PARTNERSHIP INTEREST REDEMPTION AGREEMENT
by and between
BALLY'S OLYMPIA LIMITED PARTNERSHIP,
a Delaware limited partnership,
as the Partnership
and
OLD RIVER DEVELOPMENT, INC.,
a Mississippi corporation,
as Seller
THIS PARTNERSHIP INTEREST REDEMPTION AGREEMENT (the "Agreement"), dated as
of September 30, 1997, is made by and between Bally's Olympia Limited
Partnership, a Delaware limited partnership (the "Partnership"), Old River
Development, Inc., a Mississippi corporation ("Seller"), Lady Luck Gaming
Corporation (solely for purposes of Section 15 hereof, "Lady Luck") and Bally's
Operator, Inc., a Delaware corporation (solely for purposes of Section 6 hereof,
the "General Partner").
RECITALS
A. The Partnership was formed pursuant to that certain Limited Partnership
Agreement of Bally's Olympia Limited Partnership, dated as of March 31, 1995
(the "Original Partnership Agreement"), by and among the General Partner, and
Bally's Tunica, Inc. ("Bally's Tunica") and Seller as limited partners.
B. The Original Partnership Agreement was amended by that certain First
Amendment to Agreement of Bally's Olympia Limited Partnership, dated as of March
31, 1995 by and between the Partnership and ▇▇▇ ▇▇▇▇▇ as assignee of a 7%
limited partnership interest in the Partnership ("Brata," and together with
Bally's Tunica and Seller, the "Limited Partners") and by that certain Second
Amendment to Limited Partnership Agreement of Bally's Olympia Limited
Partnership dated as of March 18, 1996, by and among the General Partner and the
Limited Partners (as amended, the "Partnership Agreement").
C. The General Partner and the Limited Partners desire to cause the
Partnership to redeem Seller's entire interest in the Partnership and Seller
desires to allow the Partnership to redeem such interest.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Seller and the Partnership,
Seller and the Partnership agree as follows:
SECTION Defined Terms.
"Affiliate" of any Person means any other Person that, directly or
indirectly, controls, is controlled by, or is under common control with such
Person.
"Amended Partnership Agreement" has the meaning assigned to it in Recital
"B" hereof.
"Brata Agreement" means that certain Asset Purchase Agreement dated as of
September 30, 1997 by and between ▇. ▇. ▇▇▇▇▇ and Hilton Corporation, as
attached hereto.
"Claims" means any and all damages, losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, judgments, suits, proceedings,
costs, disbursements or expenses of any kind or of any nature whatsoever
(including, without limitation, court costs, attorneys' and experts' fees and
disbursements).
"Closing" has the meaning assigned to it in Section 2(a) hereof.
"Closing Documents" means any of the agreements, instruments or other
documents to be executed in connection with the Closing.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time hereafter, and any successor statute.
"Consents" has the meaning assigned to it in Section 4(e) hereof.
"Contracts" means all agreements, contracts and other contractual rights
and obligations relating to the Property or held by the Partnership and all
amendments and other modifications thereof.
"Exception" means, with respect, to any property, asset or interest (as the
case may be), any mortgage, lien, pledge, charge, security interest,
encumbrance, right of way, easement, servitude, covenant, restriction, title
exception or defect in title of any kind with respect to such property, asset or
interest, including the interest of a vendor or lessor under any
conditional-sale agreement, capital lease or other title-retention agreement,
with respect to such property, asset or interest.
"General Partner" has the meaning assigned to it in Recital "A" hereof.
"Material Adverse Effect" means a material adverse effect on the condition
(financial or otherwise, determined in accordance with generally accepted
accounting principles as in effect from time to time of application to the
provisions hereof), business, operations, or properties of a Person, taken as a
whole.
"Nonsolicitation Period" means the period beginning on the Closing Date and
ending on the second anniversary of the Closing Date.
"Original Partnership Agreement" has the meaning assigned to it in Recital
"A" hereof.
"Partnership Interest" of any Person means that Person's interest in the
Partnership.
"Person" means any natural person, employee, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity, or
any other nongovernmental entity, or any governmental authority.
"Property" means all real and personal property owned by the Partnership.
"Redemption Price" has the meaning assigned to it in Section 3(b) hereof.
SECTION Closing.
The closing of the transactions contemplated in this Agreement (the
"Closing") shall take place on or before October 31, 1997 (the "Closing Date");
provided, however, that the Closing Date may be extended (at any one or more
times) by either party upon written notice to the other party until December 31,
1997 (the "Extension Period") if permits and/or approvals from governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement have not been obtained as of the Closing Date.
If this Agreement is not terminated pursuant to any applicable provision
hereof, subject to the provisions of this Agreement, the Closing shall be held
at the offices of the General Partner's counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, at 10:00 a.m., Chicago time.
If the Closing has not occurred on or prior to the Closing Date or, if
applicable, the expiration of the Extension Period, this Agreement shall
terminate, and all rights and duties of Seller, the Partnership, the General
Partner and the Limited Partners hereunder shall expire and the foregoing shall
have no further rights or obligations hereunder, and without liability or
obligation on the part of any party, except for claims for damages arising out
of a breach of the representations and warranties or covenants of this
Agreement, provided that this sentence shall survive such termination.
SECTION Redemption.
Subject to the provisions of this Agreement, on the Closing Date, Seller
shall sell, convey, assign and transfer to the Partnership, and the Partnership
shall purchase from Seller, Seller's Partnership Interest, free and clear of all
Exceptions.
On the Closing Date, the Partnership shall pay to Seller, in redemption of
Seller's Partnership Interest, Fifteen Million Two Hundred Fifty Thousand
Dollars ($15,250,000) (the "Redemption Price").
On the Closing Date, the Partnership shall pay the Redemption Price by
Federal Reserve wire, bank wire or bank transfer of immediately available funds
to Seller, pursuant to wiring instructions provided by Seller.
Seller agrees that, from the date hereof until termination of this
Agreement in accordance with its terms ("Acquisition Exclusivity Period"),
neither Seller nor any of its subsidiaries or affiliates will, and none of them
will permit any of their respective officers, directors, members, stockholders,
agents, advisors, counsel or representatives to, directly or indirectly, (a)
solicit or entertain any inquiries or proposals or enter into or continue any
discussions, negotiations or agreements relating to the direct or indirect sale
or other disposition of Seller' s Partnership Interest (whether through a
merger, reorganization, stock purchase or otherwise) (a "Proposed Acquisition")
to or with any person or entity other than the Partnership or (b) take any
action to initiate, assist, solicit, receive, negotiate, encourage or accept or
make any offer or inquiry from or to, or furnish or cause to be furnished any
information with respect to Seller's Partnership Interest or the Partnership to,
any person (other than as contemplated by this Agreement) who Seller or any such
affiliate, stockholder or representative knows is in the process of considering
a Proposed Acquisition. Seller agrees that it will immediately cease and cause
to be terminated any existing activities, discussions or negotiations with any
parties (other than the Partnership) heretofore conducted, or the provision of
any information related to Seller's Partnership Interest or the Partnership to
any party (other than the Partnership) to which information heretofore has been
provided, with respect to any Proposed Acquisition. If Seller receives any such
inquiry or proposal or request for information, or offer to discuss or negotiate
any Proposed Acquisition, Seller will immediately provide notice thereof to the
Partnership, indicating therein the name of the person or entity initiating such
activity and the terms and conditions of any such offer. During the Acquisition
Exclusivity Period, Seller shall not dispose of any portion of Seller's
Partnership Interest.
The parties agree that the Partnership may suffer irreparable harm from a
breach by Seller or any of its Affiliates of any of the covenants or agreements
contained in Section 3(d) herein. In the event of an alleged or threatened
breach by Seller or any of its Affiliates of any of the provisions of Section
3(d) hereof, the Partnership or its successors or assigns may, in addition to
all other rights and remedies existing in its favor, apply to any court of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce or prevent any violations of the provisions hereof.
SECTION Representations and Warranties of Seller.
Seller hereby represents and warrants to the Partnership as follows:
Seller is a corporation, duly organized, validly subsisting and in good
standing under the laws of the State of Mississippi. Seller has all requisite
corporate power and authority to carry on its business as now conducted and to
execute, deliver and perform its obligations under this Agreement and the
Closing Documents to be executed and delivered by Seller.
The execution, delivery and performance by Seller of this Agreement and the
Closing Documents to be executed and delivered by Seller have been authorized by
all necessary corporate action, including the shareholders of Seller, and do not
contravene any provision of Seller' s Articles of Incorporation or By-Laws. This
Agreement has been duly executed and delivered by an authorized officer of
Seller. The Closing Documents to be executed and delivered by Seller will be
duly executed and delivered by an authorized officer of Seller.
This Agreement is a valid and binding obligation of Seller enforceable
against Seller in accordance with its terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting creditor's rights and remedies generally
and general principles of equity). The Closing Documents to which Seller is a
party, when executed and delivered by Seller, will be valid and binding
obligations of Seller enforceable against Seller in accordance with their
respective terms (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting
creditor's rights and remedies generally and general principles of equity).
Except as set forth in Schedule 4(d), the execution, delivery and
performance by Seller of this Agreement and the Closing Documents to be executed
and delivered by Seller do not conflict with, or result in the breach of any of
the provisions of, or constitute a default under, any bond, note or other
evidence of indebtedness, indenture, mortgage, deed of trust, loan agreement or
similar instrument, any lease or other material agreement or material contract
by which Seller or any of its Affiliates or their respective assets is bound
(other than the Partnership Agreement) or any applicable law binding Seller or
any of its Affiliates or their respective assets or any order, rule or
regulation of any court or government agency having jurisdiction over Seller or
any of its Affiliates or their respective assets.
Except as set forth in Schedule 4(e), no order, permission, consent,
approval, license, authorization, registration or filing by or with any
government agency (each, a "Consent") having jurisdiction over Seller or any of
its Affiliates or their respective assets is required for the execution,
delivery or performance by Seller of this Agreement or the Closing Documents to
be executed and delivered by Seller.
Except as set forth in Schedule 4(f), Seller owns its Partnership Interest
free and clear of all Exceptions. Except for this Agreement and in the
Partnership Agreement, there are no outstanding agreements to sell Seller's
Partnership Interest or options, rights of first refusal or other rights to
purchase Seller's Partnership Interest.
Upon the Closing, to the best knowledge of Seller, Seller shall have
neither possession of nor control over any asset of the Partnership.
To the best knowledge of Seller, other than Seller's Partnership Interest,
neither Seller nor any of its Affiliates has any (i) interest in the
Partnership, (ii) right, title or interest in or to any Contract of the
Partnership, or (iii) Contract with the Partnership (other than the Partnership
Agreement).
To the best knowledge of Seller, there are no Contracts executed by Seller
or its Affiliates on behalf of the Partnership since the date of the Original
Partnership Agreement which have not been consented to by the General Partner.
(j) Seller (i) has had an opportunity to make such investigations as Seller
has deemed necessary or useful with respect to the Partnership and the
Partnership's financial condition and prospects, (ii) has made such inquiries of
and has received responses from the General Partner as Seller deemed to be
useful or necessary for purposes of evaluating the financial condition and
prospects of the Partnership and the value of Seller's interests therein in
connection with entering into the transactions contemplated hereby, and (iii)
has been represented by counsel in connection with the negotiation and
documentation of this Agreement and the transactions contemplated hereby.
SECTION Representations and Warranties of the Partnership.
The Partnership hereby represents and warrants to Seller as follows:
The Partnership is a limited partnership, duly formed, validly existing and
in good standing under the laws of the State of Delaware. The Partnership has
all requisite power and authority to carry on its business as now conducted and
to execute, deliver and perform this Agreement and the Closing Documents to be
executed and delivered by the Partnership.
The execution, delivery and performance by the Partnership of this
Agreement and the Closing Documents to be executed and delivered by the
Partnership have been authorized by all necessary partnership action and do not
contravene any provision of the Partnership Agreement. This Agreement has been
duly executed and delivered by an authorized officer of the General Partner, on
behalf of the Partnership, and the Limited Partners. The Closing Documents to be
executed and delivered by the Partnership will be duly executed and delivered by
an authorized officer of the General Partner, on behalf of the Partnership, and
the Limited Partners.
This Agreement is a valid and binding obligation of the Partnership
enforceable against the Partnership in accordance with its terms (except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditor's rights and remedies
generally and general principles of equity). The Closing Documents, when
executed and delivered by the Partnership, will be valid and binding obligations
of the Partnership enforceable against the Partnership in accordance with their
respective terms (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting
creditor's rights and remedies generally and general principles of equity).
The execution, delivery and performance by the Partnership of this
Agreement, and the Closing Documents to be executed and delivered by the
Partnership, do not conflict with, violate or result in a breach of any of the
provisions of, or constitute a default under, any bond, note or other evidence
of indebtedness, indenture, mortgage, deed of trust, loan agreement or similar
instrument, any lease or other material agreement or material contract by which
the Partnership or any of its Affiliates or their respective assets is bound
(other than the Partnership Agreement) or any applicable law binding upon the
Partnership or any of its Affiliates or their respective assets or any order,
rule or regulation of any court or governmental agency that will have
jurisdiction over the Partnership or any of its Affiliates or their respective
assets.
Except as set forth in Schedule 5(e), no Consent of any government agency
having jurisdiction over the Partnership or any of its Affiliates or their
respective assets is required to be obtained by the Partnership for the
execution, delivery or performance of this Agreement or the Closing Documents
executed and delivered by the Partnership.
The Partnership will have on the Closing Date sufficient funds with which
to pay the Redemption Price and is solvent as of the date hereof, will be
solvent on the Closing Date, and the payment of the Redemption Price will not
render the Partnership insolvent. No insolvency proceedings of any character
affecting the Partnership or any of the Partnership's assets or business is
pending or, to the knowledge of the Partnership, threatened.
There are no suits, actions, claims or legal, administrative, arbitration
or other proceedings or governmental investigations pending or threatened in any
federal, state or local court, or before any administrative agency against the
Partnership or any of its assets or which seek to enjoin, prohibit, or otherwise
question the validity of any action taken or to be taken pursuant to or in
connection with this Agreement or any of the transactions contemplated hereby.
SECTION Representations and Warranties of the General Partner.
The General Partner hereby represents and warrants to Seller that the
representation and warranty made to the Seller by the Partnership in Section
5(f) hereof is true and correct as of the date hereof and shall be the joint and
several representation and warranty of the General Partner and the Partnership.
SECTION Conditions to the Obligations of the Partnership.
The obligations of the Partnership to consummate the transactions described
herein are subject to the fulfillment, prior to or at the Closing, of the
following conditions:
The representations and warranties of Seller set forth in this Agreement
that are qualified as to materiality shall be true and correct, and those that
are not so qualified shall be true and correct in all material respects, as of
the Closing Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, as of such earlier date).
Seller shall have performed or complied in all material respects with all
of the obligations under this Agreement to be performed or complied with by
Seller prior to the Closing.
Seller shall have delivered to the Partnership a certificate dated the
Closing Date, in form and substance reasonably satisfactory to the General
Partner, certifying (i) that the representations and warranties of Seller set
forth in this Agreement that are qualified as to materiality are true and
correct, and those that are not so qualified are true and correct in all
material respects, as of the Closing Date as though made on the Closing Date,
except to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties that are
qualified as to materiality are true and correct, and those that are not so
qualified are true and correct in all material respects, as of such earlier
date) and (ii) that Seller has performed or complied in all material respects
with all of the obligations under this Agreement to be performed or complied
with by Seller prior to the Closing.
Each of Seller and Lady Luck shall have delivered to the Partnership a
general release of claims in all material respects in the forms attached as
Exhibits 7(d)-1 and 7(d)-2, respectively, duly completed, executed and
acknowledged by Seller.
The transactions contemplated by the Brata Agreement shall have been
consummated in all material respects.
Seller shall have delivered to the Partnership a waiver of its rights
contained in Sections 9.1(a) and 9.2 of the Partnership Agreement in all
material respects in the form attached as Exhibit 7(f), with respect to the
Brata Agreement, duly executed and acknowledged by Seller.
Seller shall have delivered to the Partnership all documents sufficient to
release Seller's Partnership Interest from all Exceptions, including without
limitation, release of the security interests of First Trust National
Association, as trustee ("First Trust").
No event, circumstance or condition which has had or is reasonably likely
to have a Material Adverse Effect upon the Partnership shall have occurred since
the date hereof.
Seller shall have delivered (or the General Partner, on behalf of the
Partnership, shall have received from the appropriate Person) the following
Closing Documents, each dated as of the Closing Date:
(i) An assignment of partnership interest (the "Assignment") in all
material respects in the form attached as Exhibit 7(i)(i), duly completed,
executed and acknowledged by Seller;
(ii)A good standing certificate with franchise tax clearance issued by the
Secretary of State of the State of Mississippi, certifying that Seller is duly
formed and in good standing under the laws of said State;
(iiiA non-foreign certificate in all material respects in the form attached
as Exhibit 7(i)(iii), duly completed, executed and acknowledged by Seller;
(iv)A certificate by the secretary or an assistant secretary of Seller with
respect to (A) Seller's Articles of Incorporation, (B) Seller's By-Laws, (C)
resolutions of the board of directors and shareholders of Seller authorizing the
sale to the Partnership of Seller's Partnership Interest and execution, delivery
and performance of this Agreement and (D) the incumbency of the officers of
Seller who executed this Agreement and the Closing Documents;
(v) Opinions of counsel to Seller and Lady Luck addressed to the
Partnership, as to the matters set forth in the form as attached Exhibit
7(i)(v);
(vi)An opinion of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to Lady Luck Gaming
Finance Corporation, addressed to the Partnership, as to the matters set forth
in the form as attached Exhibit 7(i)(vi); provided, however, that the
qualifications and/or exceptions set forth in such opinion shall be reasonably
satisfactory to the Partnership;
(viii) Any documentary stamp, transfer or other tax return or affidavit of
Seller required under applicable law with respect to the transaction described
herein, duly completed, executed and acknowledged or sworn and in proper form
for filing.
SECTION Conditions to the Obligations of Seller.
The obligations of Seller to consummate the transactions described herein
are subject to the fulfillment, prior to or at the Closing, of the following
conditions:
The representations and warranties of the Partnership set forth in this
Agreement that are qualified as to materiality shall be true and correct, and
those that are not so qualified shall be true and correct in all material
respects, as of the Closing Date as though made on the Closing Date, except to
the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those that are not so qualified shall
be true and correct in all material respects, as of such earlier date).
The Partnership shall have performed or complied with all of the other
obligations under this Agreement to be performed or complied with by the
Partnership prior to the Closing.
The General Partner, on behalf of the Partnership, shall have delivered to
Seller a certificate dated the Closing Date, in form and substance reasonably
satisfactory to Seller, certifying (i) that the representations and warranties
of the Partnership set forth in this Agreement that are qualified as to
materiality are true and correct, and those that are not so qualified are true
and correct in all material respects, as of the Closing Date as though made on
the Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties that are qualified as to materiality are true and correct, and those
that are not so qualified are true and correct in all material respects, as of
such earlier date) and (ii) that the Partnership has performed or complied in
all material respects with all of the obligations under this Agreement to be
performed or complied with by the Partnership prior to the Closing.
The Partnership, the General Partner and the Limited Partners (other than
Seller) each shall have delivered to Seller a general release of claims in the
forms attached as Exhibits 8(d)-1 and 8(d)-2, respectively, duly completed,
executed and acknowledged by all parties other than Seller.
The Partnership, the General Partner and the Limited Partners (other than
Seller) shall have delivered to Seller a consent to transactions contemplated by
this Agreement as required by Section 9.1(a) of the Partnership Agreement, a
waiver of their respective rights contained in Section 9.2 of the Partnership
Agreement and a waiver of Seller's obligations contained in Section 9.4(b) of
the Partnership Agreement in the form attached as Exhibit 8(e) with respect to
this Agreement, duly executed and acknowledged by such parties.
Seller shall have received all documents sufficient to release Seller's
Partnership Interest from all Exceptions upon the occurrence of the Closing,
including, without limitation, a release by First Trust of the security interest
in and to the Seller's Partnership Interest held by First Trust.
The Partnership shall have delivered to Seller the following Closing
Documents, each dated as of the Closing Date:
(i) A good standing certificate issued by the Secretary of State of the
State of Delaware, certifying that the Partnership is duly formed and in good
standing under the laws of said State;
(ii)A certificate by the secretary or an assistant secretary of the General
Partner, with respect to (A) resolutions of the board of directors of the
General Partner authorizing the purchase by the Partnership of Seller's
Partnership Interest and the execution, delivery and performance of this
Agreement and (B) the incumbency of the officers of the General Partner who
executed this Agreement and the Closing Documents on behalf of the Partnership;
(iiiAn opinion from each of Hilton Gaming Corporation and Lott, Franklin,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ addressed to Seller as to the matters set forth in the form
attached as Exhibit 8(g)(iii); and
(iv)An opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ addressed to Seller as to the matters
set forth in the form attached as Exhibit 8(g)(iv); provided, however, that the
qualifications and/or exceptions set forth in such opinion shall be reasonably
satisfactory to Seller.
SECTION Conditions to the Obligations of the Partnership and Seller. The
obligations of Seller on the one hand, and the Partnership on the other hand, to
consummate the transactions described herein are subject to the fulfillment,
prior to or at the Closing, of the following conditions:
All Consents necessary to the consummation of the transactions contemplated
hereby shall have been obtained, including, without limitation, approval from
the Mississippi gaming commission. The applicable waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, shall have
expired or been terminated.
Neither Seller or the Partnership nor any of their respective Affiliates
shall be subject to any order, decree or injunction by a governmental authority
having jurisdiction over such entity which prevents or materially impairs the
consummation of the transactions contemplated hereby.
No statute, rule, regulation, order, decree, judgment, injunction,
stipulation or determination shall have been enacted by any governmental
authority having jurisdiction over either Seller or Partnership or any of their
respective Affiliates that makes the consummation of the transactions
contemplated hereby illegal.
SECTION Covenants of the Partnership and Seller.
Between the date of this Agreement and the Closing Date or date of any
termination hereof, as the case may be, the parties hereto agree (i) to use all
reasonable efforts to (A) obtain all consents, permits or approvals from
governmental authorities or other third parties necessary to consummate and make
effective the transactions contemplated by this Agreement and (B) release the
Seller's Partnership Interest from any and all Exceptions; (ii) not to take or
omit to take any action which would be reasonably likely to cause any condition
of Closing set forth in Sections 7, 8 or 9 of this Agreement not to occur; and
(iii) to cooperate with each other in connection with the foregoing.
Neither Seller nor any of its Affiliates shall take or omit to take any
action which would cause Seller's Partnership Interest to be subject to an
Exception.
Each party represents to the other that it has not dealt with any brokers
in connection with this Agreement and no broker is entitled to any commissions
in connection with the transactions contemplated by this Agreement. Each party
agrees to indemnify, defend and hold the other party and its Affiliates,
employees, agents, their officers and partners harmless from and against any
claims made by any broker or finder for a commission or fee in connection with
the transactions contemplated by this Agreement alleged to arise out of an
agreement or arrangement with such indemnifying party.
SECTION Payment of Fees and Expenses. The parties shall each bear their own
costs and expenses incurred in connection with the transactions contemplated by
this Agreement.
SECTION Further Assurances. Upon the reasonable request of the General
Partner, on behalf of the Partnership, Seller shall deliver such other
assignments, instruments and documents and take such other actions, as the
General Partner, on behalf of the Partnership, shall reasonably request to
effectuate the transaction described herein and in the Closing Documents in
accordance with the provisions hereof and thereof.
SECTION Obligations Discharged at Closing.
Except for provisions specifically stated to survive the Closing, the
acceptance by the Partnership of the Closing Documents and the acceptance by
Seller of the Redemption Price shall be an acknowledgment by each party of the
full performance and observance of every covenant and condition in this
Agreement to be performed or observed by the other party.
SECTION Tax Matters.
As of December 31, 1996, Seller's tax basis in Seller's Partnership
Interest is $14,700,000.
(b) Pursuant to Section 4.6(b) of the Partnership Agreement, the
Partnership shall distribute to Seller a copy of the Partnership's federal tax
return (and the accompanying Schedule K-1 of Seller) for the period ending on
the Closing Date not later than thirty days before the date on which the
Partnership's federal tax return is required to be filed.
SECTION Nonsolicitation; Confidentiality.
During the Nonsolicitation Period, none of Seller, Lady Luck or any of
their respective Affiliates shall induce or attempt to induce any Employee to
leave their employ with the Partnership or in any way interfere with the
relationship between the Partnership and any of its employees.
At all times Seller, Lady Luck and all of their respective Affiliates shall
keep secret and retain in strictest confidence, and all not use for the benefit
of himself or others, confidential matters of the Partnership or its Affiliates,
including, without limitation, "know-how", trade secrets, customer lists,
supplier lists, details of contacts, pricing policies, operational methods,
marketing plans or strategies, product development techniques or plans, or
technical processes (collectively, "Confidential Information"); provided,
however, that the term Confidential Information of the Partnership or its
Affiliates does not include information (i) that was or becomes generally
available to the public other than as a result of disclosure by Seller or Lady
Luck; (ii) was available on a non-confidential basis prior to its disclosure by
Seller or Lady Luck; or (iii) becomes available to Seller or Lady Luck on a
non-confidential basis from a source other than the Partnership or its
Affiliates who was not, to Seller's or Lady Luck's knowledge, bound by any
fiduciary or confidentiality obligation to the Partnership or any of its
Affiliates. The prohibition against disclosure of Confidential Information shall
survive the Closing Date, and the restrictive covenants contained in this
Section 15(b) shall not terminate until such Confidential Information ceases to
be Confidential Information as defined herein. Seller's and Lady Luck's duties
under this Section 15(b) shall not extend to any disclosures that may be
required by law in connection with any judicial or administrative proceeding or
inquiry.
The parties agree that the Partnership may suffer irreparable harm from a
breach by Seller or any of its Affiliates of any of the covenants or agreements
contained herein. In the event of an alleged or threatened breach by Seller,
Lady Luck or any of their respective Affiliates of any of the provisions of this
Section 15, the Partnership or its successors or assigns may, in addition to all
other rights and remedies existing in its favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce or prevent any violations of the provisions hereof.
If, at the time of enforcement of any of the provisions of this Section 15,
a court holds that the restrictions stated herein are unreasonable under the
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area.
SECTION Miscellaneous.
This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all previous and
contemporaneous oral or written negotiations, agreements, arrangements and
understandings relating to the subject matter hereof. There have been no
representations or statements, oral or written, that have been relied on by any
party hereto, except those expressly set forth in this Agreement.
This Agreement shall not be amended, supplemented or modified except by an
instrument in writing signed and delivered by each of the parties hereto.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE
APPLICATION OF ITS CONFLICT OF LAWS RULES.
The representations, warranties, agreements and covenants of the parties
set forth in this Agreement shall survive the Closing Date.
This Agreement may be executed in any number of counterparts, and by each
of the undersigned on separate counterparts, and each such counterpart shall be
deemed to be an original, but all such counterparts put together shall
constitute but one and the same Agreement.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns, if any.
The headings preceding the text of Sections of this Agreement are provided
for convenience and reference only and should not be used in construing this
Agreement.
Except as otherwise set forth herein, no remedy set forth in this Agreement
or otherwise conferred upon or reserved to any party shall be considered
exclusive of any other remedy available hereunder, at law or in equity to any
party, but the same shall be distinct, separate and cumulative and may be
exercised from time to time as often as occasion may arise or as may be deemed
expedient.
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, it shall be ineffective to the extent of such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
No party hereto shall make any public disclosure of the specific terms of
this Agreement, except as required by law and then only upon joint consultation
as to the substance of such disclosure; provided, however, that the parties
hereto may disclose the material financial terms of this Agreement and the
occurrence of the Closing in applicable regulatory filings and financial
statements without such prior consultation. In connection with the negotiation
of this Agreement and the preparation for the consummation of the transactions
contemplated hereby, each party acknowledges that it will have the opportunity
to have access to confidential information relating to the other parties. Each
party shall treat such information as confidential, preserve the confidentiality
thereof and not duplicate or use such information, except to advisors,
consultants and affiliates in connection with the transactions contemplated
hereby, and except as required to comply with any law or any provision of this
Agreement.
All notices, approvals or other communications Seller or the Partnership
may desire or be required to give to each other under the terms of this
Agreement shall be in writing and shall be deemed to have been properly given,
served and received (i) if delivered by messenger, when delivered, (ii) if
mailed in the United States certified or registered mail, postage prepaid,
return receipt requested, on the third (3rd) business day after mailing, (iii)
if telexed, telegraphed or telecopied, six (6) hours after being dispatched by
telex, telegram or telecopy if such sixth (6th) hour falls on a business day
within the hours of 8:00 a.m. through 5:00 p.m. of the time in effect at the
place of receipt, or at 8:00 a.m. on the next business day thereafter if such
hour is later than 5:00 p.m., or (iv) if delivered by reputable express carrier,
freight prepaid, the next business day after delivery to such carrier, addressed
to such party as follows:
If to Seller, addressed as follows:
Old River Development, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to the Partnership, addressed as follows:
Bally's Olympia Limited Partnership
▇/▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ & Boardwalk
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Sears Tower, Suite 5800
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Any notice to the other parties to this Agreement shall be deemed to have
been properly given, served and received if given in the manner described above
to the address of such party as set forth on a signature page of this Agreement.
Any party may change the address or party to which notices may be sent by notice
to the other party or parties as provided herein.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the parties hereto or the authorized representatives of
the parties hereto have executed and delivered this Agreement as of the date
first above written.
SELLER:
OLD RIVER DEVELOPMENT, INC., a Mississippi corporation
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
BALLY'S OLYMPIA LIMITED PARTNERSHIP a Delaware limited partnership
General Partner
BALLY'S OPERATOR, INC., a Delaware corporation
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
BALLY'S OPERATOR, INC., a Delaware corporation
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Solely with respect to Section 6 hereof
LADY LUCK GAMING CORPORATION, a Delaware corporation
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and C.E.O.
Solely with respect to Section 15 hereof