PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into as of the ______ day of
September, 1996, by and among BOARDWALK CASINO, INC., a Nevada corporation
("Seller"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as trustee under an agreement
dated July 14, 1993 ("▇▇▇▇▇▇"), and DIVERSIFIED OPPORTUNITIES GROUP LTD., an
Ohio limited liability company, or its nominee as described in Section 27
("Purchaser").
RECITALS
Seller desires to sell to Purchaser certain Shares (as hereinafter defined)
and issue to Purchaser a convertible subordinated note in the principal amount
of $5,000,000 (the "Note"), and Purchaser desires to acquire the Shares and the
Note from Seller.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
warranties, representations, agreements and undertakings hereinafter set forth,
the parties hereto do hereby represent, warrant, covenant and agree as follows:
1. CERTAIN DEFINITIONS
For the purposes of this Agreement, the terms defined in this Section 1
shall have the meanings set out below. All capitalized terms not defined in
this Section 1 shall have the meanings ascribed to them in other parts of this
Agreement.
(a) "Closing Date" shall mean ______________________, 1996, as of the
close of business, or such other date as to which the parties may agree in
writing.
(b) "Closing" shall mean the closing on the Closing Date of the
purchase and sale transaction contemplated by this Agreement.
(c) "Annual Statement" shall mean Seller's Balance Sheet at September
30, 1995 and the accompanying Statements of Income (Loss), Statements of Cash
Flows and Statements of Shareholders' Equity for Seller's two fiscal years then
ended, together with the schedules and notes related thereto, accompanied by the
applicable report of Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, as
filed with the Securities and Exchange Commission ("SEC").
(d) "Interim Statement" shall mean Seller's unaudited Balance Sheet
at June 30, 1996 and the accompanying Statements of Operations and Statements of
Cash Flow for the 9-month period then ended, together with the notes relating
thereto, as filed with the SEC.
(e) "Financial Statements" shall mean the Annual Statement and
Interim Statement.
(f) "Material Adverse Effect" shall mean any event which would, in
the aggregate, have a material adverse effect upon the business, assets,
financial condition or results of operations of Seller on a consolidated basis.
(g) "Purchaser Material Adverse Effect" shall mean any event which
would, in the aggregate, have a material adverse effect upon the business,
assets, financial condition or results of operations of Purchaser.
(h) "Shares" shall mean shares of Seller's Common Stock, $.001 par
value.
2. PURCHASE AND SALE; PRICE
Seller agrees to issue and sell to Purchaser, as the case may be, and
Purchaser agrees to purchase from Seller, the Note and certain of the Shares for
the purchase price and upon and subject to the terms, provisions and conditions
hereinafter set forth.
(a) ISSUANCE OF NOTE. Seller shall issue and Purchaser shall
purchase the Note. The Note shall be in substantially the form and substance of
Exhibit A attached hereto and
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incorporated herein by reference. The Note shall contain, among other
things, interest at a variable rate per annum equal to Purchaser's costs of
funds (estimated at LIBOR + 2.25%) (the "Charged Rate"). Each change in the
Charged Rate shall result immediately, without notice or demand of any kind,
in a corresponding change in the interest rate under the Note, effective with
respect to the periods on or after the date of such change. Interest due on
the Note shall be payable on a quarterly basis. The principal of the Note
shall be due and payable on the second anniversary of the Closing Date and
shall, commencing on the receipt from the Nevada Gaming Commission (the
"Commission") and the Nevada State Gaming Control Board (the "Gaming Board")
and the authorities of ▇▇▇▇▇ County, Nevada (the Commission, the Gaming Board
and the ▇▇▇▇▇ County Authorities are collectively referred to as the "Nevada
Gaming Authorities") of all requisite licensing, findings of suitability or
other approval required in accordance with Nevada law ("Licensing Approval"),
be convertible into Shares at a conversion price of $7.50 per share. The
Note shall be secured by a second priority lien on the Collateral, as such
term is defined in that certain Indenture dated as of April 7, 1995 between
Seller and Shawmut Bank, N.A., Trustee for $40,000,000 16.5% First Mortgage
Notes Due March 31, 2005 (the "Indenture"). This second priority lien shall
be evidenced by a Deed of Trust and Security Agreement in substantially the
form and substance of Exhibit B attached hereto and incorporated herein by
reference.
(b) PURCHASE OF SHARES. Seller shall sell and Purchaser shall
purchase 571,429 Shares at a price of $7.00 per Share for a total purchase price
of $4,000,000.
(c) ACQUISITION OF AND OPTION FOR ▇▇▇▇▇▇ SHARES. Pursuant to an
Option and Proxy Agreement to be entered into between Purchaser and ▇▇▇▇▇▇ (the
"Option Agreement"), Purchaser shall have the obligation to acquire certain
Shares owned by ▇▇▇▇▇▇ and the right to
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acquire certain Shares owned by ▇▇▇▇▇▇. The Option Agreement shall be in
substantially the form and substance of Exhibit C attached hereto and
incorporated herein by reference.
(d) PAYMENT OF PURCHASE PRICE. The purchase price of $5,000,000 for
the Note and $4,000,000 for the Shares pursuant to Sections 2(a) and 2(b) above,
shall be paid by Purchaser to Seller by wire transfer or by certified or bank
check at the Closing.
3. AGREEMENTS REGARDING REGISTRATION OF SHARES AND BOARD REPRESENTATION.
(a) At or prior to the Closing, Purchaser and Seller shall execute
and deliver a Registration Agreement (the "Registration Agreement") in
substantially the form and substance of Exhibit D attached hereto and
incorporated herein by reference. The Registration Agreement shall provide for
the registration of all Shares acquired by Purchaser as contemplated hereunder,
including those acquired by conversion of the Note or pursuant to the Option
Agreement.
(b) Within seven (7) days following the earlier to occur of (i)
receipt of a favorable ruling letter from the Gaming Board, satisfactory to
Purchaser and Seller, each in the exercise of its reasonable business judgment,
with respect to the transactions contemplated by this Agreement, or (ii)
Purchaser having obtained Licensing Approval, Seller's Board of Directors (the
"Board") shall be expanded to six persons, one of whom shall be ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("▇▇▇▇▇▇"). Subject to Purchaser having obtained Licensing Approval, at
such time as Purchaser shall have acquired a total of 1,000,000 or more Shares
from ▇▇▇▇▇▇ pursuant to the Option Agreement, the Board shall be expanded to
seven members and Purchaser shall be entitled to nominate the additional Board
member.
4. REPRESENTATIONS AND WARRANTIES BY SELLER AND ▇▇▇▇▇▇.
As a material inducement to Purchaser to enter into this Agreement,
Seller and ▇▇▇▇▇▇, jointly and severally, represent, warrant to and, where
applicable, covenant with Purchaser
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that as of the date hereof and as of the Closing Date (it being acknowledged,
however, that the representations and warranties being made by ▇▇▇▇▇▇ are
being made to the best of his actual knowledge):
(a) DUE ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada,
has full corporate power and authority to own its properties and to carry on
its business as it is now being conducted, is duly qualified to do business
and is in good standing in all jurisdictions in which it is required to be so
qualified, except where the failure to so qualify or be in good standing
would not, in the aggregate, result in a Material Adverse Effect. Seller has
received all necessary authorizations, consents, licenses and approvals of
the Nevada Gaming Authorities, and other governmental authorities material to
the ownership of its properties and assets and to the conduct of its
business.
(b) POWER AND AUTHORITY; NO CONFLICTS. Seller has full power and
authority (corporate or otherwise) to enter into and carry out the terms of
this Agreement. The execution and delivery by Seller of this Agreement and
the other documents and instruments to be executed and delivered by Seller
pursuant hereto and thereto and the consummation of the transactions
contemplated hereby and thereby by Seller have been duly authorized by the
requisite vote of the Board of Seller. This Agreement has been duly and
validly executed by Seller and constitutes, and when executed and delivered,
each other document and instrument to be executed and delivered by Seller
pursuant hereto, will constitute, a valid and binding agreement of Seller
enforceable against it in accordance with their respective terms subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights generally and except to the extent that the enforceability of rights
and remedies may be limited by general principles of equity. The execution
and delivery of this
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Agreement does not, and, subject to any requisite governmental or other
consents or approvals, the consummation of the transactions contemplated
hereby will not, (i) violate any provision of the Articles of Incorporation,
as amended, of Seller, or the Bylaws of Seller, (ii) violate or conflict with
any law, ordinance, rule, regulation, order, judgment or decree to which
Seller is subject or by which Seller is bound, or (iii) violate or conflict
with or constitute a material default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or will result in
the termination of, or accelerate the performance required by, or result in
the creation of any lien, security interest, charge or encumbrance upon any
of the properties or assets under, any term or provision of any material
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Seller is a party or by which any of its
assets or properties may be bound or affected. Except for required approvals
of the Nevada Gaming Authorities, no consent, approval, authorization or
action by any other federal, state, local or foreign governmental agency,
instrumentality, commission, authority, board or body (collectively,
"Governmental Agency") or any other third party is required in connection
with the execution and delivery by Seller of this Agreement and the other
documents and instruments to be executed and delivered by Seller pursuant
hereto or the consummation by Seller of the transactions contemplated herein
or therein.
(c) CAPITAL STRUCTURE. The authorized capital stock of Seller as
of September 11, 1996 consists solely of Fifteen Million (15,000,000) Shares,
of which 6,608,000 are issued and outstanding, and Fifteen Million
(15,000,000) shares ("Preferred Shares") of a preferred class, $.001 par
value, none of which Preferred Shares are issued and outstanding. No Shares
or Preferred Shares are held as treasury shares. All of the outstanding
shares of capital stock of Seller have been duly authorized and validly
issued and are fully paid and nonassessable and free from preemptive rights.
Schedule 4(c) sets forth a list of each stock option, warrant or other right
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to acquire securities of Seller (an "Option") outstanding on the date of this
Agreement. There are no outstanding options, warrants, convertible
securities, subscriptions or other rights or agreements providing for the
issuance or delivery of any additional shares of capital stock of Seller,
except the Options.
(d) VALID ISSUANCE OF SHARES. The Shares that are being purchased
hereunder, when issued, sold and delivered in accordance with the terms of
this Agreement and the Option Agreement, for the consideration expressed
herein and therein, will be duly and validly issued, fully paid and
nonassesszable. The Shares issuable upon conversion of the Note have been
duly and validly reserved for issuance, and when issued upon conversion, will
be duly and validly issued, fully paid and nonassessable.
(e) SUBSIDIARIES. Seller has no subsidiaries, either wholly or
partially owned.
(f) SEC DOCUMENTS. Seller has made available to Purchaser a true
and complete copy of each report, schedule, registration statement and
definitive proxy statement filed by Seller with the SEC since March 31, 1994
(as such documents have since the time of their filing been amended, the
"Seller SEC Documents") which are all of the documents (other than
preliminary material) that Seller was required to file with the SEC since
such date. As of their respective dates, the Seller SEC Documents complied
in all material respects with the requirements of the Securities Act of 1933,
as amended (the "1933 Act"), or the Securities Exchange Act of 1934, as
amended, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Seller SEC Documents, and none of the Seller
SEC Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Seller included in the Seller
SEC Documents comply as to form in all material respects with applicable
accounting
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requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in the case of
the unaudited statements, as permitted by Form 10-QSB of the SEC) and fairly
present (subject, in the case of the unaudited statements, to normal,
recurring audit adjustments) the consolidated financial position of Seller as
at the dates thereof and the consolidated results of its operations and cash
flows for the periods then ended. To the best of its knowledge Seller is not
now, nor has it ever been, the subject of any inquiry or other investigation
by the SEC ("SEC Investigation"), nor, to the best knowledge of Seller, is
any such SEC Investigation pending or threatened.
(g) TITLE TO ASSETS. Seller has good, marketable and valid title
in and to all of its assets, including all real, personal and intangible
property, and, except for the lien created by the Indenture and as set forth
on Schedule 4(g), holds its assets free and clear of any mortgage,
conditional sale agreement, title retention agreement, security interest,
lease, pledge, hypothecation, lien or other encumbrance.
(h) CONDITION OF ASSETS. All of the assets (whether owned or
leased) that are necessary for the conduct of the business of Seller are in
normal operating condition, free from defects other than such minor defects
as do not materially interfere with the continued use thereof in normal
operations.
(i) INSURANCE. Seller (a) maintains insurance policies with
licensed insurance carriers on such assets, properties and businesses and
against such risks as is customary for companies engaged in its business, or
(b) has reserved on the Financial Statements sufficient funds to cover all
losses known to it arising from such risks. Schedule 4(i) sets forth a list
and brief description (specifying the insurer and describing each pending
claim thereunder) of all
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policies, binders or reserves of fire, liability, workers' compensation,
vehicular and other insurance or self-insurance held by or on behalf of
Seller. All such policies are in full force and effect and insure against
risks and liabilities to an extent and in a manner customary in the industry
in which Seller operates. Except for claims identified on Schedule 4(i),
there are no outstanding unpaid claims under any such policy, binder or
reserve. Except as set forth on Schedule 4(i), there will be no liability of
Seller, as of the Closing Date, under any such insurance policy or ancillary
agreement with respect thereto in the nature of a retroactive rate
adjustment, loss sharing arrangement or other actual or contingent liability
arising wholly or partially out of events occurring prior to the Closing
Date. Seller has received no notice of cancellation or nonrenewal of any
such policy or binder. There is no inaccuracy in any application for such
policies or binders, or any failure to pay premiums due.
(j) DIVIDENDS AND DISTRIBUTIONS. From December 31, 1995 to the
date hereof, Seller has not declared or paid any dividends on any Shares or
Preferred Shares, nor has it made any other payments or distributions thereon
to its shareholders.
(k) SELLER DATA. Seller has made available to Purchaser its
corporate minutes, articles and bylaws, books and records, all material
contracts, summaries of all loans and all leases, evidence of all bank
accounts, an accurate and complete list of each insurance policy currently
providing coverage for the real and personal property owned, operated or
leased together with copies of such policies, information regarding employee
compensation and benefit plans, a list of all outstanding workers
compensation and unemployment claims, all licenses and permits that Seller
has with respect to its operations, and all outstanding citations or
complaints relating to environmental, health or safety laws or regulations
(collectively, the "Seller Data"). Seller acknowledges that Purchaser has
relied on the Seller Data in deciding to execute this Agreement and
consummate the transactions contemplated hereby.
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(l) UNDISCLOSED LIABILITIES. Seller has no liabilities or
obligations of any nature, secured or unsecured (absolute, accrued,
contingent or otherwise and whether due or to become due), which would result
in a Material Adverse Effect, except (i) liabilities and obligations that are
fully reflected, reserved against or disclosed in the Financial Statements,
and (ii) liabilities and obligations incurred in the ordinary course of
business consistent with past practice.
(m) INVESTIGATION OR LITIGATION. Except as set forth on Schedule
4(m), there is no investigation or review pending or to the best knowledge of
Seller threatened by the Nevada Gaming Authorities or any other Governmental
Agency or other party or person with respect to Seller; nor have the Nevada
Gaming Authorities or any other Governmental Agency or other party or person
indicated in writing to Seller an intention to conduct any such investigation
or review; nor, to the knowledge of Seller, is there any valid basis for any
such investigation or review. Except as set forth on Schedule 4(m), there is
no claim, action, suit or proceeding pending before or, to the best knowledge
of Seller, threatened against or affecting Seller at law or in equity by, the
Nevada Gaming Authorities or any other Governmental Agency or other party or
person, nor is there, to the best knowledge of Seller, any valid basis for
any such claim, action, suit or proceeding.
(n) CERTAIN AGREEMENTS. Except as disclosed in the Seller SEC
Documents filed prior to the date of this Agreement or in Schedule 4(n) as of
the date of this Agreement, Seller is not a party to any oral or written (i)
consulting agreement not terminable on 60 days' or less notice, (ii)
agreement with any executive officer or other key employee of Seller, or
(iii) agreement or plan, including any stock option plan, stock appreciation
rights plan, any of the Plans (as defined in Section 4(o)), restricted stock
plan or stock purchase plan, any of the benefits of which will be increased,
or the vesting of the benefits of which will be accelerated, by the
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occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any
of the transactions contemplated by this Agreement.
(o) EMPLOYEE BENEFITS.
(i) Schedule 4(o) contains a true and complete list of each
bonus, deferred compensation, incentive compensation, stock purchase, stock
option, severance or termination pay, hospitalization or other medical, life
or other insurance, supplemental unemployment benefits, profit-sharing,
pension, retirement or other employee benefit plan, program, practice,
agreement or arrangement, including, without limitation, each "employee
benefit plan" as defined in section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), sponsored, maintained,
contributed to or required to be contributed to by Seller or any trade or
business, whether or not incorporated (an "ERISA Affiliate"), whose employees
would, for the purposes of applying certain provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), be aggregated with the
employees of Seller under Section 414(b), (c), (m), (n) and/or (o) of the
Code or which would be deemed to be a member of a "controlled group" within
the meaning of section 4001(a)(14) of ERISA of which Seller is also a
member, for the benefit of current or former employees or directors of Seller
and/or such ERISA Affiliate (the "Plans"). Seller has delivered or made
available to Purchaser true and complete copies of all documents, as they may
have been amended to the date hereof, embodying or relating to the Plans.
(ii) Each of the Plans has been operated and administered in
all material respects in accordance with applicable laws, including but not
limited to ERISA and the Code. No violation of Section 404 of ERISA has
occurred with respect to any Plan.
(iii) There are no pending, or to the best knowledge of
Seller, threatened
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or anticipated claims (other than routine claims for benefits) by, on behalf
of or against any of the Plans or any trusts related thereto.
(p) LABOR MATTERS. Seller has not entered into any collective
bargaining agreements or any other agreements with any labor organization or
any other person or group claiming to represent or bargain collectively for
any of Seller's employees. There are no unfair labor practice charges,
lawsuits, grievances or administrative charges pending or to the best
knowledge of Seller threatened, concerning or affecting Seller. Seller has
received no written notice nor has there been any proceeding or adjudication
questioning whether or alleging or determining that Seller is not in
compliance, in all material respects, with all federal, state and local laws
and regulations with respect to employment, employment practices and terms
and conditions of employment.
(q) TAXES. Seller has (i) timely filed all tax returns, schedules,
declarations, and tax-related documents including, without limitation, all
Forms 5500 pertaining to the Plans (collectively, "Returns") required to be
filed in any jurisdictions to which it is or has been subject, (ii) timely
paid in full all taxes, interest and penalties with respect thereto subject
to audit by the taxing authorities by such jurisdictions and timely made all
deposits of tax required by all applicable taxing jurisdictions, (iii) fully
accrued on its books an amount sufficient to pay all taxes not yet due but
related to operations through the date hereof and will have accrued all taxes
not yet due but which will become due through the Closing Date, (iv) made
timely payments of all taxes required to be deducted and withheld from the
wages paid to employees, and (v) otherwise satisfied, in all material
respects, all legal requirements applicable to it with respect to all
aforementioned obligations to taxing jurisdictions. All Returns filed by
Seller accurately reflect in all material respects their income, expenses,
deductions, credits and loss carryovers and the taxes due and are otherwise
accurate and complete in all material respects and have not been
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amended. Seller has delivered to Purchaser true and complete copies of all
federal and state income and franchise tax returns for each of the taxable
years ended September 30, 1993 through September 30, 1995, inclusive. Seller
has no knowledge that an audit of any of the federal income tax returns of
Seller is in progress and has no reason to believe that any such audit is
contemplated. For purposes of this Section, "tax" and "taxes" (when not
modified by other words such as "income" or "franchise") shall include all
income, gross receipts, franchise, excise, real and personal property, and
other taxes imposed by any federal, state, municipal, local, or other
governmental agency, including assessments in the nature of taxes.
(r) ABSENCE OF CERTAIN CHANGES. Since December 31, 1995, Seller
has not suffered any Material Adverse Effect.
(s) CONDUCT OF BUSINESS. Except as shown on Schedule 4(s), since
the close of business on June 30, 1996, Seller has not, and prior to the
Closing Date will not have, without the prior written consent of Purchaser:
(i) Issued, sold, redeemed, reclassified or purchased any Shares
or Preferred Shares or other corporate securities, warrants
or debt instruments or granted any Options or other rights
in connection therewith, except in connection with the
exercise of warrants outstanding as of June 30, 1996.
(ii) Incurred, paid or settled any obligations, commitments or
liabilities, absolute, accrued, contingent or otherwise,
which would result in a Material Adverse Effect, except
obligations, commitments or liabilities to perform sales
contracts, purchase orders or similar commitments, in each
case incurred, paid or settled in normal amounts and in the
regular and ordinary course of Seller's business.
(iii) Incurred any continuing contract or commitment or other
liability for the future purchase of materials, supplies or
equipment which is not in the regular and ordinary course of
the business, or any contracts or commitments for capital
expenditures in excess of Twenty-Five Thousand Dollars
($25,000) individually or One Hundred Thousand Dollars
($100,000) in the aggregate.
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(iv) Conducted its business other than in the regular and ordinary
course thereof.
(v) Sold, assigned, transferred, encumbered or granted a security
interest in respect of any of its assets.
(vi) Entered into any pension, retirement, deferred compensation,
profit sharing, bonus, retainer, consulting, welfare or
incentive compensation plan or arrangement, or any contract,
or any fringe or other benefits or arrangements, of, with or
for any officer, director, employee or any other person; or
granted any increase in the compensation payable, or to
become payable, by Seller to any of its officers, directors,
employees or other persons (other than customary merit
increases of nonofficers), or in any bonus, insurance,
pension or other benefit plan made for or with any of them.
(vii) Terminated any material contract, agreement, license or other
instrument to which it is a party other than in the regular
and ordinary course of business.
(viii) Changed its Articles of Incorporation, Bylaws or any aspect
of its corporate structure.
(ix) Agreed to do any of the things or made any commitment to
take any of the types of action specified in (i) through
(viii) above.
(t) LEGAL COMPLIANCE. Seller has complied in all material respects
with all applicable laws, rules, regulations, and ordinances of any Governmental
Agency (including, without limitation, all laws and regulations of the Nevada
Gaming Authorities) having jurisdiction, any trademark, tradename or copyright
rules and regulations, and any zoning, occupational safety or environmental
protection laws or any laws relating to the employment of labor. Seller is not
in violation of, or in default under, any terms or provisions of any mortgage,
indenture, security agreement, lease, license, contract, agreement, instrument,
order, arbitration award, judgment, injunction or decree (other than violations
or defaults which individually or in the aggregate would not result in a
Material Adverse Effect). Seller has not received any written notice nor has
there been any proceeding or adjudication questioning whether or alleging or
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determining that the business of Seller is or has been conducted in violation of
any law, ordinance, regulation, order, decree, judgment or injunction. Except
as disclosed on Schedule 4(t), Seller has not received any written notice nor
has there been any proceeding or adjudication questioning whether or alleging or
determining that it has not obtained all permits, licenses and other
authorizations which relate to the assets or the business of Seller. Seller
has not received any written notice nor has there been any proceeding or
adjudication questioning whether or alleging or determining that it is not in
compliance in all material respects with all material terms and conditions of
such permits, licenses and authorizations.
(u) ENVIRONMENTAL PROTECTION.
(i) Seller is in compliance with all Environmental Laws (as
hereinafter defined) applicable to the business of Seller. Seller has disclosed
to Purchaser all outside consultants' reports, internal memoranda, legal
documents and any other information, written or otherwise (including without
limitation, phase 1 and phase 2 reports) in Seller's possession relating to its
and their compliance with all Environmental Laws.
(ii) "Environmental Laws" means all U.S. federal, state, local
and foreign laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata).
(v) COPYRIGHTS, TRADEMARKS, TRADE NAMES, ETC. Schedule 4(v) contains
an accurate and complete list of all material copyrights, trademark
registrations, trademark applications, service marks, trade names and assumed
names used in Seller's business. Seller has not received written notice nor has
there been any proceeding or adjudication questioning whether or alleging or
determining that the use thereof by Seller infringes on or conflicts with any
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existing patents, trademarks or copyrights or any other rights of any person.
Seller has not received any written notice of any material claim of a third
party to the use of any such names.
(w) CONTRACTS. Except for employment arrangements disclosed on
Schedule 4(n), each contract and commitment (whether written or oral) that
individually involves potential future payments by or to Seller of $50,000 or
more is disclosed on Schedule 4(w) (except as otherwise indicated therein) and
copies of such written contracts or commitments have been provided to Purchaser.
Seller is not, nor has it been during the past three years, a partner in any
partnership or a party to any joint venture.
(x) FULL DISCLOSURE. There is no fact known to Seller which has not
been disclosed to Purchaser in writing, that has caused, or would reasonably be
anticipated to result in, a Material Adverse Effect.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. As a material inducement
to Seller to enter into this Agreement, Purchaser represents, warrants to and,
where applicable, covenants with Seller that as of the date hereof and as of the
Closing Date:
(a) DUE ORGANIZATION. Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Ohio, has the requisite power and authority to own its properties and to carry
on its business as it is now being conducted.
(b) POWER AND AUTHORITY; NO CONFLICTS. Purchaser has the requisite
power and authority to enter into and carry out the terms of this Agreement.
The execution and delivery of this Agreement and the other documents and
instruments to be executed and delivered by Purchaser pursuant hereto and the
consummation of the transactions contemplated hereby and thereby by Purchaser
have been duly authorized by all necessary action of Purchaser. This Agreement
has been duly and validly executed and delivered by Purchaser and constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered
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by Purchaser will constitute, valid and binding agreements of Purchaser,
enforceable against Purchaser in accordance with their respective terms
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights generally and except to the extent that the enforceability
of rights and remedies may be limited by general principles of equity. The
execution and delivery of this Agreement does not, and, subject to any
requisite governmental or other consents or approvals (including, without
limitation, Licensing Approval of the Nevada Gaming Authorities), the
consummation of the transactions contemplated hereby and thereby will not,
(i) violate any provision of the Articles of Organization or the Operating
Agreement of Purchaser, or (ii) violate or conflict with any law, ordinance,
rule, regulation, order, judgment or decree to which Purchaser is subject or
by which Purchaser is bound (other than violations or conflicts which
individually or in the aggregate would not have a Purchaser Material Adverse
Effect or which would not prevent or delay the consummation of the
transactions contemplated hereby). Except for any required Licensing Approval
of the Nevada Gaming Authorities, no consent, approval, authorization or
action by any Governmental Agency or any other third party is required in
connection with the execution and delivery by Purchaser of this Agreement and
the other documents and instruments to be executed and delivered by Purchaser
pursuant hereto or the consummation by Purchaser of the transactions
contemplated herein or therein.
(c) INVESTMENT PURPOSE. The Shares and the Note being acquired by
Purchaser pursuant to this Agreement and the Option Agreement are being acquired
for Purchaser's own account and not with the view to or for resale in connection
with, any distribution or public offering thereof within the meaning of the 1933
Act. Purchaser understands that the Shares have not been registered under the
1933 Act by reason of their contemplated issuance in a transaction believed to
be exempt from the registration and prospectus delivery requirements of the 1933
Act
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pursuant to Section 4(2) thereof, and in transactions believed to be exempt
from the registration and/or qualification provisions of the appropriate state
securities laws. Purchaser has such knowledge and experience in financial and
business matters that it is capable of independently evaluating the risks and
merits of purchasing or acquiring the Shares. Purchaser is an accredited
investor as defined in Regulation D promulgated under the 1933 Act. Purchaser
has not been formed solely for the purpose of consummating the transactions
contemplated hereby.
5. CLOSING
The Closing hereunder shall take place at 10:00 a.m. on the Closing
Date at the offices of ▇▇▇▇ ▇▇▇▇▇▇ & Parks, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
6. UNDERTAKINGS.
(a) Prior to the date hereof, Purchaser and its agents and
representatives commenced and, from and after the date hereof, shall be
permitted to continue Purchaser's due diligence review of Seller, in
anticipation of the Closing, and shall have full access to all relevant
information regarding Seller, its assets, the business and the Shares to
determine that all financial and other information that has been and will be
provided to Purchaser is reasonably accurate. Purchaser acknowledges that such
information shall be and remain confidential until the Closing. In the event
the transactions contemplated by this Agreement do not close, Purchaser shall
return to the Seller all documents previously furnished to Purchaser by the
Seller. Purchaser and its agents and representatives hereby agree that they
will not divulge or use any confidential or other proprietary information
regarding Seller, except to the extent (i) required by law, (ii) otherwise
available from third parties, or (iii) previously known to Purchaser from
sources other than the Seller.
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(b) Seller and ▇▇▇▇▇▇ shall not divulge or use any confidential or
proprietary information regarding the Purchaser, except to the extent (i)
required by law, (ii) otherwise available from third parties, or (iii)
previously known to Seller or ▇▇▇▇▇▇ from sources other than the Purchaser.
8. INTENTIONALLY OMITTED.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder are subject to the following
conditions, any of which may be waived in writing by Purchaser:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of Seller and ▇▇▇▇▇▇ contained in this Agreement
shall be true and correct on the Closing Date with the same effect as if made on
and as of such date. All Schedules and all other information furnished to
Purchaser pursuant to this Agreement shall be updated by Seller as of the
Closing Date.
(b) PERFORMANCE OF AGREEMENTS AND CONDITIONS. Seller and ▇▇▇▇▇▇
shall have performed and complied with all agreements and conditions required by
this Agreement to be performed and complied with by Seller and ▇▇▇▇▇▇, as the
case may be, prior to or at the Closing Date.
(c) SECRETARY'S CERTIFICATE. Seller shall have delivered to
Purchaser a certificate from its Secretary, dated the Closing Date, certifying
in such detail as Purchaser may reasonably request to Seller's and ▇▇▇▇▇▇'▇
fulfillment of the conditions specified in subsections (a) and (b) above and
such other evidence as to Seller's and ▇▇▇▇▇▇'▇ compliance with the provisions
of this Agreement as Purchaser reasonably may request.
(d) Intentionally Omitted.
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(e) INJUNCTION. On the Closing Date there shall not be in effect any
injunction, writ, temporary restraining order or any other order of any nature
issued by a court or other governmental body or agency of competent jurisdiction
directing that the transactions provided for herein not be consummated as herein
provided, nor shall there be any litigation or proceeding pending or threatened
in respect of the transactions contemplated hereby.
(f) OPTION AGREEMENT. ▇▇▇▇▇▇ and Purchaser shall have entered into
the Option Agreement.
(g) REGISTRATION AGREEMENT. Seller and Purchaser shall have entered
into the Registration Agreement.
(h) LEASE. Seller and ▇▇▇▇▇▇ shall have entered into a lease for
adjacent real property (the "Lease") in substantially the form and substance of
Exhibit E attached hereto and incorporated herein by reference.
(i) INSTRUMENTS OF TRANSFER AND OTHER DOCUMENTS. Seller shall have
delivered to Purchaser instruments of transfer which vest in Purchaser good and
marketable title to the Shares as required herein, and shall have delivered all
other instruments, certificates and other documents required to be delivered
hereunder.
(j) CONDITION OF BUSINESS AND PROPERTIES. Between the date of this
Agreement and the Closing Date, Seller shall have continued to operate its
business in its regular and ordinary course, and shall not have suffered a
Material Adverse Effect.
(k) GOVERNMENTAL APPROVAL. Nothing in this Agreement shall be
construed to permit Purchaser to acquire control of Seller (as such term is
defined in Nevada Gaming Regulation 16.010(1)) without first obtaining Licensing
Approval.
(l) Intentionally Omitted.
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(m) OPINION OF COUNSEL. Purchaser shall have received a legal
opinion from Jones, Jones, Close & ▇▇▇▇▇, Chartered, counsel for Seller and
▇▇▇▇▇▇, dated as of the Closing Date, in form and substance reasonably
satisfactory to Purchaser's counsel.
(n) DELIVERY OF DOCUMENTS. Seller and ▇▇▇▇▇▇ shall have delivered to
Purchaser the documents contemplated by Section 13(a) not otherwise hereinabove
specified.
Seller and ▇▇▇▇▇▇ represent and warrant that they have not caused, and they
covenant and agree that they shall not cause, any event that would prevent the
satisfaction of all of the conditions set forth in this Section 9. Seller and
▇▇▇▇▇▇ covenant and agree to take all action reasonably required to satisfy such
conditions.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND ▇▇▇▇▇▇
The obligations of Seller and ▇▇▇▇▇▇ hereunder are subject to the
following conditions, any of which may be waived in writing by Seller and
▇▇▇▇▇▇:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of Purchaser contained in this Agreement shall be
true and correct on the Closing Date with the same effect as if made on and as
of such date.
(b) PERFORMANCE OF AGREEMENTS AND CONDITIONS. Purchaser shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by Purchaser prior to or at the
Closing Date.
(c) PRESIDENT'S CERTIFICATE. Purchaser shall have delivered to
Seller and ▇▇▇▇▇▇ the certificate of Purchaser's Manager or President, dated the
Closing Date, certifying in such detail as Seller and ▇▇▇▇▇▇ reasonably may
request to Purchaser's fulfillment of the conditions specified in subsections
(a) and (b) above and such other evidence as to Purchaser's compliance with the
provisions of this Agreement as Seller and ▇▇▇▇▇▇ reasonably may request.
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(d) OPINION OF COUNSEL. Purchaser shall have delivered to Seller and
▇▇▇▇▇▇ an opinion of ▇▇▇▇ ▇▇▇▇▇▇ & Parks, counsel for Purchaser, dated as of the
Closing Date, in form and substance reasonably satisfactory to Seller's and
▇▇▇▇▇▇'▇ counsel.
(e) INJUNCTION. On the Closing Date there shall not be in effect any
injunction, writ, temporary restraining order or any order of any nature issued
by a court or other governmental body or agency directing that the transactions
provided for herein not be consummated as herein provided, nor shall there be
any litigation or proceeding pending or threatened in respect of the
transactions contemplated hereby.
(f) DELIVERY OF DOCUMENTS. Purchaser shall have delivered to Seller
the documents contemplated by Section 13(b) not otherwise hereinabove specified.
Purchaser represents and warrants that it has not caused, and it covenants
and agrees that it shall not cause, any event that would prevent the
satisfaction of all of the conditions set forth in this Section 10. Purchaser
covenants and agrees to take all action reasonably required to satisfy such
conditions.
11. INDEMNIFICATION BY SELLER AND ▇▇▇▇▇▇
Seller shall and hereby does indemnify and hold Purchaser harmless
from and against and in respect of any and all loss, damage and expense incurred
by Purchaser, resulting from, arising out of, attributable to, or in any manner
connected with:
(i) Any matter in respect of which Seller shall have made any
misrepresentation, breached any warranty made pursuant to
this Agreement or failed to fulfill any covenant or
agreement on the part of Seller contained in this Agreement
or in any Exhibit, Schedule or certificate or other document
delivered, or to be delivered, by Seller to Purchaser in
connection with this Agreement;
(ii) Any liability of Seller actual or contingent, current or
deferred, not disclosed in the Financial Statements, or any
Exhibit or Schedule furnished pursuant hereto; and
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(iii) Any and all actions, suits, proceedings, demands, assessments
or judgments, costs and expenses (including reasonable legal
and accounting fees and investigation costs) incident to the
foregoing and the enforcement thereof.
▇▇▇▇▇▇ shall and hereby does indemnify and hold Purchaser harmless from and
against and in respect of any and all loss, damage and expense incurred by
Purchaser, resulting from, arising out of, attributable to, or in any manner
connected with any matter in respect of which ▇▇▇▇▇▇ shall have made any
misrepresentation, breached any warranty made pursuant to this Agreement or
failed to fulfill any covenant or agreement on the part of ▇▇▇▇▇▇ contained in
this Agreement or in any certificate or other document delivered, or to be
delivered, by ▇▇▇▇▇▇ to Purchaser in connection with this Agreement and for any
and all actions, suits, proceedings, demands, assessments, or judgments, costs
and expenses (including reasonable legal and accounting fees and investigation
costs) incident to the foregoing and the enforcement thereof.
The indemnification obligations of Seller and ▇▇▇▇▇▇ pursuant to this
Section 11 are several and not joint and several.
If any event shall occur or any circumstance arise which might give rise to
a claim in respect of any matter against which Seller and/or ▇▇▇▇▇▇ have
indemnified Purchaser hereunder, Purchaser promptly shall give notice thereof to
Seller and/or ▇▇▇▇▇▇. If the matter as to which indemnification may be sought
is a claim by a third party, such notice shall be given within thirty (30) days
after said claim shall have been presented to Purchaser; otherwise such notice
shall be given promptly after Purchaser shall determine that the matter is one
as to which indemnification is sought. Unless the parties otherwise agree in
writing, Seller and/or ▇▇▇▇▇▇ shall defend against all such third-party claims
or otherwise satisfy said claims, at their sole cost and expense, through
counsel and accountants designated by them and approved by Purchaser, which
approval shall not be withheld unreasonably. Purchaser shall have the right to
participate with Seller and/or ▇▇▇▇▇▇
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in the defense of any such matter and shall fully cooperate with and make
available to Seller and/or ▇▇▇▇▇▇ the business records of Purchaser for said
purpose. If Seller and/or ▇▇▇▇▇▇, after receipt of notification from
Purchaser of a third-party claim, fail to protest, defend or settle any such
third-party claim, demand, suit or proceeding promptly, diligently and in
good faith, Purchaser shall have the right at its discretion to settle,
defend or pay the same, in which event, Seller's and/or ▇▇▇▇▇▇'▇ indemnity
shall extend to and include the amount of said settlement or payment and/or
the costs and legal expenses of such defense.
12. INDEMNIFICATION BY PURCHASER
Purchaser shall and hereby does indemnify and hold Seller harmless
from and against and in respect of any and all loss, damage and expense
incurred by Seller, resulting from, arising out of, attributable to, or in
any manner connected with:
(a) Any matter in respect of which Purchaser shall have made any
misrepresentation, breached any warranty made pursuant to this
Agreement or failed to fulfill any covenant or agreement on the
part of Purchaser contained in this Agreement or in any Exhibit,
Schedule or certificate or other document delivered, or to be
delivered, by Purchaser to Seller in connection with this
Agreement; and
(b) Any and all actions, suits, proceedings, demands, assessments or
judgments, costs or expenses (including reasonable legal and
accounting fees and investigation costs) incident to the
foregoing and the enforcement thereof.
If any event shall occur or any circumstance arises which might give rise
to a claim in respect of any matter against which Purchaser has indemnified
Seller hereunder, Seller shall give notice thereof to Purchaser within thirty
(30) days after said claim shall have been presented to it and, unless the
parties otherwise agree in writing, Purchaser shall defend against said claim or
otherwise satisfy said claim, at its sole cost and expense, through counsel and
accountants designated by Purchaser and approved by Seller, which approval shall
not be unreasonably withheld. Seller shall have the right to participate with
Purchaser in the defense of any such
-24-
matter and shall fully cooperate with and make available to Purchaser the
business records of Seller for said purpose. If Purchaser, after receipt of
notification from Seller of a thirty-party claim, fails to protest, defend or
settle any such third-party claim, demand, suit or proceeding promptly,
diligently and in good faith, Seller shall have the right in its discretion
to settle, defend or pay the same, in which event, Purchaser's indemnity
shall extend to and include the amount of said settlement or payment and/or
the costs and legal expenses of such defense.
13. DOCUMENTS TO BE DELIVERED AT CLOSING
At the Closing on the Closing Date:
(a) Seller and/or ▇▇▇▇▇▇ shall deliver to Purchaser the following:
(i) The Note referred to in Section 2(a);
(ii) Certificates representing the Shares being purchased under
Section 2(b) and the Option Agreement, if any;
(iii) The Deed of Trust and Security Agreement referred to in
Section 2(a);
(iv) The Option Agreement referred to in Section 2(c);
(v) The Registration Agreement referred to in Section 3(a);
(vi) The Lease referred to in Section 9(h);
(vii) The certificate referred to in Section 9(c);
(viii) A copy of the Seller's Articles of Incorporation and Bylaws
certified as of the Closing Date by the Secretary thereof;
(ix) The opinion of counsel referred to in Section 9(m);
(x) Certified resolutions of Seller's Board authorizing and
approving this transaction; and
(xi) All other instruments not herein specifically provided for
but which are reasonably necessary or desirable to
effectuate the purpose of this Agreement.
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(b) DELIVERIES BY PURCHASER. Purchaser shall deliver to Seller
and/or ▇▇▇▇▇▇, as appropriate, the following:
(i) The purchase price due at Closing pursuant to Section 2;
(ii) The Option Agreement referred to in Section 2(c);
(iii) The Registration Agreement referred to in Section 3(a);
(iv) Certified resolutions of the Manager of Purchaser
authorizing this transaction;
(v) The certificate referred to in Section 10(c);
(vi) The opinion of counsel referred to in Section 10(d); and
(vii) All other instruments not herein specifically provided for
but which are reasonably necessary or desirable to effectuate
the purpose of this Agreement.
14. BROKERAGE
Each party represents and warrants to the other that except for ▇▇▇▇▇▇▇
Securities, Inc., ("Broker") whose compensation shall be the sole responsibility
of Seller, no person or persons assisted in or brought about the negotiation of
this Agreement in the capacity of broker, agent, finder or originator on behalf
of it. Each party ("First Party") agrees to indemnify and hold harmless the
other from any claim asserted against such other party for a brokerage or
agent's or finder's or originator's commission or compensation in respect of
the transaction contemplated by this Agreement by any person (other than Broker
as hereinabove provided) purporting to act on behalf of First Party.
15. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
All representations, warranties and agreements made by Seller, ▇▇▇▇▇▇
or Purchaser pursuant hereto shall survive for a period of three (3) years from
and after the Closing of this
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transaction. None of the representations, warranties and agreements shall be
affected by any investigation at any time made by or on behalf of any of
Seller, ▇▇▇▇▇▇ or Purchaser.
16. REGULATORY CONCERNS
(a) Purchaser acknowledges and understands that notwithstanding
anything to the contrary contained herein if the Commission at any time
determines that Purchaser is unsuitable to hold Shares or other securities of
Seller, then until such Shares or other securities are owned by persons other
than Purchaser, (i) Seller shall not be required or permitted to pay any
dividend or interest with regard to such Shares or other securities, (ii) the
holder of such Shares or other securities shall not be entitled to vote on any
matter as a holder of such Shares or other securities, and such Shares or other
securities shall not for any purposes be included in the Shares or other
securities of the Company entitled to vote, and (iii) Seller shall not pay any
remuneration in any form to the holder of such Shares or other securities.
(b) The parties acknowledge that Purchaser and its affiliates will be
seeking appropriate Licensing Approval from the Nevada Gaming Authorities, and
that no assurance can be given that such Licensing Approval will be issued or
when such Licensing Approval may be issued. The Purchaser agrees to file for
such Licensing Approval as soon as practicable and to pursue their issuance with
reasonable diligence. If Purchaser or its affiliates are (i) found unsuitable,
(ii) denied such Licensing Approval or (iii) do not obtain such Licensing
Approval on or before the third anniversary of the Closing Date, then, subject
to the requirements of the Nevada Gaming Authorities, Seller, upon Purchaser's
request, shall on such third anniversary or such earlier time that there is a
finding of unsuitability or a denial of such Licensing Approval (i) pay off the
indebtedness owing to Purchaser under the Note and/or (ii) redeem the Shares
previously purchased by Purchaser from Seller at a price equal to the
consideration paid for such Shares by Purchaser. The principal balance of the
Note, together with interest owing thereon
-27-
through the date of the event triggering the payment, shall be paid off
within six (6) months following the date of the event triggering payment or
such shorter period as may be required by the Nevada Gaming Authorities. The
purchase price for the redemption of Shares pursuant to this Section 16(b)
shall be paid without interest and shall be paid in twenty-four (24) equal,
consecutive monthly installments or such shorter period as may be required by
the Nevada Gaming Authorities. The installments shall commence on the first
day of the calendar month following the month in which the event triggering
payment occurred. Further, in the event that the Gaming Board, pursuant to
the ruling letter request described in Section 3(b), requires the
transactions contemplated by this Agreement to be unwound, then, subject to
the requirements of the Gaming Board, the Note shall be paid off and the
Shares shall be redeemed by Seller in accordance with the procedure described
above, except that in such event the purchase price for the Shares shall be
paid within a six (6) month period or such shorter period as may be required
by the Nevada Gaming Authorities.
17. REIMBURSEMENT OF EXPENSES OF PURCHASER
Upon the Closing, Seller shall reimburse Purchaser for and/or pay directly
on behalf of and in the name of Purchaser, all the fees and expenses of
Purchaser's attorneys and accountants' fees incurred in the negotiation and
consummation of the transactions contemplated hereby; provided, however, that
(i) such fees and expenses shall not include any fees and expenses incurred by
Purchaser and its affiliates in connection with obtaining appropriate gaming
licenses in Nevada and (ii) such fees and expenses shall not exceed $100,000.
18. BINDING AGREEMENT
All of the terms and provisions of this Agreement shall inure to the
benefit of, be enforceable by and be binding upon and enforceable against the
parties hereto and their respective heirs and personal representatives,
successors and assigns; provided, however, that except as
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specified in Section 27 hereof, none of the parties hereto may assign its
rights or duties hereunder. Nothing contained in this Agreement shall confer
any rights or remedies upon any other person, firm or corporation.
19. NOTICES
Any notice or other communication required or permitted hereunder
shall be expressed in writing and delivered in person or sent by certified or
registered mail, return receipt requested, or sent by overnight courier service
such as Federal Express and confirmed by certified or registered mail, return
receipt requested, or sent by facsimile (receipt confirmed) to the respective
parties at the following addresses, or at such other addresses as the parties
shall designate by written notice to the other:
PURCHASER: Diversified Opportunities Group Ltd.
c/▇ ▇▇▇▇▇▇ Entertainment Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy To: ▇▇▇▇ ▇▇▇▇▇▇ & Parks
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
SELLER AND
▇▇▇▇▇▇: Boardwalk Casino, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy To: Jones, Jones, Close & ▇▇▇▇▇, Chartered
3773 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Parkway
Third Floor South
Las Vegas, Nevada 89109
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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All notices shall be deemed received on the third business day after mailing or
the first business day after delivery to the overnight courier service or the
same business day if personally delivered or sent by facsimile.
20. SECTION HEADINGS
The section and subsection headings and any table of contents listing
the same contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
21. SCHEDULES AND EXHIBITS
All Schedules and Exhibits referred to in this Agreement are attached
hereto and are hereby incorporated herein and made a part hereof.
22. COUNTERPARTS
This Agreement may be executed in any one or more counterparts, all of
which taken together shall constitute one instrument.
23. COOPERATION
Each party shall cooperate and use its best efforts to consummate the
transaction contemplated herein. In addition, each party shall cooperate and
take such action and execute such other and further documents as reasonably may
be requested from time to time after the Closing Date by any other party to
carry out the terms and provisions and intent of this Agreement.
24. GENDER
Wherever the context of this Agreement so requires or permits, the
masculine herein shall include the feminine or the neuter, the singular shall
include the plural, and the term "person" shall also include "corporation" or
other business entity.
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25. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
hereto, and it is understood and agreed that there are no other covenants,
representations or warranties other than those contained herein. This Agreement
may not be changed or modified except by a writing duly executed by the parties
hereto.
26. WAIVER OF PROVISIONS
The terms, covenants, representations, warranties and conditions of
this Agreement may be waived only by a written instrument executed by the party
waiving compliance. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right at a later date to enforce the same. No waiver by any party of any
condition or the breach of any provision, term, covenant, representation or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
27. ASSIGNMENT BY PURCHASER.
Subject to any required approval of the Nevada Gaming Authorities,
Purchaser may assign its rights and obligations hereunder, in whole or in part,
to one or more corporations, limited liability companies, partnerships, trusts,
or other entities which are under common control with, or controlled through
equity ownership and/or voting control by, Purchaser or ▇▇▇▇▇▇; it being
acknowledged that any entity in which ▇▇▇▇▇▇ beneficially owns 15% or more of
the voting equity securities and is Chairman of the Board and/or Chief Executive
Officer constitutes common control.
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28. ARBITRATION.
If any dispute shall arise among the parties with respect to this Agreement
or any of the transactions contemplated hereby, such dispute shall be settled by
arbitration pursuant to this Section 28. In such event, either party hereto may
serve upon the other party a written notice demanding that the dispute be
resolved pursuant to this Section 28. The dispute or claim shall be heard in
Chicago, Illinois by one (1) neutral arbitrator, if the parties can agree on the
selection of said arbitrator, or if unable to agree, each party shall select (1)
arbitrator and the two arbitrators chosen shall select the third arbitrator. If
the dispute shall be heard by three (3) arbitrators, one (1) arbitrator will be
selected by the party initiating the arbitration at the time of the submission
to arbitration. Within seven (7) days after submission, the other party will
select an arbitrator. Within seven (7) days after the first two (2) arbitrators
are chosen, the third arbitrator will be selected. The third arbitrator
selected shall not have any relationship to either of the parties. The
arbitrators shall apply the internal law of the State of Nevada. Said
arbitrator(s) shall be sworn faithfully and fairly to determine the question at
issue. The arbitrator(s) shall afford to the parties a hearing and the right to
submit evidence, with the privilege of cross examination and the right to compel
testimony by applying for subpoena powers to appropriate judicial authority, on
the question at issue, and shall, with all possible speed, make his/their
determination in writing and shall give notice to the parties hereto of such
determination. The concurring determination of the arbitrator, if heard by
one, or of any two of said three arbitrator(s) shall be binding upon the parties
hereto, or, in case no two of the arbitrators shall render a concurring
determination, then the determination of the third arbitrator appointed shall be
binding upon the parties hereto. The decision of the arbitrators shall be final
and binding upon the parties hereto and shall be enforceable in any court having
jurisdiction. Any arbitration shall be conducted in accordance with the then
prevailing Commercial Rules of
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the American Arbitration Association, or the successor party thereto from
time to time in existence. The fees and expenses of the arbitrator(s) shall
be divided equally between the parties so involved. The fees and expenses of
the prevailing party's attorneys in any arbitration proceedings shall be
borne by the non-prevailing party.
29. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the
State of Nevada.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above set forth.
SELLER:
BOARDWALK CASINO, INC.
By:
-------------------------------------
Title:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as
trustee under an agreement dated July 14,
1993
PURCHASER:
DIVERSIFIED OPPORTUNITIES GROUP LTD.
By: ▇▇▇▇▇▇ Entertainment Ltd.,
its Manager
By:
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
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LIST OF EXHIBITS AND SCHEDULES
CONTRACT
EXHIBIT REFERENCE DESCRIPTION
------- --------- -----------
A 2(a) Note
B 2(a) Deed of Trust and Security Agreement
C 2(c) Option Agreement
D 3(a) Registration Agreement
E 9(h) Lease
CONTRACT
SCHEDULE REFERENCE DESCRIPTION
-------- --------- -----------
4(c) 4(c) Options
4(g) 4(g) Liens
4(i) 4(i) Insurance and Claims
4(m) 4(m) Investigations and Litigation
4(n) 4(n) Certain Agreements
4(s) 4(s) Conduct of Business
4(t) 4(t) Legal Compliance
4(o) 4(o) Benefit Plans
4(v) 4(v) Intellectual Property
4(w) 4(w) Contracts
