAN GAMING AND RESORTS OF
MISSISSIPPI, INC. (formerly AMERICAN GAMING CORPORATION) to AMGAM ASSOCIATES and
then to ACES MISSISSIPPI, INC. (now MILLAMAX MISSISSIPPI, INC.). The term of
both the lease and the sublease may not expire until December 31, 2004. Both the
aforesaid lease and the sublease were terminated and canceled as of May 1, 1994
by an amended judgment entered July 8 1997 in proceedings in the U.S. District
Court for the Eastern District of Louisiana, Civil Action Number 94-1949,
entitled TOC RETAIL, INC. VERSUS GULF COAST OIL COMPANY OF MISSISSIPPI, INC., ET
AL. The aforesaid amended judgment has been separately appealed by all parties
to the referenced litigation to the United States Court of Appeals for the Fifth
Circuit, and among the relief sought or which could occur on appeal is the
reversal of that portion or those portions of the amended judgment which has
terminated either the lease or the sublease or both, as a result of which the
property could again become subject to the lease or the sublease or both. The
Purchaser fully understands that if TOC Retail, Inc. Is successful in its
appeal, and the appeals court or the lower court on remand reverses the ruling
that the lease and/or sublease has been terminated, the Purchaser may not be
entitled to possession of the Property until after December 31, 2004.
9. SELLERS' REPRESENTATIONS AND WARRANTIES: Except as limited by the
provisions of this Agreement (and in particular, and without limitation,
Paragraph Number 8 above) and except as otherwise disclosed in this Agreement,
Sellers hereby represent and warrant as follows:
(a) Sellers have received no notice that the existing use and condition
of the Property violates any zoning, building, health, fire, water use, or
similar statute, or any
4
ordinance, law, rule, regulation, code of any Governmental Authority, with
respect to the Property.
(b) Sellers have no actual knowledge of any threatened or pending
matters of litigation, administrative actions or arbitration against or with
respect to the Property; or any pending or threatened eminent domain,
condemnation proceeding or other governmental taking of the Property or any part
thereof, except as set forth in Paragraph Number 8 hereof.
(c) The ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ Trust No. 3 (the "Trust") has full
power and authority to execute and deliver this Contract and to consummate the
transactions and perform its obligations contemplated in this Contract and that
the execution, delivery and performance of this Contract has been duly and
validly authorized and approved by all trustees of the Trust, or any other
person whose consent is required under the agreement governing the Trust. The
form of evidence required by Purchaser establishing that all persons signing
this Contract, the quit claim deed and other closing documents on behalf of the
Trust, have all the necessary power and authority to do so is set out in
paragraph 11 below.
(d) Except for the option contract dated October 23, 2997 referred to
in Paragraph Number 1 above, Sellers are not a party to any contract, written or
oral, with respect to the Property, which is not cancelable upon thirty (30)
days notice.
(e) Between the effective date hereof and the Closing, no part of the
Property will be alienated, encumbered or transferred by the Sellers in favor of
or to any party whatsoever and Sellers will execute no instrument which will
affect title to the Property. Nothing herein shall prevent or hinder Sellers
from executing instruments that cure title defects and/or improve Seller's
titles.
(f) Sellers have not granted any leases with respect to the Property,
except the Lease or Sublease described in Paragraph 8(i) hereof, and, neither
the Lease, nor rents or other amounts payable thereunder have been assigned,
pledged, or encumbered.
(g) Sellers and Purchaser acknowledge and contract that the terms and
provisions of this Contract shall survive and bind the parties after Closing.
Notwithstanding the foregoing representations and warranties, Sellers
shall not be in breach of said representations and warranties with respect to
any of the items referred to in Paragraph 8 or otherwise disclosed in this
Agreement.
10. CLOSING AND RELATED MATTERS:
5
(a) The Seller's Obligations at Closing are as follows: at Closing,
Sellers shall (i) give any and all possession of the Property that Sellers have,
if any, to Purchaser, and (ii) execute and deliver to Purchaser all documents
required by this Contract.
(b) The Purchaser's Obligations at Closing as follows: at Closing,
Purchaser shall (i) pay to Sellers the Purchase Price specified in Paragraph 6
hereof, (ii) Provide to the Escrow Agent written authority to release the
▇▇▇▇▇▇▇ Money Deposit to the Sellers as set out in the Escrow Agreement (Exhibit
"B"), and (iii) execute and deliver all documents required by this Contract.
11. REQUIRED DOCUMENTS AT CLOSING: Sellers shall execute and deliver to
Purchaser the following at Closing:
(a) A duly executed and acknowledged Quit Claim Deed conveying Sellers'
right, title and interest, if any, in the Property to the Purchaser or to the
assignee or nominee of Purchaser, in the form set out in Exhibit "A".
(b) Two duly executed and acknowledged assignments of the Sellers'
interest, if any, in the Lease, free and clear of all liens and encumbrances,
which counterparts shall be in proper form for recording, together with original
of the Lease.
(c) A duly executed Seller's Affidavit setting forth the following: (i)
that all work, labor, services and materials furnished to or in connection with
the Property that was done at the request of Sellers have been fully paid for,
and that in connection with said work, no mechanic's or other liens may properly
be filed against the Property; (ii) that Sellers are not the subject of any
insolvency or bankruptcy proceeding, nor the subject of any suit or proceedings
at law or in equity, or otherwise, the result of any of which might affect the
title to the Property; (iii) that, to the Sellers' actual knowledge, there are
no parties other than the Sellers, and as disclosed in paragraph 8(i), who are
entitled to actual or constructive possession of the Property; and (iv) that all
action, on behalf of Sellers, as may be necessary to authorize and effectuate
the transaction contemplated by this contract has been undertaken and legally
completed, on the form specified by the Title Company, attached hereto as
EXHIBIT "C".
(d) A Gap Indemnification Agreement required by the Title Company to
insure no encumbrances attached to the Property during the "gap" period, on the
form attached as EXHIBIT "D".
6
(e) A FIRPTA certificate as required by Paragraph Number 12 of this
Contract for each individual seller and the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ Trust No.3.
(f) A recordable Stipulation of title containing mutual words of grant
and setting forth the vestiture of title, executed by the Sellers and the
beneficiaries of the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ Trust No.3, in substantially the
form set out in EXHIBIT "E".
(g) An affidavit signed by the co-trustees and the beneficiaries of the
▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3 confirming the continued unaltered existence
of that trust and the continuing authority of the co-trustees to act on its
behalf in the form set out in EXHIBIT "F".
(h) An affidavit signed by the Trustee of the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
TRUST NO. 2 and the co-trustees of the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3
stating that certain instrument captioned "Act of Exchange" dated September 20,
1993, wherein the ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 2 transferred to the ▇▇▇▇
(▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3 an interest in the Property, represented a fair,
equal value exchange of property, on the form set out as EXHIBIT "G".
(i) An assignment as set out in paragraph 25(b)(iii) of Sellers rights
as to environmental matters.
(j) An On Record Matter Indemnity Agreement executed by the Sellers and
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ on the form attached as Exhibit "H"
12. COMPLIANCE WITH THE IRS CODE: In order to comply with the
provisions of Section 1445 of the Internal Revenue Code of 1986 (the "Code"), as
amended, Sellers shall deliver to Purchaser at Closing, an affidavit in which
Sellers, under penalty of perjury, affirms that Sellers are not a "foreign
person" as defined in the Code, states the United States taxpayer identification
number of Sellers, affirms that Sellers intend to timely file a United States
income return with respect to the transfer of the property and which otherwise
conforms to the requirements of Section 1445 of the Code and the Regulations
promulgated thereunder. If Sellers fail to furnish an affidavit as required by
law, Purchaser may withhold ten (10%) percent of the gross sales price of the
Property, in lieu of payment thereof to Sellers, and any instead pay such amount
to the Internal Revenue Service in such form and manner as may be required by
law.
7
13. CLOSING COSTS: The Sellers shall bear the costs of their own
attorneys. The Purchaser shall bear all other costs of Closing, including but
not limited to title examination, title insurance, Purchaser's attorney's fees,
Escrow Agent's fees, recording fees, surveys, environmental surveys, inspection
and appraisal fees.
14. CONDITIONS PRECEDENT TO CLOSING: The parties acknowledge the
Closing of this Contract is contingent upon the following:
(a) Title to the property being in the same condition or better at the
Closing as it was on the effective date this Contract.
(b) Full execution of all documents described in paragraph 11.
(c) All Sellers and/or their heirs, representatives and assigns shall
have the legal capacity to execute or deliver the Quit Claim Deed.
15. TRANSFER OF TITLE: In the event that the Purchaser fulfills all of
its obligations at closing as set out in Sub Paragraph Number 10(b), the Sellers
agree to transfer title to the property to the Purchaser, or their assigns or
nominees, by Quit Claim Deed in the form set out on Exhibits "A". Purchaser
acknowledges that it is relying solely upon its own examination and inspection
of the Property and are not on any warranty or representation, expressed or
implied, by the Sellers as to the title, condition, or fitness of the Property
for any particular purpose.
16. AUTHORITY REGARDING TIDELANDS MATTERS: For so long as this Contract
is in effect, the Sellers fully authorize the Purchaser to, and hereby assign
the Purchaser the exclusive right to, enter into immediate negotiations with the
Secretary of State of the State of Mississippi regarding the tidelands boundary
and any other matter concerning any claim which has been made or which may be
made by the State of Mississippi or any department or agency thereof on behalf
of the State of Mississippi or any public trust as to any property rights in the
Property. Purchaser agrees to negotiate in good faith in such matters to protect
the rights of the private property owner. In the event that the Purchaser does
not purchase the Property, the Sellers agree to reimburse the Purchaser for any
funds paid by the Purchaser to the State of Mississippi for the purchase of any
property rights or for compromise of the aforementioned claims or potential
claims, not to exceed One Hundred Thousand ($100,000.00) Dollars, to be deducted
by the Escrow Agent from the ▇▇▇▇▇▇▇ Money Deposit prior to its release to the
Sellers. The Sellers agree to execute on request of Purchaser a separate
agreement manifesting the terms of this
8
Paragraph Number 16. The parties intend that any compromise or settlement of the
above claims shall result in fee simple ownership with respect to portions of
the Property which may be subject to the aforementioned claims.
17. TRANSFER OF CHOSES IN ACTION: If prior to closing, the litigation
and appeal referred to in paragraph 8(i) above, has not been dismissed and all
amounts due to the Sellers from TOC Retail, Inc., and Tenneco Oil Company have
not been paid over to Sellers, the Sellers agree to assign to Purchaser all of
Sellers' interest in civil litigation and appeal, including entitlement to any
amounts due from TOC Retail, Inc., and Tenneco Oil Company in exchange for
consideration of the payment of the actual amount due Sellers, It is here
stipulated that the amount due to Sellers is $167,500.00 as of the closing date,
but will increase by $3,750.00 on the first of each calendar month thereafter in
the event that closing is delayed by agreement of the parties or for any other
reason. Seller hereby agrees to release any claim that they may have with
respect to rents paid to TOC Retail, Inc., and/or Tenneco Oil Company. The
Purchaser understands that the appeal now pending in the United States Circuit
Court of Appeals is ongoing and attorney's fees and expenses will be incurred
during the Inspection Period. Purchaser agrees to advance to Sellers such
attorneys fees and costs as are necessary during the inspection period pay. In
the event that the Purchaser does not purchase the Property, the Sellers agree
to reimburse the Purchaser for any funds so advanced, to be deducted from the
▇▇▇▇▇▇▇ Money Deposit.
18. TAX FREE EXCHANGE: Purchaser understands that Sellers are
contemplating an Internal Revenue Code Section 1031 tax-free exchange.
Accordingly, Purchaser hereby acknowledge Sellers' rights under this Contract
may be assigned to a qualified intermediary of Sellers' choice for the purpose
of completing such an exchange. Purchaser agrees to cooperate with Sellers and
the qualified intermediary in a manner necessary to complete the exchange. In
the event Sellers assign their rights under this agreement to a qualified
intermediary and Purchaser receive written notice of Sellers' assignment,
Purchaser hereby agrees to acknowledge in writing that Purchaser has been so
notified. Furthermore, if Purchaser has received written notice of an assignment
by Sellers, Purchaser shall, at the Closing, make any payments due to Sellers
under this agreement to the qualified intermediary to whom Sellers assigned
their rights under this Contract, and Purchaser shall accept from Sellers a Quit
Claim Deed as provided for herein conveying title to the property to Purchaser.
Purchaser hereby agrees to execute any and all other documents or sign any and
all other statements reasonably requested by Sellers in order to assist Sellers
and the qualified intermediary in a manner necessary to complete the said
exchange, provided that Purchaser shall not
9
be required to incur any additional expense, nor undertake any other
obligations, nor accept title to any property other than the subject real
property in order to effect such exchange. Any warranties that may be expressed
in this agreement shall remain and be enforceable among the parties executing
this document and any assignee of Sellers.
19. EXPIRATION OF CONTRACT: This Contract shall expire by its terms as
set out in Sub Paragraph Number 2(a) or 2(d) above, or on closing, and the
Sellers shall have no further remedy in law or equity for damages
20. NOTICES: All notices provided for herein shall be in writing and
sent by courier service with signed receipt or by certified or express mail,
postage prepaid and return receipt requested, at their respective addresses
shown below or at such other address as shall be designated by such party by
written notice, mailed or delivered as required herein.
TO PURCHASER: Full House Resort, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone(619) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO
ITS ATTORNEYS: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Attorney at Law
▇▇▇▇▇▇▇▇▇▇ & Thrash, P.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TO SELLERS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO.3
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as
10
Co-Trustees for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO.3
C/O ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO
THEIR ATTORNEYS: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Attorney at Law
▇▇▇▇▇▇▇▇▇▇, Barnett, Brown, Read, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
` 3200 Energy Centre
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ESCROW AGENT: First American Title Insurance Company
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
179 Lameuse ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
21. BINDING CONTRACT: This contract shall inure to the benefit and be
binding upon the parties hereto, their heirs, legal representatives, successors
and assigns.
22. ASSIGNMENT: This Contract may be assigned by either party upon
written notice to the other, provided that an assignment by either party will
not relieve that party of their obligations set forth in this Agreement.
23. TIME OF THE ESSENCE: The parties hereto, acknowledge that time is
of the essence in the consummation of this Contract.
24. APPLICABLE LAW: This Contract shall be construed and interpreted in
accordance with Mississippi law.
25. NO ENVIRONMENTAL WARRANTIES: Purchaser acknowledges that currently
there are, and/or at one time there were, underground storage tanks
11
located on or under the property containing or possibly containing Hazardous
Materials (as hereinafter defined). Nevertheless, Purchaser agrees to purchase
the property in its current environmental condition, whatever that may be, which
is unknown to Sellers.
(a) The following definitions shall apply to the environmental
provisions set forth herein:
(i) "Environmental Law" or "Environmental Laws" means any and
all present and future statutes, rules, regulations, orders, administrative
orders, judicial orders, judgments, judicial decisions, decrees, laws, rulings,
permits, licenses, certificates, codes and ordinances from any and all federal,
state, parish, district, municipal, city, local and other legislative bodies,
courts, boards, agencies, administrative agencies, commissions, bodies,
councils, offices and authorities of any nature whatsoever in any way relating
to or applicable to (a) the protection of health, safety, and the indoor and
outdoor environment, (b) the conservation, management and use of natural
resources and wildlife, (c) the protection and use of surface water and
groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Materials, and (e) pollution (including any Release to air, land,
surface water and groundwater), and includes, but is not limited to, the
Comprehensive Environmental Response Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC
ss.ss.9601 ET SEQ., the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, 42 USC ss.ss.7401 ET SEQ., the Toxic Substances Control Act,
15 USC ss.ss.2601 ET SEQ., the Coastal Zone Management Act of 1972, 16 USC
ss.ss.1531, ET SEQ., the Coastal Wetlands Planning, Protection and Restoration
Act, 16 USC ss.ss.3951, ET SEQ., the Hazardous Materials Transportation Act, 49
USC ss.ss.1801, ET SEQ., the Occupational Safety and Health Act of 1970, 29 USC
ss.ss.651, ET SEQ., the Oil Pollution Act of 1990, 33 USC ss.ss.2701, ET SEQ.,
the Emergency Planning AND Community Right-to-Know Act of 1986, 42 USC
ss.ss.11001, ET SEQ., the National Environmental Policy Act of 1969, 42 USC
ss.ss.4321, ET SEQ., the Noise Control Act of 1972, 42 USC ss.ss.4901, ET SEQ.,
the Safe Drinking Water Act, 42 USC ss.ss.300(f), ET SEQ., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 USC ss.ss.136, ET SEQ., any and
all similar or related state laws and regulations, any and all similar,
implementing or successor laws, and any and all amendments, rules, regulations,
orders and directives issued thereunder or relating thereto.
12
(ii) "Governmental Approvals" means any and all permits,
licenses, variances, certificates, consents, letters, clearances, closures,
exemptions, decisions, actions and approval of a Governmental Authority.
(iii) "Governmental Authority" means any and all federal,
state, regional, parish, local or municipal person or body having governmental
or quasi-governmental authority or jurisdiction.
(iv) "Hazardous Materials" means any and all hazardous or
toxic chemicals, waster, by-products, pollutants, contaminants, compounds,
products or substances, including, without limitations, medical waste,
biological waste, asbestos (including asbestos containing materials or
substances), polychlorinated byphenyls, petroleum (including crude oil or any
fraction thereof, petroleum derivatives and petroleum by-products), any and all
materials of any and every kind, the exposure to, or manufacture, possession,
presence, use, generation, storage, transportation, treatment, spill, release,
disposal, abatement, clean-up, removal, remediation or handling of which, either
by itself or in combination with other materials located on, under or about the
property, (a) is prohibited, controlled or regulated by any Environmental Law,
(b) poses a threat or nuisance to health, safety, welfare, the environment or
the property, (c) due to its characteristics or interaction with one or more
substances, wastes, chemicals, compounds or mixtures, damages or threatens to
damage health, safety, or the environment or is required to be remediated by any
law, including, but not limited to, Environmental Laws, (d) is hazardous, toxic,
ignitable, radioactive, corrosive or reactive and which is regulated by any law,
including, but not limited to Environmental Laws, (e) is regulated or monitored
by any Governmental Authority, or (f) is a basis for potential liability to any
Governmental Authority or third party under any Environmental Law or any other
applicable law, rule, judgment, order or regulation. Hazardous Materials shall
include, but are not limited to, hydrocarbons, petroleum, gasoline, crude oil
and any products or by-products thereof.
(v) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the indoor or outdoor environment including without limitation,
the abandonment or discarding of barrels, drums, containers, tanks and other
receptacles containing or previously containing any Hazardous Materials.
(vi) "Response Action" means any and all investigations,
studies, samplings, testing, abatement, cleanup, removal actions and remedial
actions necessary or advisable to remove all Hazardous Materials from the
property.
13
(b) Purchaser hereby agrees as follows:
(i) Purchaser hereby waives, releases, remises, acquits and
forever discharges Sellers and GULF COAST OIL COMPANY OF MISSISSIPPI, INC., a
corporation that has been liquidated and dissolved, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 2, in their capacities as
predecessors in title of the property (who, along with the Sellers, are
hereinafter sometimes referred to collectively as the (the "Sellers Group"),
from any and all claims, actions, causes of action, cost-recovery actions,
demands, rights, damages, punitive damages, fines, penalties, costs, expenses,
lawsuits, judgments, awards and compensation whatsoever, direct or indirect,
known or unknown, foreseen or unforeseen, which Purchaser now have or which may
arise in the future on account of or in any way growing out of or in connection
with the physical condition of the property and/or Environmental Laws. Purchaser
hereby forever release and covenant not to bring any demand, claim, cost
recovery action or lawsuit it may now or hereafter have or accrue against the
Sellers Group arising from the operation or violation of any Environmental Law
by any person or entity.
(ii) Purchaser hereby waives any and all claims for
contribution against the Seller Group for, any and all losses, liabilities
(including strict liability), claims, cost recovery actions, lawsuits,
administrative proceedings, orders, judgments, fines, taxes, liens, loss of
permits, response costs, compliance costs, investigation expenses, consultant
fees, attorneys' fees, litigation expenses, damages, injuries, penalties,
actions, causes of action, demands, punitive damages, settlements, fees,
expenses and costs of whatever kind or nature, known or unknown, liquidated or
unliquidated, contingent or otherwise, with respect to, or as a direct or
indirect result of (a) any Response Action on, under, about, near or at the
property, whether brought by private party or related to any actions,
proceedings and investigations instituted by any Governmental Authority for
bodily injury, death, property damage, abatement or remediation, environmental
damage or impairment, or any other injury or damage resulting from or relating,
directly or indirectly, to: (i) the Release of any Hazardous Materials from, on,
under, about, near or at the property, whether or not such Release was caused by
the Seller Group, and whether or not the alleged liability is attributable to
the handling, storage, generation, transportation or disposal of such Hazardous
Materials or the mere presence of such Hazardous Materials on the property,
and/or (ii) any Hazardous Materials which migrated, leached or traveled on to or
off of the property, from any source; (b) at any time, the presence, generation,
transportation, storage, handling, treatment, disposal, Release or threatened
Release form the property of any Hazardous Materials, or arising out of or
resulting from the environmental condition of the property, or the operation,
applicability of or compliance with any Environmental
14
Laws relating to Hazardous Materials; (c) the violation at the property by the
Seller Group or any other person or entity having anything to do with the
property at any time, of any Environmental Law, and (d) any Environmental Claim
in any way relating to the property or any property adjacent to or near the
property.
(iii) Purchaser is willing to take the Property subject to any
and all environmental matters affecting the Property, providing Purchaser
receives from Sellers at Closing an assignment of all rights Sellers may have
against Tenneco Oil Company ("Tenneco"), TOC Retail, Inc. ("TOC"), and any
affiliate of Tenneco or TOC and any and all other predecessors in title,
excluding Sellers, with respect to any environmental matters affecting the
Property.
26. DEFAULT: If Sellers fail to comply with their obligations and
agreements hereunder or if contingencies are not met, at Purchaser's option,
Purchaser may (a) declare this Contract to be null and void and neither of the
parties shall have any further liabilities to the other hereunder, or (b)
Purchaser may demand specific performance of Sellers' obligations.
In the event of default by Sellers, Purchaser shall be entitled to the
return of the ▇▇▇▇▇▇ Money Deposit. It is understood, however, that subject to
the provisions contained in paragraph 9 of this Contract, the existence of any
title defect shall not be deemed to be a default by Sellers hereunder. If
Purchaser defaults, Sellers shall have the right to terminate this Agreement and
declare the ▇▇▇▇▇▇▇ Money ▇▇▇▇▇▇▇ ▇▇▇▇ FACTO forfeited to Sellers as full
liquidated damages and their sole remedy in law and equity.
27. EXHIBITS: Each exhibit referred to in this Contract is attached to
and incorporated by reference in this Contract.
28. NO RIGHT OF SUBSTITUTION OR SUBROGATION: Any provision of this
Agreement or law to the contrary notwithstanding, Purchaser shall have no right
of substitution or subrogation or warranty claim against the Sellers Group.
29. ASSIGNMENT AND ASSUMPTION OF LEASE: In the event the lease and/or
sublease referred to in Section 8(i) of this Agreement are revived, either in
whole or in part, as a result of the appeal referred to in Section 8(i), (a)
Purchaser shall purchase the property subject to said lease and/or sublease, (b)
Sellers shall assign and Purchaser shall fully assume and discharge when due any
and all of Sellers' obligations arising and/or accruing under the said lease
and/or sublease subsequent to the Closing, and (c) Purchaser shall defend, hold
harmless and
15
indemnify the Sellers from and against any and all claims, liabilities and
causes of action of whatever kind or nature, known or unknown, liquidated or
unliquidated, contingent or otherwise, arising and/or accruing under the said
lease and/or sublease subsequent to Closing. The foregoing indemnification shall
also include the Sellers attorneys' fees.
30. ENTIRE CONTRACT, MODIFICATION: This Contract contains the sole and
entire understanding between Sellers and Purchaser with respect to the subject
real property. All promises, inducements, offers, letters of intent,
solicitations, agreements commitments, representations and warranties made
between such parties prior to this Contract are superseded by this Contract.
This Contract shall not be modified or amended in any respect except by a
written instrument executed by or on behalf of each of the parties to this
Contract.
31. SEVERABILITY: If any provision of this Contract or the application
of any provision to any person or circumstance is or becomes invalid or
unenforceable to any extent, then the remainder of this Contract and the
application of such provisions to any other person or circumstances shall not be
affected by such invalidity or un enforceability and shall be enforced to the
greatest extent permitted by law.
32. COUNTERPARTS: This Contract may be executed in multiple
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
33. RECORDING PROHIBITED: Neither this Contract nor memorandum thereof
shall be recorded or placed on the public record.
34. CAPTIONS: Captions and Article headings contained in this Agreement
are for convenience and reference only and in no way define, describe, extend or
limit the scope or intent of this Agreement nor the intent of any provision
hereof.
35. WAIVER: No waiver or any provision of this Agreement shall be
effective unless it is in writing and signed by the party against whom it is
asserted and any such writing shall only be applicable to the specific instance
to which it relates and shall not be deemed to be continuing or future waiver.
36. FACSIMILE SIGNATURE BINDING: The parties acknowledge that a
facsimile signature by the Sellers and Purchaser shall be binding upon the
parties,
16
pending the circulation of an original Agreement, and transmission of an
executed copy of this agreement via telefax shall constitute delivery.
37. ATTORNEY'S FEES: If any action is brought by either party against
any other party hereunder, the prevailing party shall be entitled to recover
from the other party reasonable attorneys' fees, court costs and expenses
incurred in connection with the prosecution or defense of such action. For
purposes of this Agreement, the term "attorneys' fees" or "attorneys' fees and
costs" shall mean the fees and expenses of counsel to the parties hereto at
trial and all appellate levels, which may include printing, photocopying,
duplicating, air freight charges and other expenses, including fees billed for
law clerks, paralegals and other persons not admitted to the bar, but performing
services under the supervision of an attorney.
WITNESS THE SIGNATURE OF THE SELLERS, on this the 24 day of December,
1997.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, SELLER
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., SELLER
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SELLER
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, SELLER
▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO. 3,
SELLER
BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
Co-Trustee for ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
Trust No. 3
BY: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Co-Trustee for ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇
Trust No. 3
17
WITNESS THE SIGNATURE OF THE PURCHASER, on this the 24 day of December,
1997.
FULL HOUSE RESORTS, INC.,
a Delaware Corporation
PURCHASER
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President
WITNESS THE SIGNATURE OF THE ESCROW AGENT, on this the 23 day of
December, 1997.
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Agent for
FIRST AMERICAN TITLE INSURANCE COMPANY
ESCROW AGENT
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, as his free and voluntary act
and deed.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
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▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.,
Seller, who, acknowledged before me that he signed and delivered the above and
foregoing Contract on the day and date set forth therein, as his free and
voluntary act and deed.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, as his free and voluntary act
and deed.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Seller,
who, acknowledged before me that she signed and delivered the above and
foregoing Contract on the day and date set forth therein, as her free and
voluntary act and deed.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
STATE OF MISSISSIPPI
COUNTY OF ▇▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his
capacity as ESCROW AGENT as Agent for FIRST AMERICAN TITLE INSURANCE COMPANY,
who, acknowledged before me that he signed and delivered the above and foregoing
Contract on the day and date set forth therein, after first being duly
authorized to so act.
SUBSCRIBED BEFORE ME, on this the 23 day of December, 1997.
/S/
MY COMMISSION EXPIRES: ---------------------
JUNE 22, 1999 NOTARY PUBLIC
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▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS
CO-TRUSTEE FOR ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO 3, Seller, who, acknowledged
before me that he signed and delivered the above and foregoing Contract on the
day and date set forth therein, in the capacity as Trustee of the ▇▇▇▇ (▇▇▇) ▇.
▇▇▇▇▇▇▇▇▇ Trust No. 3, after being duly authorized to so act.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
STATE OF LOUISIANA
PARISH OF ORLEANS
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AS
CO-TRUSTEE FOR ▇▇▇▇ (▇▇▇) ▇. ▇▇▇▇▇▇▇▇▇ TRUST NO 3, Seller, who, acknowledged
before me that he signed and delivered the above and foregoing Contract on the
day and date set forth therein, in the capacity as Trustee of the ▇▇▇▇ (▇▇▇) ▇.
▇▇▇▇▇▇▇▇▇ Trust No. 3, after being duly authorized to so act.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
AT DEATH
21
STATE OF MISSISSIPPI
COUNTY OF ▇▇▇▇▇▇▇▇
PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned authority in
and for the aforesaid jurisdiction, the within named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in his
capacity as Vice President on behalf of FULL HOUSE RESORTS, INC., a Delaware
corporation, PURCHASER, who, acknowledged before me that he signed and delivered
the above and foregoing Contract on the day and date set forth therein, after
first being duly authorized by said corporation to so act.
SUBSCRIBED BEFORE ME, on this the 24 day of December, 1997.
/S/
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NOTARY PUBLIC
MY COMMISSION EXPIRES:
JUNE 22, 1999
22
EXHIBIT LIST
A. Quit Claim Deed.
B. Escrow Agreement
C. Seller's Affidavit and Indemnity Agreement.
D. GAP Indemnity Agreement.
E. Stipulation of Tite (Sellers and Family Members).
F. Affidavit (Trust Existence) (▇▇▇▇▇▇▇▇▇ Trust No. 3).
G. Affidavit (Fair Exchange) (▇▇▇▇▇▇▇▇▇ Trust No. 3).
H. On-Record Matter Indemnity Agreement.