AGREEMENT FOR SALE OF MEMBERSHIP INTERESTS
IN PNGI ▇▇▇▇▇▇▇ TOWN GAMING LIMITED LIABILITY COMPANY
Agreement made as of this 15th day of March, 2000, by, between and
among ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Jr., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Sun Mountain
Development, LLC and Timber Nation Limited Partnership (hereinafter individually
a "Seller" and collectively the "Sellers" or the "BDC Group"), Penn National
Gaming of West Virginia, Inc., a West Virginia Corporation, or its affiliated
designee, (hereinafter "Buyer"), PNGI ▇▇▇▇▇▇▇ Town Gaming Limited Liability
Company, a West Virginia limited liability company (hereinafter the "LLC"), Penn
National Gaming, Inc., a Pennsylvania Corporation (hereinafter "PENN"), and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (hereinafter "▇▇▇▇▇▇▇").
BACKGROUND:
The BDC Group owns eleven percent of the Membership Interests in the
LLC (collectively the "BDC Membership Interest" and individually a "Seller's
Membership Interest").
The BDC Group desires to sell to the Buyer the BDC Membership Interest
in accordance with that certain Second Amended and Restated Operating Agreement
of the LLC dated as of October 17, 1997 among the BDC Group, the Buyer, the LLC
and ▇▇▇▇▇▇ Development Company, Nominee (the "Operating Agreement").
The Buyer desires to purchase the BDC Membership Interest in accordance
with the Operating Agreement and the terms and provisions hereof.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF THE BDC MEMBERSHIP INTEREST
1.1 Basic Transaction. On and subject to the terms and conditions of
this Agreement, the Buyer agrees to and does hereby purchase from each Seller
and each Seller agrees to and does hereby sell to the Buyer his or its Seller's
Membership Interest, collectively constituting the entire BDC Membership
Interest, for the consideration specified in this Article I.
1.2 Purchase Price. The Buyer agrees to pay to the Sellers Six Million
($6,000,000) Dollars (the "Purchase Price") in immediately available funds at
the Closing (defined below) by wire transfer to such accounts and divided among
the Sellers as set forth on Schedule 1.2.1, Column A, attached hereto and made a
part hereof; provided that to the extent any amount is owed to ▇▇▇▇▇▇▇ by any
member of the BDC Group, the amount which is set forth on Schedule 1.2.1, Column
B for such member shall be deducted by the Buyer from the amount otherwise
payable to such member of the BDC Group and shall be paid by the Buyer to
▇▇▇▇▇▇▇ at the Closing. The net amount payable by the Buyer to each BDC Group
member and ▇▇▇▇▇▇▇ is set forth on Schedule 1.2.1, Column C.
1.3 The Closing. The closing of the transaction contemplated by this
Agreement (the "Closing") shall take place promptly after each party has
executed and delivered this Agreement to PENN, but not later than March 31,
2000, or such other date as the parties hereto may agree (the "Closing Date").
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION
2.1 Representations and Warranties of the Sellers.
Each Seller individually represents and warrants to the Buyer as
-----------------------------------------------
follows as of the date hereof and as of the Closing Date:
2.1.1 Authorization of Transaction. Each Seller has full power
and authority to execute and deliver this Agreement and to perform his or its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of each Seller enforceable in accordance with its terms. Each Seller
has given notice to, made any filing with or obtained any authorization, consent
or approval of any person, firm, corporation or federal or state government
agency, commissioner or board (hereinafter referred to as a "Person") necessary
in order to consummate the transaction contemplated by this Agreement.
2.1.2 Noncontravention. Neither the execution and the delivery
of this Agreement nor the consummation of the transaction contemplated hereby
will violate any judgment, order, decree, ruling, charge or other restriction of
any government, governmental agency or court to which any Seller is subject or
conflict with or result in a breach of or constitute a default under any
agreement, contract, instrument or other arrangement to which any Seller is a
party or by which any Seller or any of any Seller's assets is subject.
2.1.3 Broker's Fees. No Seller has any liability or obligation
to pay any fees or commission to any broker, finder or agent with respect to the
transaction contemplated by this Agreement for which the Buyer could become
liable or obligated.
2.1.4 Seller Membership Interest. Except for the promissory
notes executed by various BDC Group members to ▇▇▇▇▇▇▇, which promissory notes
will be extinguished at the Closing when the amounts set forth on Schedule
1.2.1., Column B are paid to ▇▇▇▇▇▇▇ pursuant to the provisions of Section 1.2
above, each Seller owns the Seller's Membership Interest of record and
beneficially and has not issued or granted to any person, firm or corporation
any present or future right to acquire the Seller's Membership Interest or any
interest therein except as set forth in the Operating Agreement. The Sellers'
Membership Interests in the aggregate constitute all the BDC Membership Interest
and individually the entire Membership Interest of each Seller in the LLC.
2.1.5No Seller Action. No Seller has taken any action or incurred any
liability on behalf of the LLC. ----------------
2.1.6 No Litigation. No action, suit or proceeding is pending
or threatened before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent consummation of the transactions contemplated by this Agreement, (ii)
cause the transaction contemplated by this Agreement to be rescinded following
the consummation, or (iii) adversely affect the right of the Buyer to own each
Seller's Membership Interest (and no such injunction, judgment, order, decree,
ruling or charge is in effect).
2.2 Representations and Warranties of the Buyer. The Buyer and PENN,
jointly and severally, represent and warrant to the Sellers as follows as of the
date of this Agreement and as of the Closing Date:
2.2.1 Organization and Qualification. PENN and each of its
subsidiaries is a corporation duly organized and existing in good standing under
the laws of the jurisdiction in which it is incorporated, and has the requisite
corporate power to own its properties and to carry on its business as now being
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conducted. PENN and each of its subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted by it makes such qualification
necessary and where the failure so to qualify would have a material adverse
effect. The Buyer is an indirect wholly owned subsidiary of PENN.
2.2.2 Authorization of Transaction. The Buyer and PENN have
full power and authority to execute and deliver this Agreement and to perform
their respective obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of the Buyer and PENN enforceable in accordance with
its terms and conditions. The Buyer and PENN have given notice to, made any
filing with or obtained any authorization, consent or approval of any Person
necessary in order to consummate the transaction contemplated by this Agreement.
2.2.3 Noncontravention. Neither the execution and the delivery
of this Agreement nor the consummation of the transaction contemplated hereby
will violate any judgment, order, decree, ruling, charge or other restriction of
any government, governmental agency or court to which Buyer or PENN is subject
or conflict with or result in a breach of or constitute a default under any
agreement, contract, instrument or other arrangement to which Buyer or PENN is a
party or by which Buyer or PENN or any of their assets is subject.
2.2.4 Broker's Fees. Neither Buyer nor PENN has any liability
or obligation to pay any fees or commission to any broker, finder or agent with
respect to the transaction contemplated by this Agreement for which any of the
Sellers could become liable or obligated.
2.2.5 Investment. The Buyer is not acquiring the BDC
Membership Interest with a view to or for sale in connection with any
distribution in violation of the Securities Act of 1933, as amended (the "Act").
2.2.6 Full Knowledge. The Buyer is the Managing Member of the
LLC and has full and complete knowledge of the assets, liabilities and financial
affairs of the LLC and is not relying on any representations or warranties of
the Sellers (other than those specifically set forth herein) in reaching its
decision to enter into this Agreement.
2.2.7 No Litigation. No action, suit or proceeding is pending
or threatened before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent consummation of the transactions contemplated by this Agreement, or (ii)
cause the transaction contemplated by this Agreement to be rescinded following
the consummation (and no such injunction, judgment, order, decree, ruling or
charge is in effect).
ARTICLE 3
TAX MATTERS
3.1 In the case of termination of the LLC for tax purposes (or if such
a termination is deemed to occur) at Closing, a final federal income tax return
shall be filed through March 15, 2000, the effective date hereof. Except in the
event of such termination (or a deemed termination), and in the case of state
and local income tax returns, if there is no deemed termination for such tax
purposes, with respect to each of the Sellers, the LLC shall close its books as
of the Closing Date to determine each Seller's distributive share of income,
gain, loss, deduction or credit for the year in which the Closing occurs.
ARTICLE 4
CONDITIONS TO CLOSING
4.1 The obligation of Sellers to close hereunder shall be subject to
the satisfaction or waiver of the following conditions on or prior to Closing:
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4.1.1 Buyer shall have delivered to the Sellers and ▇▇▇▇▇▇▇,
respectively, the cash amounts set forth on Schedule 1.2.1, Column C, by
wire transfer, as more fully set forth on Schedule 1.2.1.
4.1.2 Buyer and PENN shall have delivered to each Seller a release
substantially in the form of Exhibit "A", attached hereto and made a part
hereof.
4.1.3 Each of the representations and warranties of Buyer and
PENN contained in Section 2.2 above shall be true and correct on and as of the
Closing Date to the same extent as if made on and as of the Closing Date.
4.2 The obligation of Buyer and PENN to close hereunder shall be
subject to the satisfaction of the following conditions on or prior to Closing:
4.2.1 Each of the representations and warranties of each of
the Sellers contained in Section 2.1 above shall be true and correct on and as
of the Closing Date to the same extent as if made on and as of the Closing Date.
4.2.2 Each Seller shall have delivered to Buyer and PENN a
release substantially in the form of Exhibit "B" attached hereto and made a part
hereof.
ARTICLE 5
COVENANTS
5.1 Further Action. In case at any time, either before or after the
Closing, any further action is necessary to carry out the purpose of this
Agreement, each of the parties will take such further commercially reasonable
action, including the execution and delivery of such further instruments and
documents, as any other party may reasonably request.
5.2 Dissociation. Effective the close of business on March 15, 2000,
each Seller shall be deemed to have dissociated from the LLC in accordance with
Article 6 of the West Virginia Uniform Limited Liability Company Act and the
Operating Agreement and shall thereafter cease to have any rights or obligations
under the Operating Agreement or otherwise as a "Member" of the LLC.
5.3 Public Announcements. Neither party shall make any pubic
announcement of the existence of this Agreement or the transaction contemplated
hereby without the prior approval of the other parties; provided, however, if
PENN determines it is required to make a public announcement pursuant to the
Rules of the NASD or the Securities Exchange Act of 1934, as amended, it may do
so.
5.4 Delivery of K-1's. The Buyer and PENN agree to furnish all BDC
Group members with K-1's and any other necessary tax related information
pertaining to the LLC concerning the period through March 15, 2000, prior to the
filing of the LLC's federal tax return concerning such period; and each Seller
shall be given a reasonable opportunity to review and comment on such tax return
before it is filed by the LLC. Within 90 days after the Closing, the Buyer will
provide each Seller with a reasonable estimate of the information that will
appear in such Seller's final K-1 with respect to the LLC.
5.5. PENN Guaranty. PENN agrees that it shall cause the Buyer to
perform all of its agreements and obligations under this Agreement, including,
but not limited to, the purchase of the BDC Group Membership Interest pursuant
to this Agreement.
ARTICLE 6
REMEDIES FOR BREACH OF THIS AGREEMENT
6.1 Survival. All the representations, warranties and covenants of the
parties contained in this Agreement shall survive the Closing hereunder (even if
the other party knew or had reason to know of any misrepresentation or breach of
26
any warranty at the time of Closing) and continue in full force and effect for
the period of the applicable statute of limitations.
6.2 Indemnification Provision for the Benefit of the Buyer and PENN. In
the event any Seller breaches any of his or its representations, warranties and
covenants contained herein, provided that if the Buyer or PENN makes a written
claim for indemnification against such Seller within the applicable survival
period, then such Seller agrees to indemnify the Buyer from and against the
entirety of any adverse consequences the Buyer or PENN may suffer (including
legal fees and any adverse consequences the Buyer may suffer after the end of
the applicable survival period) resulting from, arising out of, or relating to
or caused by the breach.
6.3 Indemnification Provision for the Benefit of each Seller. In the
event Buyer or PENN breaches any of their representations, warranties and
covenants contained herein, provided that if one or more Sellers makes a written
claim for indemnification against Buyer or PENN within the applicable survival
period, then Buyer and PENN agree to indemnify such Sellers from and against the
entirety of any adverse consequences such Sellers may suffer (including legal
fees and any adverse consequences the Seller may suffer after the end of the
applicable survival period) resulting from, arising out of, or relating to or
caused by the breach.
ARTICLE 7
MISCELLANEOUS
7.1 No Third Party Beneficiaries. This Agreement shall not confer any
right or remedy upon any Persons other than the
----------------------------- parties hereto and their respective
successors and assigns.
7.2 Entire Agreement. This Agreement, including the documents and
schedules referred to herein, constitute the entire agreement among the parties
with respect to the subject matter hereof and supersedes any prior
understandings, agreements or representations by and among the parties, written
or oral, to the extent they relate in any way to the subject matter hereof.
7.3 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of his
rights, interests or obligations hereunder without the prior approval of the
other parties, which consent shall not be unreasonably withheld.
7.4 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
7.5 Headings. The Section headings contained are inserted for
convenience only and shall not affect in any way the -------- meaning or
interpretation of this Agreement.
7.6 Notices. All written notices, demands and requests of any kind
which a party may be required or may desire to serve upon the other parties
hereto in connection with this Agreement shall be delivered only by nationally
recognized overnight courier or other means of personal service which provides
written verification of receipt (a "Notice"). All Notices shall be addressed to
each of the parties to be served as follows:
Buyer or ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
Wyomissing Professional Center
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All Notices with a copy to:
27
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Mesirov ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Sellers and ▇▇▇▇▇▇▇ (all such Notices to go to one or more of the
following, as appropriate) -------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with an address at:
---------------
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Jr., with an address at:
----------------------
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with an address at:
-----------------
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Sun Mountain Development, LLC, with an address at:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Timber Nation Limited Partnership or ▇▇▇▇▇▇▇, with an address at:
c/o Falconwood Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
All Notices to Timber Nation Limited Partnership or ▇▇▇▇▇▇▇ with a
copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or other such address as shall be furnished in writing by any such party to the
other parties, and such Notice shall be effective and be deemed to have been
given as of the date actually received.
29
7.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to any choice or conflict of law provisions or rules that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
7.8 Amendment and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer, PENN, each Seller and ▇▇▇▇▇▇▇. No waiver by any party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or effect
in any way any right arising by virtue of any prior or subsequent such
occurrence.
7.9 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof, or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
7.10 Expenses. Each of the parties shall bear his or its own costs or
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transaction contemplated hereby.
7.11 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed to also refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
30
IN WITNESS WHEREOF the parties hereto have executed this Agreement on
the date first written above.
SELLERS:
__/s/▇▇▇▇▇▇ ▇▇▇▇ Boggs_______
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Jr.
Resident of Maryland
_/s/▇▇▇▇▇▇▇ ▇. Bryant____________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Resident of Virginia
___/s/▇▇▇▇▇ ▇. Reeder______________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Resident of Virginia
SUN MOUNTAIN DEVELOPMENT,
LLC, a Nevada Limited Liability Company
By:___/s/▇▇▇▇▇▇ ▇. Diddy____________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
TIMBER NATION LIMITED
PARTNERSHIP, a Delaware
Limited Partnership
By:__/s/▇▇▇▇▇ ▇. Jarecki_____________
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
General Partner
____/s/▇▇▇▇▇ ▇. Jarecki_____
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
31
BUYER
PENN NATIONAL GAMING OF
WEST VIRGINIA, INC.
By:_/s/▇▇▇▇▇▇▇ ▇. Bork______________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
PENN NATIONAL GAMING, INC.
By:__/s/▇▇▇▇▇ ▇. Carlino____________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman and
Chief Executive Officer
PNGI ▇▇▇▇▇▇▇ TOWN GAMING
LIMITED LIABILITY COMPANY
By: PENN NATIONAL GAMING OF
WEST VIRGINIA, INC.,
MANAGING MEMBER
By:__/s/▇▇▇▇▇▇▇ ▇. Bork_____________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
32
EXHIBIT A
RELEASE
For and in consideration of the execution and delivery of that certain
Agreement for Sale of Membership Interests dated as of March 15, 2000 (the "Sale
Agreement") among the undersigned and others pertaining to the purchase and sale
of Membership Interests in PNGI ▇▇▇▇▇▇▇ Town Gaming Limited Liability Company,
and a mutual Release being received by the undersigned on the date hereof, the
undersigned does hereby remise, release and forever discharge PNGI ▇▇▇▇▇▇▇ Town
Gaming Limited Liability Company, Penn National Gaming of West Virginia, Inc.
and Penn National Gaming, Inc. and their respective officers, directors,
employees, successors and assigns (collectively referred to herein as the
"Releasees") of and from any and all actions and causes of action, claims and
demands whatsoever, at law or in equity, whether known or unknown, which the
undersigned ever had, now has, or which the undersigned's heirs, executors,
administrators, successors or assigns, or any of them, hereinafter can, shall or
may have, for or by reason of or related to the undersigned having been a Member
of PNGI ▇▇▇▇▇▇▇ Town Gaming Limited Liability Company or any rights under the
Second Amended and Restated Operating Agreement of PNGI ▇▇▇▇▇▇▇ Town Gaming
Limited Liability Company dated as of October 17, 1997 or of the undersigned
arising out of or with respect to having been such a Member, from the beginning
of the world to the date hereof, provided, however, that notwithstanding
anything to the contrary in this Release, none of the undersigned are releasing
any of the Releasees from any of their duties or obligations under the Sale
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Release as of
this 15th day of March, 2000.
___/s/▇▇▇▇▇▇ ▇▇▇▇ Boggs_________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Jr.
____/s/▇▇▇▇▇▇▇ ▇. Bryant____
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____/s/▇▇▇▇▇ ▇. Reeder_____
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SUN MOUNTAIN DEVELOPMENT,
LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
TIMBER NATION LIMITED
PARTNERSHIP
By:_/s/▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ _
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
33
EXHIBIT B
RELEASE
For and in consideration of the execution and delivery of that certain
Agreement for Sale of Membership Interests dated as of March 15, 2000 (the "Sale
Agreement") among the undersigned and others pertaining to the purchase and sale
of Membership Interests in PNGI ▇▇▇▇▇▇▇ Town Gaming Limited Liability Company,
and a mutual Release being received by the undersigned on the date hereof, the
undersigned does hereby remise, release and forever discharge ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Jr., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Sun Mountain Development, LLC, Timber
Nation Limited Partnership and their respective officers, directors, members,
partners, employees, successors and assigns (collectively referred to herein as
the "Releasees") of and from any and all actions and causes of action, claims
and demands whatsoever, at law or in equity, whether known or unknown, which the
undersigned ever had, now has, or which the undersigned's successors or assigns,
or any of them, hereinafter can, shall or may have, for or by reason of or
related to the Releasees having been a Member of PNGI ▇▇▇▇▇▇▇ Town Gaming
Limited Liability Company, including, but not limited to, any obligations of the
Releasees with respect to any financial or other obligations of PNGI ▇▇▇▇▇▇▇
Town Gaming Limited Liability Company or any obligations of the Releasees under
that certain Second Amended and Restated Operating Agreement of PNGI ▇▇▇▇▇▇▇
Town Gaming Limited Liability Company dated October 17, 1997, as amended, or any
rights of the Releasees arising out of or with respect to having been such a
Member, from the beginning of the world to the date hereof, provided, however,
that notwithstanding anything to the contrary in this Release, none of the
undersigned are releasing any of the Releasees from any of their duties or
obligations under the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Release as of
this 15th day of March, 2000.
PENN NATIONAL GAMING OF WEST VIRGINIA, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
PENN NATIONAL GAMING, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman and
Chief Executive Officer
PNGI ▇▇▇▇▇▇▇ TOWN GAMING
LIMITED LIABILITY COMPANY
By: PENN NATIONAL GAMING OF
WEST VIRGINIA, INC.,
MANAGING MEMBER
By:__/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
34
SCHEDULE 1.2.1
I. Cash portion of the Purchase Price:
----------------------------------
Name Column A Column B Column C
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Jr. 2.9167% $1,590,909 $(149,888) 1,441,021
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1.25% 681,818 (41,816) 640,002
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2.9166% 1,590,909 (149,888) 1,441,021
Sun Mountain
Development, LLC 1.00% 545,455 (30,096) 515,359
Timber Nation Limited
Partnership 2.9167% 1,590,909 1,590,909
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 371,688 371,688
Total 11% 6,000,000 _____ 6,000,000
II. Wire Instructions
Phone Fax Wire Amount
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $1,441,021
First Union Natl Bank
ABA# ▇▇▇▇▇▇▇▇▇
A/C ▇▇▇▇▇▇ ▇▇▇▇▇
A/C# 100050335274
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $1,441,021
Chase Manhattan Bank
ABA # ▇▇▇▇▇▇▇▇▇
A/C ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A/C # 066-296390
35
Phone Fax Wire Amount
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $ 640,002
First Union Natl Bank
▇▇▇▇▇▇▇ Junction
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA# 051400549
A/C ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A/C# 1050000847115
▇▇▇▇▇ ▇▇▇▇▇
Sun Mountain Development ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $ 515,359
Western Security Bank
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
A/C Sun Mountain Development, LLC
A/C# 6376701021
Timber National LP ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $1,590,909
Chase Manhattan Bank
ABA# ▇▇▇▇▇▇▇▇▇
A/C ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
A/C# ▇▇▇-▇-▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ $ 371,688
Chase Manhattan Bank
ABA# ▇▇▇▇▇▇▇▇▇
A/C ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
A/C# ▇▇▇-▇-▇▇▇▇▇▇
36