PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
AUGUST 31, 1999,
BY AND BETWEEN
HBR REALTY COMPANY, INC.,
A NEVADA CORPORATION,
AND
IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION,
AN IOWA NONPROFIT CORPORATION
TABLE OF CONTENTS
PAGE
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1. AGREEMENT TO PURCHASE AND SELL. . . . . . . . . . . . . . . . . . . . .2
2. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.1 Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.2 Holdback . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.3 Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . .5
2.4 Allocation of the Consideration. . . . . . . . . . . . . . . . . .6
3. OPENING OF ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . .7
4. ACTIONS PENDING CLOSING . . . . . . . . . . . . . . . . . . . . . . . .7
4.1 Due Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . .7
4.2 Title Matters. . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.3 Conduct of Business Pending the Closing. . . . . . . . . . . . . 11
4.4 Transferred and Non-Transferred Employees. . . . . . . . . . . . 13
4.5 Notice of Change in Circumstances; Litigation. . . . . . . . . . 14
4.6 No Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7 Exclusive Negotiation. . . . . . . . . . . . . . . . . . . . . . 15
4.8 Intentionally Deleted. . . . . . . . . . . . . . . . . . . . . . 16
4.9 Xxxx-Xxxxx-Xxxxxx Act. . . . . . . . . . . . . . . . . . . . . . 16
4.10 Formation of Subsidiary . . . . . . . . . . . . . . . . . . . . 16
4.11 Reasonable Efforts. . . . . . . . . . . . . . . . . . . . . . . 17
5. DESCRIPTION OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . 18
5.1 The Improvements . . . . . . . . . . . . . . . . . . . . . . . . 18
5.2 The Real Property. . . . . . . . . . . . . . . . . . . . . . . . 18
5.3 The Personal Property. . . . . . . . . . . . . . . . . . . . . . 18
5.4 The Intangible Property. . . . . . . . . . . . . . . . . . . . . 19
5.5 Net Working Capital. . . . . . . . . . . . . . . . . . . . . . . 20
6. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 HBR's Closing Conditions . . . . . . . . . . . . . . . . . . . . 20
6.2 Failure of HBR's Closing Conditions. . . . . . . . . . . . . . . 24
6.3 IWRA's Closing Conditions. . . . . . . . . . . . . . . . . . . . 24
6.4 Failure of IWRA's Closing Conditions . . . . . . . . . . . . . . 26
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7. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.1 Termination Events . . . . . . . . . . . . . . . . . . . . . . . 26
7.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . 28
7.3 Payment of Costs Upon Termination. . . . . . . . . . . . . . . . 29
8. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.2 Deliveries by IWRA . . . . . . . . . . . . . . . . . . . . . . . 29
8.3 Deliveries by HBR. . . . . . . . . . . . . . . . . . . . . . . . 31
8.4 Actions by Escrow Agent. . . . . . . . . . . . . . . . . . . . . 32
8.5 Working Capital Adjustments to the Consideration . . . . . . . . 33
8.6 Post Closing Adjustments . . . . . . . . . . . . . . . . . . . . 33
8.7 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.8 Deliveries Outside of Escrow . . . . . . . . . . . . . . . . . . 35
9. IWRA'S REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 36
9.1 Existing Contracts . . . . . . . . . . . . . . . . . . . . . . . 36
9.2 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.4 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . 37
9.5 Condemnation; Special Assessments. . . . . . . . . . . . . . . . 37
9.6 Toxic or Hazardous Materials . . . . . . . . . . . . . . . . . . 37
9.7 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.8 No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.9 Due Organization; Consents . . . . . . . . . . . . . . . . . . . 39
9.10 IWRA's Authority; Validity of Agreements. . . . . . . . . . . . 40
9.11 Foreign Investment In Real Property Tax Act . . . . . . . . . . 40
9.12 Leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.13 Gaming Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.14 Year 2000 Compliance. . . . . . . . . . . . . . . . . . . . . . 41
9.15 Financial Statements. . . . . . . . . . . . . . . . . . . . . . 42
9.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.17 Nonprofit Status. . . . . . . . . . . . . . . . . . . . . . . . 43
9.18 Liens Against the Gaming License. . . . . . . . . . . . . . . . 44
9.19 Liens Against the Gaming Equipment. . . . . . . . . . . . . . . 44
9.20 Books and Records . . . . . . . . . . . . . . . . . . . . . . . 44
9.21 No Undisclosed Liabilities. . . . . . . . . . . . . . . . . . . 44
9.22 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . 44
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9.23 Disputed Accounts Payable . . . . . . . . . . . . . . . . . . . 44
9.24 Intellectual Property . . . . . . . . . . . . . . . . . . . . . 45
9.25 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.26 Compliance with the WARN Act. . . . . . . . . . . . . . . . . . 48
9.27 Utilities Access. . . . . . . . . . . . . . . . . . . . . . . . 48
9.28 Complimentaries . . . . . . . . . . . . . . . . . . . . . . . . 48
9.29 Customer Database . . . . . . . . . . . . . . . . . . . . . . . 48
9.30 Material Misstatements or Omissions . . . . . . . . . . . . . . 49
9.31 Ad Valorem Taxes. . . . . . . . . . . . . . . . . . . . . . . . 49
9.32 Mechanic's Liens. . . . . . . . . . . . . . . . . . . . . . . . 49
9.33 Liens on Personal Property and Intangible Property. . . . . . . 49
9.34 Condition of Property . . . . . . . . . . . . . . . . . . . . . 49
9.35 Stipulated Agreement. . . . . . . . . . . . . . . . . . . . . . 49
10. HBR'S REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . 50
10.1 No Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.2 Due Organization; Consents. . . . . . . . . . . . . . . . . . . 50
10.3 HBR's Authority; Validity of Agreements . . . . . . . . . . . . 51
10.4 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.5 Current Assets. . . . . . . . . . . . . . . . . . . . . . . . . 51
11. ADDITIONAL COVENANTS OF IWRA. . . . . . . . . . . . . . . . . . . . . 51
11.1 Gaming License and Status . . . . . . . . . . . . . . . . . . . 51
11.2 IWRA's Nonprofit Status . . . . . . . . . . . . . . . . . . . . 52
11.3 Promotion of Gaming . . . . . . . . . . . . . . . . . . . . . . 52
11.4 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.5 Governmental Authorities. . . . . . . . . . . . . . . . . . . . 53
11.6 Account for Indemnity Claims. . . . . . . . . . . . . . . . . . 53
12. ADDITIONAL COVENANTS OF HBR.
12.1 Calculation of the Cap Payment. . . . . . . . . . . . . . . . . 53
12.2 Delivery of the Cap Payment . . . . . . . . . . . . . . . . . . 53
12.3 Certain Rights Assignable . . . . . . . . . . . . . . . . . . . 55
12.4 Equitable Adjustment. . . . . . . . . . . . . . . . . . . . . . 56
12.5 Governmental Authorities. . . . . . . . . . . . . . . . . . . . 56
12.6 Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13. RISK OF LOSS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13.1 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . 56
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13.2 Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14.1 Default by HBR . . . . . . . . . . . . . . . . . . . . . . . . 57
14.2 Default by IWRA. . . . . . . . . . . . . . . . . . . . . . . . 58
15. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
15.1 IWRA's Broker. . . . . . . . . . . . . . . . . . . . . . . . . 58
15.2 HBR's Broker . . . . . . . . . . . . . . . . . . . . . . . . . 58
16. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
16.1 HBR's Indemnification. . . . . . . . . . . . . . . . . . . . . 58
16.2 IWRA's Indemnification . . . . . . . . . . . . . . . . . . . . 59
16.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 59
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . 59
17.1 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . 59
17.2 Public Announcements . . . . . . . . . . . . . . . . . . . . . 59
18. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 60
18.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 60
18.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 60
18.3 Modification; Waiver . . . . . . . . . . . . . . . . . . . . . 60
18.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
18.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.6 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
18.9 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . 64
18.10 Successors and Assigns; Third Parties. . . . . . . . . . . . . 65
18.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 65
18.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
18.13 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . 65
18.14 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 65
18.15 Number and Gender. . . . . . . . . . . . . . . . . . . . . . . 66
18.16 Construction . . . . . . . . . . . . . . . . . . . . . . . . . 66
18.17 Post Closing Access to Records . . . . . . . . . . . . . . . . 66
18.18 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . 66
18.19 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 66
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18.20 Business Days. . . . . . . . . . . . . . . . . . . . . . . . . 66
18.21 Amendment or Supplement. . . . . . . . . . . . . . . . . . . . 66
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this "AGREEMENT") is made and entered into as of August 31, 1999 (the
"EXECUTION DATE"), by and between HBR REALTY COMPANY, INC., a Nevada
corporation ("HBR"), and IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION,
an Iowa nonprofit corporation ("IWRA"), for the purpose of setting forth the
agreement of the parties and of instructing FIDELITY NATIONAL TITLE INSURANCE
COMPANY ("ESCROW AGENT") with respect to the transactions contemplated by
this Agreement.
R E C I T A L S
A. IWRA is the owner of (i) an undivided fee simple interest in
that certain parcel of real property located in the City of Council Bluffs,
County of Pottawattamie, State of Iowa, as more particularly described on
EXHIBIT "A" attached hereto (the "LAND PARCEL"), together with the
"Improvements" (as hereinafter defined) located thereon, comprised of a
casino and a dog racing track commonly known as "Bluffs Run Casino" (the
"GAMING FACILITY"), and (ii) a leasehold interest in certain parcels of real
property located in the City of Council Bluffs, County of Pottawattamie,
State of Iowa, and in the City of Omaha, County of Xxxxxxx, State of
Nebraska, each as more particularly described on EXHIBIT "B" attached hereto
(collectively, the "LEASED PROPERTIES").
B. The Land Parcel, together with the Leased Properties, the
Improvements, the balance of the "Real Property," the "Personal Property,"
the "Intangible Property," and the "Net Working Capital" (each as hereinafter
defined), are sometimes collectively referred to herein as the "PROPERTY."
C. Subject to the receipt of any and all permits, consents and
approvals necessary from any "Governmental Authority" (as hereinafter
defined), including, without limitation, the Iowa Racing and Gaming
Commission (the "GAMING COMMISSION"), the Administrator of the Gaming
Commission, the U.S. Federal Trade Commission and the Antitrust Division of
the U.S. Department of Justice and as further set forth in Section 7.1.4
hereof, IWRA desires to sell and HBR desires to purchase the Property upon
and subject to the terms and conditions set forth in this Agreement.
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A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, HBR and IWRA hereby
agree, and instruct Escrow Agent, as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement, IWRA
agrees to sell, transfer and convey to HBR, and HBR agrees to acquire and
purchase from IWRA, the Property, upon and subject to the terms and
conditions set forth herein.
2. CONSIDERATION.
2.1 CONSIDERATION. The consideration for the Property (the
"CONSIDERATION") shall be (i) One Hundred Thirty Nine Million Six Hundred
Thousand and No/100 Dollars ($139,600,000.00) plus (ii) an amount equal to the
present value of certain projected tax savings (the "INITIAL TAX SAVINGS
PAYMENT") to be realized by HBR calculated as of the "Closing Date" (as
hereinafter defined) in accordance with SCHEDULE 2.1 attached hereto.
2.2 HOLDBACK. At "Closing" (as hereinafter defined), Forty Five
Million and No/100 Dollars ($45,000,000.00), without interest (the "HOLDBACK"),
of the Consideration shall not be paid by HBR but shall become payable only in
accordance with the terms and conditions set forth below:
2.2.1 REFERENDUM APPROVAL. On or before the "Referendum
Payment Date" (as hereinafter defined), HBR shall pay to IWRA, by wire
transfer of immediately available funds (x) the Holdback, plus (y) Five
Million and No/100 Dollars ($5,000,000.00), without interest (the "BONUS"),
unless either (i) the proposition to approve gambling games at pari-mutuel
racetrack enclosures, submitted to the county electorate at the 2002 general
election pursuant to the requirements of Iowa Code Section 99F.7, subsection
10, subparagraph "d" as in effect on the date hereof (the "REFERENDUM"),
shall not have been approved, or (ii) as of the Referendum Payment Date, a
slots casino cannot continue to be operated at the Gaming Facility under
then-applicable law, PROVIDED, that if a "Referendum Challenge" (as
hereinafter defined) shall have been brought prior to the Referendum Payment
Date, then,
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subject to any payment obligation under Sections 2.2.2 and 2.2.3, HBR shall
not be obligated to pay the Holdback or the Bonus. Passage of the Referendum
is hereinafter referred to as "REFERENDUM APPROVAL," the date the results of
the Referendum are certified to the County Auditor of Pottawattamie County,
Iowa is hereinafter referred to as the "REFERENDUM DATE," and the fifth (5th)
"Business Day" (as hereinafter defined) after the Referendum Date is
hereinafter referred to as the "REFERENDUM PAYMENT DATE."
2.2.2 FAILURE OF REFERENDUM APPROVAL WITHOUT BUSINESS
INTERRUPTION. If Referendum Approval is not obtained or if HBR is not
required to pay the Holdback and the Bonus due to the existence of a
Referendum Challenge, but the operation of a slots casino at the Gaming
Facility can continue through December 31, 2003 without being interrupted as
a result of the Referendum or any Referendum Challenge (other than one or
more interruptions totaling an aggregate of no more than four weeks during
such period), then HBR shall have no obligation to pay the Holdback or the
Bonus. In such circumstance, HBR shall be obligated to pay to IWRA, by wire
transfer in immediately available funds, an amount equal to Ten Million and
No/100 Dollars ($10,000,000.00), without interest (the "ANNIVERSARY
PAYMENT"), on December 31, 2003. If the Anniversary Payment has been earned,
then on the last day of each complete calendar quarter after December 31,
2003 during which HBR can continue to operate a slots casino at the Gaming
Facility, HBR shall be obligated to pay to IWRA by wire transfer of
immediately available funds, a payment of Two Million Five Hundred Thousand
and No/100 Dollars ($2,500,000.00), without interest (the "QUARTERLY
PAYMENTS"), PROVIDED, that HBR's obligations to make Quarterly Payments shall
terminate if such operations are interrupted after December 31, 2003 as a
result of the Referendum or a Referendum Challenge, such termination to be
effective for the quarter in which the interruption occurred and all
subsequent quarters. The maximum number of Quarterly Payments shall be as
follows: (a) if the Referendum Approval shall not have been obtained, eight
(8); or (b) if the Referendum Approval was obtained, but HBR is not required
to pay the Holdback and the Bonus because of the existence of a Referendum
Challenge, sixteen (16), each of (a) and (b) shall be reduced as necessary to
reflect any payments made pursuant to Section 2.2.3 hereof.
2.2.3 REFERENDUM CHALLENGES. If any judicial, administrative
or other legal proceeding which seeks to void, delay, challenge or otherwise
contest the results of a Referendum Approval (each, a "REFERENDUM CHALLENGE")
is brought following Referendum Approval, but prior to the Referendum Payment
Date, then, subject to the provisions of Section 2.2.2, HBR shall not be
obligated to pay the
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Holdback or the Bonus unless and until (i) all such Referendum Challenges
have been dismissed or otherwise denied to the reasonable satisfaction of
HBR, or (ii) not earlier than the 180th day following the Referendum Date,
IWRA shall have provided HBR with an opinion of counsel, reasonably
acceptable to HBR, that such Referendum Challenge is substantially without
merit and likely to fail. Subject to the provisions of this section, if
condition (i) or (ii) above is satisfied, HBR shall pay to IWRA, by wire
transfer of immediately available funds, the Holdback and the Bonus (minus
any amounts paid pursuant to Section 2.2.2 hereof, and plus interest at the
rate of 6% per annum from the Referendum Date to the date such amounts were
actually paid), not later than five (5) Business Days following the
satisfaction of such condition (the "CHALLENGE PAYMENT DATE"). If, prior to
December 31, 2005, HBR makes any payment pursuant to Sections 2.2.1, 2.2.2 or
2.2.3(ii), and as a result of any Referendum Challenge brought prior to, or
within 180 days after, the Referendum Date, HBR cannot continue to operate a
slots casino at the Gaming Facility, IWRA shall reimburse HBR for all amounts
paid pursuant to Sections 2.2.1, 2.2.2 or 2.2.3 hereof, less any amounts that
would have been paid pursuant to Section 2.2.2 if the Referendum Approval had
not been obtained. Any reimbursement shall include interest at the rate of
6% per annum, from the date HBR made such reimbursable payment to IWRA to the
date IWRA makes such reimbursement to HBR. Prior to the Challenge Payment
Date, either party may initiate arbitration proceedings under Section 18.9
hereunder to challenge the other party's determination that condition (i) or
(ii) is or is not satisfied. The prevailing party in such arbitration shall
be entitled to payment of reasonable costs and attorney's fees incurred in
connection with such arbitration, and all payment obligations of HBR shall be
suspended during the pendency of any such arbitration. If the arbitrators
determine that any suspended payment was due to IWRA, HBR shall pay such
amount, plus interest at the rate of 8% per annum, from the date such payment
was determined to have been due until the date such amount is paid.
2.2.4 RIGHT OF OFFSET. If, on any date that payment is due
to IWRA under this Section 2.2, IWRA owes HBR monies pursuant to the terms of
this Agreement (other than Section 2.2.1), the Lease by and between HBR and
IWRA, attached hereto as EXHIBIT "C" (the "LEASE"), or the Management
Agreement by and between IWRA and Harveys BR Management Company, Inc., a
Nevada corporation ("MANAGER"), attached hereto as EXHIBIT "D" (the
"MANAGEMENT AGREEMENT"), then HBR shall be entitled to offset such amounts
against payments due to IWRA as follows: (i) if such amounts are owed to HBR
pursuant to Section 12.2 hereof, then HBR may offset such amounts from any
payment owed to IWRA, and (ii) if such amounts are owed to HBR pursuant to
any other section of this Agreement, the Lease
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or the Management Agreement such amount shall have been reduced to a final
judgment, not subject to appeal, at which time HBR may offset such amounts
from any payment owed to IWRA. In the event that HBR intends to offset any
amounts, it shall notify IWRA at least five (5) Business Days prior to such
offset, PROVIDED, that the failure to make such notice shall not adversely
affect HBR's right to make such offset. If IWRA disputes any offset, it may
initiate arbitration proceedings under Section 18.9 hereunder to challenge
any such offset within thirty (30) Business Days of the date IWRA receives
notice of such offset from HBR. The prevailing party in such arbitration
shall be entitled to payment of reasonable costs and attorney's fees incurred
in connection with such arbitration. If the arbitrators determine that any
amounts offset by HBR should have been paid to IWRA, HBR shall pay such
amounts, plus interest at the rate of 6% per annum, from the date such
payments were determined to have been due until the date such amounts are
paid.
2.2.5 CERTAIN RIGHTS ASSIGNABLE. Notwithstanding the
provisions of Section 18.6.1 of this Agreement, IWRA may assign its rights to
payment of any amounts payable pursuant to this Section 2.2 to Iowa West
Foundation, an Iowa nonprofit corporation (the "FOUNDATION"), PROVIDED, that
the Foundation shall have executed an agreement to bound by the terms of this
Section 2.2. Upon receipt of notice from IWRA that such assignment has
occurred, HBR shall make such payments directly to the Foundation in
accordance with this Section 2.2.
2.3 LETTER OF CREDIT. HBR's obligations pursuant to Section 2.2.1
and payments due in the event of an unsuccessful Referendum Challenge under
Section 2.2.3 hereof shall be supported by an irrevocable letter of credit on
the terms set forth on Schedule 2.3 attached hereto (the "LETTER OF CREDIT"),
which Letter of Credit shall be delivered on the Closing Date pursuant to
Section 8.3.4 hereof. On the Closing Date, Escrow Agent shall deliver the
Letter of Credit to First National Bank of Omaha ("L/C ESCROW AGENT") to be
held pursuant to the terms and conditions below. The reasonable fees and
expenses of the L/C Escrow Agent shall be paid by HBR.
2.3.1 DRAWS ON THE LETTER OF CREDIT. If HBR is obligated to
pay the Holdback and the Bonus to IWRA in full pursuant to Sections 2.2.1 or
2.2.3, but HBR fails to make such payment when due, then IWRA shall send HBR
a notice of such failure. If HBR does not pay the Holdback to IWRA within
two (2) Business Days of HBR's receipt of IWRA's notice, then, subject to
Section 2.3.3 below, IWRA and HBR shall each deliver a notice executed by
such party which instructs L/C Escrow Agent to draw on the amount of the
Letter of Credit to the extent of any shortfall in the payment of the
Holdback. Notwithstanding anything to the contrary
5
herein, subject to the terms of Section 2.3.2 below, L/C Escrow Agent shall
draw on the entire stated amount of the Letter of Credit on the third (3rd)
Business Day prior to the expiry date thereof, unless on or before such date,
HBR delivers to L/C Escrow Agent (i) an extension of such expiring Letter of
Credit, (ii) a replacement letter of credit substantially on the same terms
as the Letter of Credit, or (iii) an amount of cash equal to the stated
amount of the expiring Letter of Credit.
2.3.2 CANCELLATION OF THE LETTER OF CREDIT. Within three (3)
Business Days of the occurrence of either (i) the Referendum Date, if
Referendum Approval is not obtained; or (ii) the later of HBR's payment of
the Holdback and the Bonus as set forth in Sections 2.2.1 or 2.2.3, if the
Referendum Approval is obtained; IWRA and HBR shall deliver a notice
executed by each party which instructs L/C Escrow Agent to cancel the Letter
of Credit. If a Referendum Challenge is pending and HBR makes any payment to
IWRA under Section 2.2.2 hereof, IWRA and HBR shall deliver a notice executed
by each party which instructs L/C Escrow Agent to reduce the amount of the
Letter of Credit accordingly.
2.3.3 DISPUTES. In the event that HBR and IWRA have any
dispute regarding any matter governed by this Section 2.3, then they shall
submit their dispute to binding arbitration in accordance with Section 18.9
hereof. Notwithstanding anything to the contrary herein, in the event that
there is a dispute between the parties as to any amount to be disbursed from
L/C Escrow Agent to IWRA, then (i) with respect to the amounts in dispute,
L/C Escrow Agent shall hold such amount or the Letter of Credit supporting
such amount in escrow and shall not disburse any disputed amounts until the
dispute is resolved pursuant to a written agreement between HBR and IWRA or a
written determination of the arbitrator pursuant to Section 18.9 hereof and
(ii) with respect to amounts not in dispute, HBR and IWRA shall instruct L/C
Escrow Agent to disburse the undisputed amounts to IWRA in accordance with
the terms of this Agreement. Upon the parties receipt of an executed decision
of an arbitrator with respect to any amount held by L/C Escrow Agent, HBR and
IWRA shall deliver instructions to L/C Escrow Agent to disburse such amounts
in accordance with such arbitrator's decision.
2.4 ALLOCATION OF THE CONSIDERATION. The Consideration (less any
payments required under Section 2.2 hereof) shall be allocated among the
Property in accordance with section 1060 of the Internal Revenue Code of
1986, as amended (the "CODE"), and the Treasury regulations promulgated
thereunder, and such allocations shall be reflected on EXHIBIT "E" attached
hereto. HBR and IWRA agree to file their respective United States federal
and state income "Tax Returns" (as defined below),
6
including Internal Revenue Service Form 8594, in a manner consistent with
EXHIBIT "E" as such exhibit may be adjusted, from time to time. Prior to the
Closing, EXHIBIT "E" shall be prepared by HBR and be reasonably acceptable to
IWRA. Any additional Consideration paid pursuant to Section 2.2 hereof shall
be allocated pursuant to section 1060 of the Code and in a manner consistent
with the allocations as set forth on EXHIBIT "E".
3. OPENING OF ESCROW.
On or before the third (3rd) Business Day after the Execution Date,
HBR and IWRA shall cause an escrow ("ESCROW") to be opened with Escrow Agent
by delivery to Escrow Agent of a fully executed copy of this Agreement. This
Agreement shall constitute escrow instructions to Escrow Agent as well as the
agreement of the parties. Escrow Agent is hereby appointed and designated to
act as Escrow Agent and instructed to deliver, pursuant to the terms of this
Agreement, the documents and funds to be deposited into Escrow as herein
provided. The parties hereto shall execute such additional escrow
instructions (not inconsistent with this Agreement as determined by counsel
for HBR and IWRA) as Escrow Agent shall deem reasonably necessary for its
protection, including Escrow Agent's general provisions (as may be modified
by HBR, IWRA and Escrow Agent). In the event of any inconsistency between
the provisions of this Agreement and such additional escrow instructions, the
provisions of this Agreement shall govern.
4. ACTIONS PENDING CLOSING.
4.1 DUE DILIGENCE.
4.1.1 PROPERTY DOCUMENTS. Prior to the Execution Date, at
IWRA's sole cost and expense, IWRA has delivered to HBR, for its review and
copying, true, correct and complete copies of all contracts, organizational
and corporate documents, collective bargaining agreements, employment
documents and records, correspondence, books, ledgers, files and any and all
other materials relating to the Property (other than business plans,
marketing plans, and other proprietary documents which shall be delivered to
HBR at Closing), including, without limitation, all tax filings (including,
without limitation, those related to IWRA's charitable or nonprofit status),
audited and unaudited financial statements for the past three (3) years,
incorporation documents, corporate by-laws and minutes, standard operating
procedure manuals or guidelines, business plans, documentation regarding
human resource programs or policies, personnel records, marketing plans,
as-built plans and
7
specifications, income and expense records, leases, engineering tests, soil
tests, hazardous materials reports, termite reports, environmental reports
and assessments, "Service Contracts" (as hereinafter defined), structural and
mechanical reports, maps (including, without limitation, topographical maps),
plans, agreements, governmental permits and approvals, licenses, appraisals,
abstracts of title, title opinion letters, title policies, surveys,
construction warranties, land studies, a description of existing and known
proposed local improvements affecting the Property (including, without
limitation, assessment levels), a certificate from the appropriate
governmental authorities confirming the zoning, building and platting status
of the Property, all correspondence with all Federal, state or local
government or any court, administrative, or regulatory agency or commission
or other governmental entity or agency or quasi-governmental entity or agency
of any nature, domestic or foreign, including, without limitation, the Gaming
Commission, the Administrator of the Gaming Commission, the U.S. Federal
Trade Commission and the Antitrust Division of the U.S. Department of Justice
(collectively, the "GOVERNMENTAL AUTHORITIES" and each, a "GOVERNMENTAL
AUTHORITY") regarding the Property, all property tax statements and assessed
value notices, and all insurance policies (collectively, the "PROPERTY
DOCUMENTS"), to the extent that the same were in its possession and IWRA has
used its best efforts to cause its agents, auditors or independent
contractors to deliver the same to HBR after a diligent review and
examination of their respective files and records.
4.1.2 HBR'S DILIGENCE TESTS. At all reasonable times during
the period commencing on the Execution Date and ending on the Closing Date or
the earlier termination of this Agreement, HBR, its agents and
representatives shall be entitled to: (a) enter onto the Property at all
reasonable times so long as reasonable advance notice has been given to IWRA,
to perform any inspections, investigations, studies and tests of the
Property, including, without limitation, physical, structural, mechanical,
architectural, engineering, soils, geotechnical and environmental tests, that
HBR deems reasonable; (b) cause an environmental assessment of the Property
to be performed, upon reasonable notice to IWRA; (c) review all Property
Documents and examine and copy any and all books and records maintained by
IWRA or its agents (including, without limitation, all documents relating to
utilities, zoning and the access, subdivision and appraisal of, and all legal
requirements affecting, the Property); and (d) investigate such other matters
as HBR may reasonably desire. The parties shall use commercially reasonable
efforts to obtain an environmental report and assessment reasonably
acceptable to HBR (the "PHASE I REPORT") as soon as reasonably practicable.
HBR shall indemnify, protect, defend and hold harmless IWRA from all claims,
liens and encumbrances (including, without limitation, any
8
claim for a mechanic's lien or materialman's lien), causes of action, costs,
losses, damages and reasonable attorneys' fees incurred by IWRA in connection
with or arising out of any inspections or tests carried on, by or on behalf
of HBR pursuant to this Section 4.1.2; PROVIDED, HOWEVER, that HBR shall not
indemnify IWRA for any claim, loss or cause of action caused by IWRA's
negligence or willful misconduct or any physical condition existing on the
Property prior to HBR's or its agent's entry thereon. HBR's indemnity
obligation pursuant to the immediately preceding sentence shall survive the
Closing or earlier termination of this Agreement.
4.2 TITLE MATTERS.
4.2.1 ABSTRACT OF TITLE. IWRA has caused a continuation of
the abstract of title for the Real Property (the "ABSTRACT OF TITLE") to be
completed and delivered to the Law Offices of Xxxxxx X. Xxxxxxxx, Attorney at
Law, HBR's Iowa local counsel ("HBR'S LOCAL COUNSEL"). HBR's Local Counsel
has examined and prepared an attorney's title opinion (the "TITLE OPINION")
addressed to Fidelity National Title Insurance Company (in such capacity,
"TITLE COMPANY"). The Abstract of Title shall become the property of HBR on
the Closing Date, and shall show marketable title, subject to "Permitted
Exceptions" (as defined below) in conformity with this Agreement, the land
title law of the State of Iowa, and the Iowa Title Standards of the Iowa
State Bar Association.
4.2.2 DELIVERIES BY IWRA. IWRA has caused: (a) Title
Company to issue and deliver to HBR a current preliminary report for an
American Land Title Association (ALTA) extended coverage owner's policy of
title insurance for the Property (the "PTR"); (b) Title Company to deliver to
HBR legible copies of all documents referenced as exceptions in the PTR
(collectively, the "UNDERLYING DOCUMENTS"); (c) a search for filings (at the
State and County in which the Property is located and at the State of
formation of IWRA) pursuant to the Uniform Commercial Code with regard to the
Personal Property (the "UCC SEARCH") to be performed and delivered to HBR;
and (d) a surveyor licensed in the State of Iowa to prepare and deliver to
HBR and Title Company a current as-built survey for the Property (the
"SURVEY"), in a form reasonably satisfactory to HBR and Title Company, made
in accordance with ALTA / ACSM minimum technical standards and the laws of
the State of Iowa, certified to HBR (and its nominees), Title Company, IWRA
and, at the request and expense of HBR, to any other person, limited
partnership, limited liability company, corporation, joint venture, or any
other entity (collectively, "PERSON") as HBR may reasonably request, showing
the entire Real Property, all adjoining streets and roads (including, without
limitation, the points of ingress and
9
egress thereto), the exact location by metes and bounds and the exact
dimensions of the Land Parcel and any buildings and structures located
thereon, a legal description of the Land Parcel, the flood zone designation
of the Real Property, the exact location of any Improvements, set back lines,
protrusions, encroachments, parking spaces and easements on and upon the Real
Property, together with all rights-of-way and other matters relating to the
Real Property. The PTR, the Underlying Documents, the UCC Search and the
Survey shall be collectively referred to herein as the "TITLE DOCUMENTS."
Notwithstanding the foregoing, the parties hereby acknowledge that, as of the
Execution Date, a final Survey has not yet been delivered by IWRA to HBR for
approval.
4.2.3 HBR'S REVIEW OF TITLE. HBR shall have until the
fifteenth (15th) day following the receipt of all Title Documents and the
Phase I Report (the "DUE DILIGENCE TERMINATION DATE") to notify IWRA in
writing of any objection that HBR may have to any matters reported or shown
in the Title Documents (provided, however, that if any updates to the Title
Documents are received by HBR, HBR shall have an additional five (5) Business
Days, regardless of the passage of the Due Diligence Termination Date,
following HBR's receipt of such update and legible copies of all documents
referenced therein, to notify IWRA of objections to items shown on any such
update that were not disclosed on the previously delivered Title Documents).
Matters reported in or shown by the Title Documents (or any updates thereof)
and not timely objected to by HBR as provided above shall be deemed to be
"PERMITTED EXCEPTIONS." As a condition to Closing, IWRA shall take all
reasonable action necessary to remove from title to the Property any
exceptions and matters so objected to by HBR, or, in the alternative, IWRA
shall obtain for HBR title insurance from Title Company insuring over such
exceptions or matters, such insurance to be in form and substance
satisfactory to HBR. If, prior to the Closing, IWRA is unable despite such
reasonable actions to remove or satisfactorily insure over any exceptions or
matters objected to by HBR, then HBR may, as its sole and exclusive remedy
therefor, either: (a) terminate this Agreement (in which case the parties
shall equally share the cancellation charges, if any, of Escrow Agent and
Title Company, and neither party shall thereafter have any rights or
obligations to the others hereunder, other than pursuant to Sections 4.1.2
and 8.7 and Article 15 hereof, which provisions shall survive the termination
of this Agreement); or (b) proceed to a timely Closing whereupon such
objected to exceptions or matters shall be deemed to be Permitted Exceptions.
Notwithstanding anything to the contrary contained herein, IWRA shall
discharge and remove any and all liens affecting the Property that secure an
obligation to pay money (other than installments of real estate taxes not
xxxxx-
10
quent as of the Closing) (collectively, the "LIENS") and, even though HBR
does not expressly disapprove such Liens, such Liens shall not be Permitted
Exceptions.
4.2.4 CONDITION OF TITLE AT CLOSING. Upon the Closing, IWRA
shall transfer, contribute and convey to HBR fee simple title to the Real
Property by a duly executed and acknowledged general warranty deed in the
form of EXHIBIT "G" attached hereto (the "DEED"), subject only to the
Permitted Exceptions. Prior to the Closing, IWRA shall not take any action
or commit or suffer any acts that would give rise to a variance from the
current legal description of the Real Property, or cause the creation of any
exception or encumbrance against or respecting the Real Property without the
prior written consent of HBR, which consent may be withheld in HBR's sole and
absolute discretion. IWRA shall not directly or indirectly sell, contribute,
assign or create any right, title or interest whatsoever in or to the
Property, the Gaming License, or the Gaming Equipment, or create or permit to
exist thereon any lien, charge or encumbrance other than the applicable
Permitted Exceptions, or enter into any agreement to do any of the foregoing,
without the prior written consent of HBR (which consent may be granted or
withheld in HBR's sole and absolute discretion). Nothing in this Section
4.2.4 shall preclude HBR from disapproving title matters in accordance with
the provisions of Section 4.2.3 hereof.
4.3 CONDUCT OF BUSINESS PENDING THE CLOSING. From the Execution
Date through the Closing Date, IWRA shall conduct its operations and business
with respect to the Property in the ordinary and usual course of business,
consistent with all laws, rules, regulations, ordinances, or court or
administrative orders or decisions of all applicable "Governmental
Authorities" (collectively, "LAWS") and past practice. In furtherance of the
immediately preceding sentence, IWRA shall use its best efforts to cause AIM,
Inc., an Iowa corporation ("CURRENT MANAGER"), its current property manager,
and all of IWRA's and/or Current Manager's employees to operate the Property
in the ordinary course of business, consistent with all Laws and past
practice. Current Manager shall be deemed to have reviewed this Agreement.
4.3.1 Without limiting the generality of the foregoing, and
except as otherwise expressly permitted by this Agreement, prior to the
Closing Date, without the prior written consent of HBR, IWRA shall not:
(i) mortgage or otherwise encumber or subject to any lien any
of the Property;
(ii) sell, transfer or assign any of the Property;
11
(iii) enter into any contract with respect to the Property
which (a) is not terminable within ninety (90) days, or (b) requires the
approval of the Gaming Commission, unless with respect to (a) and (b), a
proposed copy of the contract, including, without limitation, any agreements
relating to greyhound purses, has been delivered to HBR and HBR has not
disapproved such contract within five (5) Business Days of its receipt;
(iv) take any actions with respect to the development of the
Property, including, without limitation, applying for, pursuing, accepting or
obtaining any permits, approvals or other development entitlements from any
Governmental Authority or finalizing or entering into any agreements relating
thereto without the prior written consent of HBR (which consent may be
granted or withheld in HBR's sole and absolute discretion);
(v) except as may be required by a change in Law or in
generally accepting accounting principles, change any of the accounting
practices, principles, or procedures employed as of the Execution Date;
(vi) unless required by a change in Law, close, terminate or
otherwise eliminate any activity historically conducted on the Property;
(vii) unless required by a change in Law, make any material
change to any practice or procedure relating to the employees of IWRA,
including, without limitation, any human resources procedures, compensation
and benefit programs, and salary or hourly wage amounts, except ordinary
merit pool increases or increases due to tenure in accordance with past
practice provided that, with respect to any employee, such increase shall not
exceed five percent (5%) of such employee's salary or hourly rate prior to
such increase without the prior written consent of HBR (which consent may be
granted or withheld in HBR's sole and absolute discretion);
(viii) take or agree to take in writing or otherwise, any
actions prohibited in subsections (i) through (vii) above.
12
4.4 TRANSFERRED AND NON-TRANSFERRED EMPLOYEES.
4.4.1 HBR will extend offers of continued employment to all the
employees of IWRA working at the Property as of or immediately prior to the
Closing Date for employment beginning immediately after the Closing Date (other
than the general manager (the "GENERAL MANAGER") of the Property). Employees
who accept such employment with HBR are herein collectively referred to as the
"TRANSFERRED EMPLOYEES." For the purposes of compensation, leave and benefit
programs only, including tenure provisions and vesting rights, each Transferred
Employee shall retain as his or her hire date, the most recent date he or she
was hired by IWRA. The terms and conditions of employment of such Transferred
Employees, including benefits, shall be at least equal to those provided to
existing employees of the entity affiliated with HBR that owns and operates the
riverboat casino located in Council Bluffs, Iowa, commonly known as Xxxxxx'x
Casino Hotel. Each of the parties agrees to cooperate with each other in order
to accomplish an orderly transfer of the Transferred Employees. IWRA hereby
agrees to employ the General Manager upon such terms as HBR and the General
Manager shall agree to assist in such transition (the "TRANSITION EMPLOYMENT
PERIOD"). HBR shall be responsible for the General Manager's compensation and
benefits (as in effect on the Execution Date) during the Transition Employment
Period. IWRA shall use its best efforts to cause the General Manager of the
Property to cooperate with and aid in the orderly transfer of the Property to
HBR. Upon request by HBR prior to the end of the Transition Employment Period,
IWRA shall terminate the employment of the General Manager following the
Transition Employment Period. IWRA shall pay ninety (90) days' severance pay to
General Manager.
4.4.2 On or prior to the Closing Date, IWRA shall terminate the
employment of all Transferred Employees.
4.4.3 All obligations, debts, and liabilities relating to any
Transferred Employee, which (a) due and payable on or prior to the Closing Date,
(b) attributable to the period on or prior to the Closing, (c) have accrued but
are not due or payable on or prior to the Closing (excluding, however, any
obligations, debts or liabilities included in the working capital adjustment set
forth in Section 8.5 hereof which shall be HBR's obligations), are the
responsibility of IWRA and (d) any accrued bonuses are the responsibility of
IWRA and are to be paid to the Transferred Employees by IWRA prior to or on the
Closing Date.
13
4.4.4 All known obligations, debts, liabilities and
"Proceedings" (as hereinafter defined) relating to any and all employees of IWRA
that are not Transferred Employees (such employees being hereinafter referred to
as "NON-TRANSFERRED EMPLOYEES") for periods prior to and including the Closing
Date, including, without limitation, all salaries, accrued vacations, bonuses
and liabilities under severance or employment agreements for the Non-Transferred
Employees, are the responsibility of IWRA. IWRA shall have the right (in its
sole and absolute discretion) to terminate or not to terminate any or all of the
Non-Transferred Employees. For any Non-Transferred Employees that remain
employees of IWRA from and after the Closing Date, IWRA shall continue to assume
any and all liabilities under any health, welfare, insurance, disability,
retirement or similar plans, policies or arrangements and other liabilities or
obligations concerning or relating to Non-Transferred Employees and shall
indemnify, defend and hold HBR harmless from and against any and all Proceedings
arising out of or relating in any way to the employment, employment practices,
terms and conditions of employment or termination of employment by IWRA of any
Non-Transferred Employee, including, without limitation, any current or future
Proceedings regarding the violation of applicable Federal, state and local laws,
rules and regulations relating to immigration, discrimination, harassment, terms
and conditions of employment, work hours, wages, plant closings or mass layoffs,
child labor, occupational health and safety, and the payment and withholding of
taxes and other sums required by Governmental Authorities.
4.4.5 HBR and IWRA acknowledge and agree that, (a) except as
provided in Section 4.4.1 no representations or commitments concerning the terms
or conditions of employment by IWRA or HBR following the Closing have been or
will be given to any employees of IWRA, except as agreed to in writing as a
joint or individual communication to any employees of IWRA and as may be
required for any "effects bargaining" with the Union; (b) except as HBR may
otherwise agree in writing or as may be required by Law, the employment of any
Transferred Employee by HBR following the Closing shall be on an at-will basis,
and HBR (or any such Transferred Employee) may terminate the employment
relationship at any time, for any reason, with or without cause or notice; and
(c) the terms and conditions of the Transferred Employees' employment with HBR
following the Closing are subject to change at any time with or without notice.
4.5 NOTICE OF CHANGE IN CIRCUMSTANCES; LITIGATION. IWRA shall
promptly notify HBR of any change (collectively, the "CHANGES") in any condition
with respect to the Property or any portion thereof or of any event or
circumstance of which IWRA obtains knowledge subsequent to the Execution Date
that (a) materially
14
affects the Property or any portion thereof, or the use or operation of the
Property or any portion thereof, (b) makes any representation or warranty of
IWRA to HBR under Article 9 of this Agreement untrue or misleading in any
material respect or (c) makes any covenant or agreement of IWRA under this
Agreement incapable or substantially less likely of being performed, it being
expressly understood that IWRA's obligation to provide information to HBR
under this Section 4.5 shall in no way relieve IWRA of any liability for a
breach by IWRA of any of its representations, warranties, covenants or
agreements under this Agreement. In addition to the foregoing, on or before
the Closing Date, IWRA shall deliver to HBR written notice of any Changes of
which IWRA has knowledge that have occurred since or subsequent to the
Execution Date. In the event that any "Proceeding" of the character
described in Section 9.3 hereof is initiated prior to the Closing, IWRA shall
promptly advise HBR in writing. Notwithstanding anything to the contrary
contained herein, if IWRA becomes aware after the Execution Date of any
Changes that (i) make any representation or warranty set forth in this
Agreement (which was true, correct and complete as of the Execution Date)
untrue, incorrect or incomplete or (ii) make any covenant or agreement of
IWRA under this Agreement (which was, as of the Execution Date, capable of
being performed) incapable or substantially less likely of being performed,
to the extent that such Changes are not a result of IWRA's breach of this
Agreement, such Changes shall not constitute a default by IWRA hereunder and
shall have no liability to HBR with respect thereto, but IWRA shall promptly
notify HBR of such Changes.
4.6 NO DEFAULTS. IWRA shall not default with respect to the
performance of any obligation relating to the Property, including, without
limitation, the payment of all amounts due and the performance of all
obligations with respect to any existing indebtedness or existing leases or
contracts affecting the Property.
4.7 EXCLUSIVE NEGOTIATION. Until the earlier to occur of the Closing
Date or the termination of this Agreement, IWRA shall (i) remove the Property
from the market, (ii) not authorize or permit any affiliate, agent, partner,
officer, director or employee of, or any investment banker, attorney or other
advisor or representative of IWRA (collectively, the "IWRA PARTIES") to,
directly or indirectly, (A) solicit or initiate, or encourage any inquiries
regarding a transfer of the of the Property to any Person, other than HBR, or
(B) participate in any discussions or negotiations regarding, or furnish to any
Person any information with respect to, or take any other action to facilitate
the making of any proposal or offer that constitutes, or may reasonably be
15
expected to impede, interfere with, frustrate, prevent, nullify or materially
delay the transactions contemplated hereby or which would reasonably be expected
to materially dilute the benefits to HBR of the transactions contemplated
hereby, and (iii) immediately advise HBR of any proposal, offer, or request for
information it receives (together with the details of such proposal, offer or
request for information) from any Person with respect to the transfer of the
Property. IWRA shall cease and shall immediately instruct IWRA Parties to
immediately cease and cause to be terminated any such existing activities,
discussions and negotiations with any Persons conducted prior to the Execution
Date.
4.8 INTENTIONALLY DELETED.
4.9 XXXX-XXXXX-XXXXXX ACT. As soon as practicable, IWRA and HBR
shall make any and all filings practicable under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX XXX"). IWRA will furnish to HBR, and HBR
will furnish to IWRA, such necessary information and reasonable assistance as
either party may request in connection with its preparation of necessary filings
or submissions to any Governmental Authority in connection with the transactions
contemplated by this Agreement, the Lease and/or the Management Agreement,
including, without limitation, any filings necessary under the provisions of the
HSR Act. IWRA will supply HBR, and HBR will supply IWRA, with copies of all
correspondence, filings, or communications (or memoranda setting forth the
substance thereof) between IWRA and its representatives or HBR and its
representatives, on the one hand, and the U.S. Federal Trade Commission, the
Antitrust Division of the U.S. Department of Justice, or any other Governmental
Authority or members of its staff, on the other hand with respect to the
Agreement or the transactions contemplated hereby.
4.10 FORMATION OF SUBSIDIARY. IWRA shall use its reasonable best
efforts (i) to form either (A) a single purpose subsidiary in which to conduct
any and all activities of IWRA other than as specified in Section 4.10(i)(B), or
(B) a single purpose subsidiary to receive any and all fees and payments
contemplated by the Lease and the Management Agreement, and (ii) to obtain all
consents and approvals necessary from any Governmental Authority with respect to
the formation of such subsidiary. If IWRA elects to, and is otherwise able to,
form a subsidiary under clause (i)(B) of this Section 4.10, IWRA shall assign
the Lease and Management Agreement to such subsidiary (HBR's consent to such
assignment being hereby acknowledged).
16
4.11 REASONABLE EFFORTS. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use all
commercially reasonable efforts to take, or cause to be taken (including
through its officers and directors and other appropriate personnel), all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable,
the transactions contemplated by this Agreement, the Lease and the Management
Agreement, including, without limitation, (i) obtaining all necessary
actions or nonactions, waivers, consents and approvals from the Governmental
Authorities and the making of all necessary registrations and filings
(including filings with the Governmental Authorities, if any) and taking all
reasonable steps as may be necessary to obtain "Licenses" (as hereinafter
defined) or waivers from, or to avoid an action or proceeding by, any
Governmental Authority (including in respect of any pari-mutuel or gaming
laws), (ii) obtaining all necessary consents, approvals or waivers from third
parties, (iii) defending any Proceeding, whether judicial or administrative,
challenging this Agreement or the consummation of any of the transactions
contemplated by this Agreement, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental
Authority vacated or reversed, (iv) IWRA's introduction and facilitation of
discussions between HBR and any third parties reasonably requested by HBR,
including, without limitation, the Iowa Greyhound Association and all other
Persons involved in the dog racing activities conducted at the Property, and
(v) the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of, this Agreement. Notwithstanding the foregoing, the parties
acknowledge that HBR and its "Affiliates" (as defined below) are not
obligated by any provision of this Agreement to obtain any consent, approval,
license, waiver, order, decree, determination of suitability or other
authorization with respect to any limited partner of any Affiliate of HBR.
Nothing herein shall be deemed to require HBR or IWRA or any of their
respective Affiliates to take any steps (including without limitation the
expenditure of funds) or provide any information to obtain any consent,
approval, license, waiver, order, decree, determination of suitability or
other authorization, other than is customary in the State of Iowa for such
matters or are reasonably required to carry out the intent of this Agreement.
As used in this section, an "AFFILIATE" of any Person means another Person
that, directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such first Person.
17
5. DESCRIPTION OF PROPERTY.
5.1 THE IMPROVEMENTS. As used herein, the term "IMPROVEMENTS" shall
mean all buildings, improvements, structures and fixtures now or hereafter
located on or in the Land Parcel, including, without exception, the Gaming
Facility, but excluding the "Gaming Equipment" (as hereinafter defined).
5.2 THE REAL PROPERTY. As used herein, the term "REAL PROPERTY"
shall include (a) the Improvements, (b) all apparatus, equipment and appliances
affixed to and used in connection with the operation or occupancy of the Land
Parcel and/or any of the Improvements (including, without limitation, heating,
air conditioning or mechanical systems and facilities used to provide any
utility services, refrigeration, ventilation, waste disposal or other services)
and now or hereafter located on or in the Land Parcel or any of the
Improvements, and (c) all of IWRA's rights, privileges and easements appurtenant
to or used in connection with the Land Parcel and/or any of the Improvements,
including, without limitation, all minerals, oil, gas and other hydrocarbon
substances, all development rights, air rights, water, water rights and water
stock relating to the Land Parcel, all strips and gores, all of IWRA's rights,
title and interest in and to any streets, alleys, easements, rights-of-way,
public ways, or other rights of IWRA appurtenant, adjacent or connected to the
Land Parcel.
5.3 THE PERSONAL PROPERTY. As used herein, the term "PERSONAL
PROPERTY" shall mean all of that certain tangible personal property, equipment
and supplies owned by IWRA and situated at the Real Property and used by IWRA in
connection with the use, operation, maintenance or repair of all or any portion
of the Real Property, including without limitation, computer equipment, service
equipment, kitchen equipment, decorations, china, glassware, linens, silverware,
kitchen and bar small goods, paper goods, printing, stationery, uniforms,
furniture, fixtures, appliances, fittings, furnishings, vehicles and inventories
(including, without limitation, all food and beverages, maintenance and
housekeeping supplies, and other supplies of all kinds, whether in use or held
in reserve storage for future use in connection with the operation of the
Property); PROVIDED, HOWEVER, the gaming equipment described on SCHEDULE 5.3
attached hereto, together with such other gaming equipment, if any, which may
only be owned by the holder of the Gaming Licenses pursuant to applicable Law
(collectively "GAMING EQUIPMENT"), shall be retained by IWRA and not transferred
to XXX.
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5.4 THE INTANGIBLE PROPERTY. As used herein, the term "INTANGIBLE
PROPERTY" shall mean all of that certain intangible property owned by IWRA
and used by IWRA in connection with all or any portion of the Real Property
and/or the Personal Property, including, without limitation, all of IWRA's
right, title and interest in, to and under: (a) all contract rights
(including, without limitation, the Service Contracts), current accounts
receivable (as determined in accordance with generally accepted accounting
principles), books, records, reports, operating and training manuals, test
results, environmental assessments, if any, as-built plans, specifications
and other similar documents and materials relating to the use, operation,
maintenance, repair, construction or fabrication of all or any portion of the
Real Property and/or the Personal Property; (b) all rights, if any, in and to
the trademarks, tradenames, patents, and trade secrets; (c) all computer
software used in the operation and maintenance of all activities conducted on
the Property (collectively, the "SOFTWARE"); (d) all transferable business
licenses, architectural, site, landscaping or other permits, applications,
approvals, authorizations and other entitlements affecting any portion of the
Real Property; (e) all transferable guarantees, warranties and utility
contracts relating to all or any portion of the Real Property; (f) all human
resources files and records and all other records relating to any Transferred
Employees; and (g) goodwill, all customer lists and player lists, mailing
lists, casino files, copies of accounting records and copies of financial
statements. Notwithstanding the foregoing, all originals of books,
accounting records and other business records of IWRA may be retained by IWRA
if HBR receives copies of such documents to the extent pertaining to the
Property or the Gaming Facility, IWRA maintains such original documents to
the extent pertaining to the Property or the Gaming Facility in good
condition after the Closing Date and HBR is afforded such reasonable access
to the original documents to the extent pertaining to the Property or the
Gaming Facility as it may request. As used herein, "Intangible Property"
shall not include the following (collectively, the "EXCLUDED INTANGIBLE
PROPERTY"): (i) U.S. patent number 5,908,354, dated June 1, 1999, which is
owned by the General Manager, (ii) the patent pending relating to activity
boards used in the Gaming Equipment, which patent has been filed by the
General Manager, (iii) all federal trademark registrations and/or pending
applications for the following trademarks and servicemarks currently being
used in the Gaming Facility, each of which is owned by the General Manager:
"Lucky Dog" (Registration No. 2,134,991); "Wild Dog" (Registration No.
2,168,578), and "Wowzer" (registration pending); and (iv) subject to Section
11.4 hereof, any claim for tax refunds which relates to any period prior to
the Closing Date.
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5.5 NET WORKING CAPITAL. As used herein, "NET WORKING CAPITAL" shall
mean "current assets," as determined in accordance with generally accepted
accounting principles applied consistently with Seller's past practice
(including without limitation, the "Cash Amount" (as hereinafter defined)), less
"current liabilities," as determined in accordance with generally accepted
accounting principles consistent with Seller's past practice. The term "CASH
AMOUNT" shall mean cash in the amount of Six Million and No/100 Dollars
($6,000,000.00).
6. CONDITIONS TO CLOSING.
6.1 HBR'S CLOSING CONDITIONS. The obligation of HBR to complete the
transactions contemplated by this Agreement is subject to the following
conditions precedent (and conditions concurrent, with respect to deliveries to
be made by the parties at Closing) (collectively, "HBR'S CLOSING CONDITIONS"),
which conditions may be waived, or the time for satisfaction thereof extended,
by HBR only in a writing executed by HBR (provided, however, that any such
waiver shall not affect HBR's ability to pursue any remedy it may have with
respect to any breach hereunder by IWRA):
6.1.1 TITLE. Title Company shall be prepared and irrevocably
committed to issue to HBR (with an effective date not earlier than the Closing
Date), an American Land Title Association extended coverage owner's policy of
title insurance in favor of HBR for the Real Property (the "OWNER'S TITLE
POLICY"), (a) showing fee title to the Real Property vested in HBR or its
nominee, (b) including those endorsements reasonably requested by HBR (provided
that such endorsements are available to HBR), (c) containing no exceptions other
than the applicable Permitted Exceptions, and (d) stating liability coverage in
such amounts as shall be determined by HBR (provided that the aggregate amount
of liability coverage shall not exceed the amount of the Consideration less the
value of the Personal Property (as set forth on EXHIBIT "E"), the Intangible
Property (as set forth on EXHIBIT "E"), and the Net Working Capital).
6.1.2 IWRA'S DUE PERFORMANCE. All of IWRA's representations and
warranties set forth in this Agreement that are qualified as to materiality
shall be true, subject to such qualification, and those not so qualified shall
be true, correct and complete in all material respects, in each case at and as
of the Closing Date with the same force and effect as though made at and as of
the Closing Date (except to the extent a representation or warranty speaks
specifically as of an earlier date in which case such representation and
warranty shall be true, correct and
20
complete as of such date), and HBR shall have received a certificate signed
on behalf of IWRA by its President and its Chief Financial Officer (or other
officer serving similar functions) to such effect. On or prior to the
Closing Date, IWRA shall have complied with and/or performed all of the
obligations, covenants and agreements required on the part of IWRA to be
complied with or performed pursuant to the terms of this Agreement, and HBR
shall have received a certificate signed on behalf of IWRA by its President
to such effect.
6.1.3 PHYSICAL CONDITION OF PROPERTY. Subject to the provisions
of Article 13 hereof, the physical condition of the Property shall be
substantially the same on the Closing Date as on the Execution Date, except for
reasonable wear and tear.
6.1.4 FINANCING. HBR shall have received financing on
substantially the terms set forth in the "Commitment Letter" (as hereinafter
defined) or the "Best Efforts Letter" (as hereinafter defined).
6.1.5 BANKRUPTCY. No action or proceeding shall have been
commenced by or against IWRA under the federal bankruptcy code or any state law
for the relief of debtors or for the enforcement of the rights of creditors and
no attachment, execution, lien or levy shall have attached to or been issued
with respect to IWRA's interest in the Property or any portion thereof.
6.1.6 DEED. On or before the first Business Day immediately
prior to the Closing, IWRA shall execute, acknowledge and deliver the Deed to
Escrow Agent.
6.1.7 XXXX OF SALE. On or before the first Business Day
immediately prior to the Closing, IWRA shall transfer to HBR all of the Personal
Property, the Intangible Property and the Cash Amount in each case free of all
liens and encumbrances (other than the applicable Permitted Exceptions),
pursuant to a xxxx of sale and assignment in the form of EXHIBIT "H" attached
hereto (the "XXXX OF SALE").
6.1.8 NON-FOREIGN AFFIDAVIT. On or before the first Business
Day immediately prior to the Closing, IWRA shall deliver to HBR a non-foreign
affidavit in the form of EXHIBIT "I" attached hereto, executed by IWRA (the
"NON-FOREIGN AFFIDAVIT").
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6.1.9 TERMINATION OF AGREEMENTS. On or before the first
Business Day immediately prior to the Closing, other than the agreements listed
on SCHEDULE 6.1.9 attached hereto and incorporated herein (the "ASSUMED
AGREEMENTS"), IWRA shall terminate any and all agreements, contracts and
instruments with respect to the Property and shall, at their own expense, pay
any and all fees associated with such termination. IWRA shall use its best
efforts to cause the Current Manager and the General Manager to take all
reasonable steps necessary to ensure an orderly transition.
6.1.10 REQUIRED CONSENTS. HBR shall have received evidence of
receipt, in form and substance reasonably acceptable to HBR, of all consents,
approvals and authorizations (collectively, the "CONSENTS") necessary to (i)
complete the purchase of the Property by HBR and the completion of the other
transactions contemplated by this Agreement, (ii) execute and deliver the Lease,
(iii) execute and deliver the Management Agreement and (iv) execute and deliver
a sponsorship agreement between IWRA and Xxxxxx'x Iowa Management Company, Inc.,
a Nevada corporation ("XXXXXX'X IOWA"), relating to the riverboat casino located
in Council Bluffs, Iowa, commonly known as Xxxxxx'x Casino Hotel, in the form of
EXHIBIT "J" attached hereto (the "SPONSORSHIP AGREEMENT"), which Consents shall
include, without limitation, (1) consents to HBR's assumption of the Assumed
Agreements, (2) any and all consents necessary from any Governmental Authority,
including, without limitation, the Gaming Commission, and (3) the consent of
Harveys Casino Resorts Compliance Committee. Notwithstanding the provisions of
the preceding sentence, if any Assumed Agreement designated on SCHEDULE 6.1.10
attached hereto and incorporated herein (collectively, the "DESIGNATED
AGREEMENTS") cannot be assigned to HBR without the consent of the other party to
such Designated Agreement and such consent cannot be obtained by IWRA
notwithstanding its exercise of reasonable efforts to obtain such consent,
including, without limitation, the payment of reasonable fees for such
assignment if required, then IWRA shall not be obligated to assign such
Designated Agreement, provided that such non-assignment does not: (y) constitute
or cause a default under such Designated Agreement or (z) have a material
adverse affect on HBR's ability to operate the Property following the Closing.
The parties hereby agree that all costs incurred in connection with or arising
out of obtaining consents or approvals for assigning or assuming the Assumed
Agreements shall be borne by IWRA.
6.1.11 LEASE. On or before the first Business Day immediately
prior to the Closing, IWRA shall have executed and delivered to Escrow Agent the
Lease.
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6.1.12 MANAGEMENT AGREEMENT. On or before the first Business
Day immediately prior to the Closing, IWRA shall have executed and delivered to
Escrow Agent the Management Agreement.
6.1.13 LICENSES. HBR shall have received all licenses,
permits, variances, exemptions, orders, and approvals (collectively, the
"LICENSES"), including, without limitation, all racing, gaming, liquor and food
service licenses, necessary to permit HBR to operate the Gaming Facility after
the Closing in substantially the same manner in which it is being operated on
the Execution Date and as contemplated to be operated pursuant to the terms and
provisions of this Agreement, the Lease and the Management Agreement. All
Licenses to be retained by IWRA, including, without limitation, the racing and
gaming license from the Gaming Commission (the "GAMING LICENSE") to operate a
casino and dog racing track at the Gaming Facility shall be in good standing and
in full force and effect. All Licenses to be transferred to HBR from IWRA that
are used in the operation of the Property shall be in good standing and in full
force and effect. IWRA shall not be required to transfer the licenses set forth
on SCHEDULE 6.1.13 attached hereto, which licenses are not transferable under
their terms or under applicable Law.
6.1.14 XXXX-XXXXX-XXXXXX ACT. All authorizations, consents and
permits required to perform this Agreement and the transactions contemplated
hereby and thereby under this Agreement or under applicable law shall have been
obtained and the required statutory waiting period under the HSR Act, if
applicable, shall have expired or been terminated.
6.1.15 RENEWAL OF SPONSORSHIP AGREEMENT. On or before the first
Business Day immediately prior to the Closing, IWRA shall have executed and
delivered to Escrow Agent the Sponsorship Agreement.
6.1.16 NO MORATORIA. No moratorium, statute, regulation,
ordinance, legislation, order, judgment, ruling or decree of any Governmental
Authority shall have been enacted, adopted, issued, entered or pending which is
directed specifically at the Property and which would reasonably be likely to
have a material adverse effect on the current or prospective value of the
Property or impose any material limitation on the ability of HBR to exercise
full rights of ownership with respect to the Property.
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6.2 FAILURE OF HBR'S CLOSING CONDITIONS. Subject to HBR's rights
under Section 14.2 hereof with respect to any default by IWRA (including,
without limitation, any default in the performance of any covenant of IWRA
set forth in this Article 6), if (i) despite HBR's good faith efforts, any of
HBR's Closing Conditions have not been satisfied prior to the Closing or (ii)
at any time prior to the Closing, HBR determines, in its reasonable
discretion, that, despite HBR's good faith efforts, any HBR's Closing
Condition is not capable of being satisfied prior to the Closing, then HBR
may:
6.2.1 waive HBR's Closing Condition and close Escrow in
accordance with this Agreement; or
6.2.2 terminate this Agreement by written notice to IWRA and
Escrow Agent, in which event all documents, instruments and funds delivered
into Escrow shall be returned to the party that delivered the same into
Escrow, and IWRA shall pay for all of the cancellation charges, if any, of
Escrow Agent and Title Company, in which case the parties shall be relieved
from all liability hereunder, except for liabilities arising under Sections
4.1.2 and 8.7 and Article 15 hereof, which provisions shall survive such
termination.
6.3 IWRA'S CLOSING CONDITIONS. The obligation of IWRA to complete
the transactions contemplated by this Agreement is subject to the following
conditions precedent (and conditions concurrent, with respect to deliveries
to be made by the parties at Closing) (the "IWRA'S CLOSING CONDITIONS"),
which conditions may be waived, or the time for satisfaction thereof
extended, by IWRA only in a writing executed by IWRA (provided, however, that
any such waiver shall not affect IWRA's abilities to pursue any remedy it may
have with respect to any breach hereunder by HBR):
6.3.1 HBR'S DUE PERFORMANCE. All of the representations and
warranties of HBR set forth in this Agreement shall be true, correct and
complete in all material respects as of the Closing Date, and HBR, on or
prior to the Closing Date, shall have complied with and/or performed all of
the obligations, covenants and agreements required on the part of HBR to be
complied with or performed pursuant to the terms of this Agreement, and IWRA
shall have received a certificate signed on behalf of HBR by its President
and its Chief Financial Officer (or other officer serving similar functions)
to such effect. On or prior to the Closing Date, HBR shall have complied with
and/or performed all of the obligations, covenants and agreements required on
the part of HBR to be complied with or performed
24
pursuant to the terms of this Agreement, and IWRA shall have received a
certificate signed on behalf of HBR by its President to such effect.
6.3.2 CONSENTS. IWRA shall have received all the Consents.
6.3.3 XXXX-XXXXX-XXXXXX ACT. All authorizations, consents
and permits required to perform this Agreement and the transactions
contemplated hereby and thereby under this Agreement or under applicable Law
shall have been obtained and the required statutory waiting period under the
HSR Act, if applicable, shall have expired or been terminated.
6.3.4 BANKRUPTCY. No action or proceeding shall have been
commenced by or against HBR under the federal bankruptcy code or any state
law for the relief of debtors or for the enforcement of the rights of
creditors and no attachment, execution, lien or levy shall have attached to
or been issued with respect to HBR's interest in the Property or any portion
thereof.
6.3.5 LEASE. On or before the first Business Day immediately
prior to the Closing, HBR shall have executed and delivered to Escrow Agent
the Lease.
6.3.6 MANAGEMENT AGREEMENT. On or before the first Business
Day immediately prior to the Closing, Manager shall have executed and
delivered to Escrow Agent the Management Agreement.
6.3.7 LETTER OF CREDIT. On or before the first Business Day
immediately prior to the Closing, HBR shall have delivered to Escrow Agent
the Letter of Credit with instruction to Escrow Agent to deliver the Letter
of Credit to L/C Escrow Agent immediately after the Closing.
6.3.8 RENEWAL OF SPONSORSHIP AGREEMENT. On or before the
first (1st) Business Day immediately prior to the Closing, Xxxxxx'x Iowa
shall have executed and delivered to Escrow Agent the Sponsorship Agreement.
6.3.9 DELIVERIES. On or before the first Business Day
immediately prior to the Closing, HBR shall have delivered to Escrow Agent or
IWRA, as the case may be, such other documents and instruments as are
required to be delivered by HBR pursuant to the terms of this Agreement.
25
6.3.10 CLOSING CONSIDERATION. On or before 11:00 a.m. (Iowa
time) on the date on which the Closing is schedule to occur (the "PAYMENT
TIME"), cash, by wire transfer in immediately available funds, in an amount
(the "CLOSING CONSIDERATION") equal to the sum of the Consideration and any
amounts required by this Agreement for closing and title costs MINUS the sum
of the difference, if any, between the Cash Amount and the cash located at
the Property at the "Effective Time" (as hereinafter defined) and the
Holdback; PROVIDED, HOWEVER, if the Closing Consideration is not delivered by
HBR to Escrow Agent on or before the Payment Time, HBR shall, at its
election, either (a) reschedule the Closing to the immediately following
Business Day, or (b) proceed with the Closing, in which case the Closing
Consideration shall accrue interest at six percent (6%) per annum, commencing
on the date Escrow Agent received the Closing Consideration from HBR and
terminating on the day Escrow Agent delivers the Closing Consideration to
IWRA.
6.4 FAILURE OF IWRA'S CLOSING CONDITIONS. Subject to IWRA's
rights under Section 14.1 hereof with respect to any default by HBR
(including, without limitation, any default in the performance of any
covenant by HBR set forth in this Article 6), if, despite IWRA's good faith
efforts, any of IWRA's Closing Conditions have not been fulfilled within the
applicable time periods, IWRA may:
6.4.1 waive IWRA's Closing Condition and close Escrow in
accordance with this Agreement, without adjustment or abatement of the
Consideration; or
6.4.2 terminate this Agreement by written notice to HBR and
Escrow Agent, in which event all documents, instruments and funds delivered
into Escrow shall be returned to the party that delivered the same into
Escrow, and HBR shall pay for all of the cancellation charges, if any, of
Escrow Agent and Title Company, in which case the parties shall be relieved
from all liability hereunder, except for liabilities arising under Sections
4.1.2 and 8.7 and Article 15 hereof, which provisions shall survive such
termination.
7. TERMINATION.
7.1 TERMINATION EVENTS. This Agreement may be terminated and
abandoned at any time prior to the Closing:
26
7.1.1 by the mutual written consent of HBR and IWRA;
7.1.2 by HBR at any time on or before the Due Diligence
Termination Date if HBR determines in its reasonable discretion that, as a
result of items disclosed in the final Phase I Report which were not
previously disclosed to HBR in the draft Phase I Environmental Site
Assessment, dated August 25, 1999, prepared by Terracon and in that certain
update letter thereto, dated August 26, 1999, each delivered to HBR on August
26, 1999, all or any portion of the Property is not acceptable to HBR, in
which case (a) IWRA shall pay the cancellation charges, if any, of Escrow
Agent and Title Company and (b) IWRA shall reimburse HBR for its reasonable
out-of pocket costs and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred in connection with the
negotiation of the transaction contemplated by this Agreement and HBR's due
diligence efforts; PROVIDED that the amount of such reimbursement shall not
exceed $150,000;
7.1.3 by HBR or IWRA if (i) any Governmental Authority, the
consent of which is a condition to the obligations of HBR and IWRA to
consummate any of the transactions contemplated by this Agreement, the Lease,
the Management Agreement or the Sponsorship Agreement, shall have determined
not to grant its consent and all appeals of such determination shall have
been taken and have been unsuccessful, or (ii) any court of competent
jurisdiction shall have issued an order, judgment or decree (other than a
temporary restraining order) restraining, enjoining or otherwise prohibiting
all of the transactions contemplated by this Agreement, the Lease or the
Management Agreement, and such order, judgment or decree shall have become
final and nonappealable;
7.1.4 by HBR or IWRA if a Governmental Authority has required
a change to be made to this Agreement, the Lease, the Management Agreement
and/or the transactions contemplated by such documents, and either party,
after prompt and diligent negotiations held in good faith with the other
party shall have determined that any required changes will cause such party
to suffer economic detriment of more than $50,000 and such party's business
objectives and economic position as contemplated herein and in the Lease and
the Management Agreement cannot be preserved;
7.1.5 by HBR if, on the advice of its counsel, it determines
that there is a reasonable likelihood that approval of the transactions
contemplated in this Agreement, the Lease and the Management Agreement will
not be granted by
27
the applicable Governmental Authorities within sixty (60) days of HBR's first
submission of filings under the HSR Act;
7.1.6 by HBR if there has been a material breach by IWRA of
any representation, warranty, covenant or agreement set forth in this
Agreement, which breach has not been cured within ten (10) Business Days
following receipt by the breaching party of notice of such breach, in which
case IWRA shall pay the cancellation charges, if any, of Escrow Agent and
Title Company;
7.1.7 by IWRA if there has been a material breach by HBR of
any representation, warranty, covenant or agreement set forth in this
Agreement, which breach has not been cured within ten (10) Business Days
following receipt by the breaching party of notice of such breach, in which
case HBR shall pay the cancellation charges, if any, of Escrow Agent and
Title Company;
7.1.8 by HBR pursuant to the terms of Section 4.2.3, Section
6.2, or Article 13;
7.1.9 by IWRA pursuant to the terms of Section 6.4; and
7.1.10 by HBR or IWRA if the Closing has not occurred by
March 31, 2000; provided, however, that (i) HBR shall not be entitled to
terminate this Agreement pursuant to this Section 7.1.10 if a knowing or
willful breach of this Agreement by HBR has prevented the Closing from
occurring by such date, and (ii) IWRA shall not be entitled to terminate this
Agreement pursuant to this Section 7.1.10 if a knowing or willful breach of
this Agreement by IWRA has prevented the Closing from occurring by such date.
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by HBR or IWRA as provided in Section 7.1 hereof, this Agreement
shall forthwith become void and there shall be no liability or obligation on
the part of HBR, IWRA or their respective officers or directors, except as
specified in Section 7.1; provided, that if this Agreement is so terminated
by a party because one or more of the conditions to such party's obligations
hereunder is not satisfied as a result of the other party's willful failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies for breach of contract or otherwise,
including, without limitation, damages relating thereto, shall survive such
termination unimpaired.
28
7.3 PAYMENT OF COSTS UPON TERMINATION. In connection with any
termination of this Agreement for any reason permitted hereunder (other than
termination pursuant to Sections 7.1.2, 7.1.6 or 7.1.7), the parties shall
share all "Closing Costs" (as hereinafter defined) and other costs as
provided in Section 8.7 hereof, including cancellation charges, if any, of
Escrow Agent and Title Company.
8. CLOSING.
8.1 CLOSING DATE. The Closing shall take place on the first
Business Day after the day on which all of HBR's Closing Conditions and
IWRA's Closing Conditions have been fully satisfied or waived in writing, or
such other date as the parties hereto may agree (in which case the parties
shall prorate all closing adjustments as of the last day of the accounting
period in which the mutually agreed upon closing date falls); provided,
however, that the Closing shall not be later than March 31, 2000 (the
"OUTSIDE CLOSING DATE"), unless at such time (i) the transactions
contemplated by this Agreement, the Lease and the Management Agreement are
subject to review by any Governmental Authority pursuant to the HSR Act or
(ii) HBR's Closing Condition specified in Section 6.1.14 hereof has not been
satisfied, then in either such case, the Outside Closing Date shall
automatically be extended to June 30, 2000. As used herein, the following
terms shall have the following meanings: (a) the "CLOSING" shall mean the
closing of the transactions contemplated by this Agreement, including,
without limitation, the recordation of the Deed in the Official Records of
Pottawattamie County, Iowa, (the "OFFICIAL RECORDS"); and (b) the "CLOSING
DATE" shall mean the date upon which the Closing actually occurs.
Notwithstanding the actual time of day at which the Closing occurs, the
Closing will be deemed to have occurred at 12:01 a.m. on the Closing Date
(the "EFFECTIVE TIME").
8.2 DELIVERIES BY IWRA. On or before the first Business Day
immediately prior to the Closing, IWRA, at its sole cost and expense, shall
deliver or cause to be delivered into Escrow the following documents and
instruments, as applicable, each dated as of the Closing Date, in addition to
all other items and payments required by this Agreement to be delivered by
IWRA at the Closing:
8.2.1 DEED. An original executed and acknowledged Deed from
IWRA, conveying all its interest in the Real Property to HBR;
29
8.2.2 NON-FOREIGN AFFIDAVIT. An original executed
Non-Foreign Affidavit from IWRA;
8.2.3 XXXX OF SALE. Four (4) original executed counterparts
of the Xxxx of Sale, executed by IWRA;
8.2.4 GROUND WATER HAZARD STATEMENT. Four (4) original
executed counterparts of the Ground Water Hazard Statement, executed by IWRA;
8.2.5 DECLARATION OF VALUE. Four (4) original executed
counterparts of the Declaration of Value, executed by IWRA;
8.2.6 LEASE. Four (4) original executed counterparts of the
Lease, executed by IWRA;
8.2.7 MANAGEMENT AGREEMENT. Four (4) original and executed
counterparts of the Management Agreement, executed by IWRA;
8.2.8 OFFICER'S CERTIFICATE. An original executed Officer's
Certificate, in the form attached hereto as EXHIBIT "K" executed by IWRA;
8.2.9 EVIDENCE OF TERMINATION. Evidence of the termination
of any management agreements affecting the Property, including without
limitation, the management agreement with Current Manager (other than the
Management Agreement);
8.2.10 PROOF OF AUTHORITY. Such proof of IWRA's authority
and authorization to enter into this Agreement and the transactions
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or
certificates on behalf of IWRA to act for and bind IWRA as may be reasonably
required by Title Company, HBR, or both; and
8.2.11 OTHER. Such other documents and instruments
(including, without limitation, affidavits reasonably required by Title
Company to facilitate the issuance of the Owner's Title Policy at the Closing
prior to the recordation of the Deed), signed and properly acknowledged by
IWRA, if appropriate, as may be reasonably required by HBR, Title Company,
Escrow Agent, or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
30
8.3 DELIVERIES BY HBR. On or before the first Business Day
immediately prior to the Closing Date (except as to the Closing Consideration
which shall be delivered on or before the Payment Time), HBR, at its sole
cost and expense, shall deliver or cause to be delivered into Escrow the
following funds, documents and instruments, each dated as of the Closing
Date, in addition to the other items and payments required by this Agreement
to be delivered by HBR at the Closing:
8.3.1 CASH. Cash in an amount equal to the Closing
Consideration in accordance with Section 6.3.10 hereof;
8.3.2 LEASE. Four (4) original executed counterparts of the
Lease, executed by HBR;
8.3.3 MANAGEMENT AGREEMENT. Four (4) original and executed
counterparts of the Management Agreement, executed by Manager;
8.3.4 LETTER OF CREDIT. The Letter of Credit.
8.3.5 RENEWAL OF SPONSORSHIP AGREEMENT. Four (4) original
and executed counterparts of the Sponsorship Agreement, executed by Xxxxxx'x
Iowa.
8.3.6 PROOF OF AUTHORITY. Such proof of HBR's authority and
authorization to enter into this Agreement and the transactions contemplated
hereby, and Manager's authority and authorization to enter into the
Management Agreement and carry out the transactions contemplated thereby, and
such proof of the power and authority of the individual(s) executing or
delivering any instruments, documents or certificates on behalf of HBR or
Manager, respectively, to act for and bind HBR or Manager, respectively, as
may be reasonably required by Title Company, IWRA, or both; and
8.3.7 OTHER. Such other documents and instruments, signed
and properly acknowledged by HBR, if appropriate, as may be reasonably
required by IWRA, Title Company, Escrow Agent, or otherwise in order to
effectuate the provisions of this Agreement and the Closing of the
transactions contemplated herein.
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8.4 ACTIONS BY ESCROW AGENT. Provided that Escrow Agent shall not
have received written notice from HBR or IWRA of the failure of any condition
to the Closing or of the termination of the Escrow and this Agreement, when
HBR and IWRA have deposited into Escrow the documents and funds required by
this Agreement and Title Company is irrevocably and unconditionally committed
to issue the Owner's Title Policy effective as of the Closing Date, Escrow
Agent shall, in the order and manner herein below indicated, take the
following actions:
8.4.1 FUNDS. Disburse all funds as follows:
8.4.1.1 pursuant to the closing statement to be
prepared by Escrow Agent and approved in writing by both HBR and IWRA (the
"CLOSING STATEMENT"), retain for Escrow Agent's own account all escrow fees
and costs, disburse to Title Company the fees and expenses incurred in
connection with the issuance of the Owner's Title Policy, and disburse to any
other Persons entitled thereto, as expressly stated on the Closing Statement,
the amount of any other Closing Costs;
8.4.1.2 disburse funds necessary to discharge and
release any and all Liens against the Property (other than the Permitted
Exceptions);
8.4.1.3 deliver to IWRA, by wire transfer of
immediately available funds, in accordance with and subject to the provisions
of Section 6.3.10, the Closing Consideration (subject to prorations and
adjustments as provided herein);
8.4.1.4 disburse to HBR or IWRA, as the case may be,
any remaining funds in the possession of Escrow Agent after payments pursuant
to Sections 8.4.1.1, 8.4.1.2 and 8.4.1.3 hereof have been completed; and
8.4.2 RECORDING. Cause the Deed and any other documents that
the parties hereto may mutually direct to be recorded in the Official Records
and obtain conformed copies thereof for distribution to HBR and IWRA. IWRA
hereby agrees that if Title Company cannot insure the "gap period" as
provided in Section 8.4.1 hereof, the funds shall not be disbursed as
provided in Section 8.4.1 unless and until Escrow Agent and HBR have received
confirmation that the Deed has been recorded in the Official Records.
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8.4.3 DELIVERY OF DOCUMENTS. Deliver: (a) to IWRA, (i) two
originals of all documents deposited into Escrow (other than the Deed and the
Non-Foreign Affidavit) and (ii) one conformed copy of each document recorded
pursuant to the terms hereof; and (b) to HBR, (i) two originals of all
documents deposited into Escrow (other than the Deed, the Officer's
Certificate, and the Non-Foreign Affidavit), (ii) the original Non-Foreign
Affidavit, and (iii) one conformed copy of each document recorded pursuant to
the terms hereof.
8.4.4 OWNER'S TITLE POLICY. Cause the Title Company to issue
and deliver the Owner's Title Policy to HBR.
8.4.5 RECORDED DEED. Cause the original recorded Deed to be
delivered to HBR.
8.5 WORKING CAPITAL ADJUSTMENTS TO THE CONSIDERATION. The
Consideration shall be increased by the amount, if any, that Net Working
Capital as of the Closing Date is greater than $1,600,000 and shall be
decreased by the amount, if any, that Net Working Capital as of the Closing
Date is less than $1,600,000.
8.6 POST CLOSING ADJUSTMENTS.
8.6.1 PREPARATION OF AUDITED BALANCE SHEET. As soon as
possible after the Closing, but not later than sixty (60) days after the
Closing, IWRA shall permit HBR's accountants ("HBR'S ACCOUNTANT") to access
its books and records of the Property for the purpose of preparing a balance
sheet (the "AUDITED BALANCE SHEET") of the Bluffs Run component of IWRA's
books and records as of the Closing Date (without giving effect to the
transactions contemplated by this Agreement). HBR's Accountant shall prepare
the Audited Balance Sheet in accordance with generally accepted accounting
principles consistently applied with IWRA's past practice. HBR's Accountant
shall deliver the Audited Balance Sheet to IWRA, and IWRA and its accountants
("IWRA'S ACCOUNTANT") shall have twenty (20) Business Days to review the
Audited Balance Sheet and the work papers of HBR's Accountant and to deliver
written notice (the "DISPUTE NOTICE") of any disagreements specifying in
reasonable detail the nature and extent of such disagreement. If IWRA's
Accountant and HBR's Accountant cannot resolve such disagreement within ten
(10) days of HBR's Accountant receipt of the Dispute Notice, the items of
disagreement shall be referred for final determination to an independent
accounting firm (the "INDEPENDENT ACCOUNTANT") as HBR's Accountant and IWRA's
Accountant shall mutually determine. The Audited Balance Sheet shall be
deemed to be binding on the parties upon
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(i) IWRA's failure to deliver to HBR the Dispute Notice within twenty (20)
Business Days of IWRA's receipt of the Audited Balance Sheet, (ii) resolution
of any disagreement by mutual agreement of HBR's Accountant and IWRA's
Accountant after IWRA's timely delivery of the Dispute Notice, or (iii)
notification by the Independent Accountant of its final determination of the
items of disagreement submitted to it.
8.6.2 FINAL ADJUSTMENTS. If the Audited Balance Sheet shows
that HBR is entitled to additional funds in connection with any obligations
or assets of IWRA, then such funds shall be paid to HBR by IWRA on or before
the fifth (5th) day after the date the Audited Balance Sheet is deemed final
and binding on the parties. If the Audited Balance Sheet shows that IWRA is
entitled to additional funds in connection with any obligations or assets of
IWRA, then such funds shall be paid to IWRA by HBR on or before the fifth
(5th) day after the date the Audited Balance Sheet is deemed final and
binding on the parties.
8.7 CLOSING COSTS. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without
limitation, its own attorneys' and advisors' fees, charges and
disbursements), except the following costs (the "CLOSING COSTS"), which shall
be allocated between the parties as follows:
8.7.1 JOINT COSTS AND EXPENSES. The following costs and
expenses shall be paid one-half (1/2) by IWRA and one-half (1/2) by HBR: (i)
Escrow Agent's escrow fees and costs, (ii) the cost of the environmental
assessment, the engineering and structural report, and the Survey; (iii) any
filing fees payable in connection with any applications or notifications
under the HSR Act; (iv) the cost of the Abstract of Title, the Title Opinion
and the Owner's Title Policy; (v) recording fees incurred for the recordation
of the memorandum of lease required pursuant to the Lease and (vi) the cost
of the Independent Accountant, if any.
8.7.2 IWRA'S COSTS AND EXPENSES. The following costs and
expenses shall be paid by IWRA: (i) all documentary transfer, stamp, sales
and other taxes related to the transfer of the Property, (ii) any and all
amounts or penalties due and payable in connection with the discharge and
satisfaction of any Liens (other than Permitted Exceptions) in accordance
with the terms hereof; (iii) except as provided in Section 8.7.3 below, all
recording fees incurred for the recordation of documents and instruments to
cure defects in title.
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8.7.3 HBR'S COSTS AND EXPENSES. The following costs and
expenses shall be paid by HBR: (i) all recording fees incurred in connection
with the recordation of the Deed; (ii) the cost of the Title Opinion;
PROVIDED, HOWEVER, at the Closing, HBR shall be credited with one-half (1/2)
the cost of the Title Opinion and (iii) costs incurred by HBR in its
application for a liquor license for the Property.
8.8 DELIVERIES OUTSIDE OF ESCROW. IWRA shall deliver possession
of the Property, subject only to the Permitted Exceptions, to HBR upon the
Closing. Further, IWRA hereby covenants and agrees to deliver to HBR, on or
prior to the Closing, the following items:
8.8.1 POSSESSION OF THE PROPERTY. IWRA shall give, assign
and transfer to HBR complete possession of the Property at the actual time of
Closing, provided that such transfer of possession shall be deemed to have
occurred at the Effective Time.
8.8.2 TRANSFER OF GAMING OPERATIONS. At the Effective Time,
the cash or tokens in the hoppers, buckets (or slot drops) and the xxxx
acceptors in all slot machines shall be counted (by emptying and counting the
cash in the loads of all machines) by IWRA and verified by HBR.
8.8.3 CASH AMOUNT. At the actual time of Closing, the Cash
Amount shall be transferred to HBR from IWRA.
8.8.4 INTANGIBLE PROPERTY. The Intangible Property,
including, without limitation, the original Property Documents.
8.8.5 PERSONAL PROPERTY. The Personal Property, including,
without limitation, any and all keys, pass cards, remote controls, security
codes, computer software and other devices relating to access to the
Improvements.
8.8.6 NOTICES. A letter to the vendors of the Assumed
Agreements in form and substance reasonably acceptable to HBR, duly executed
by IWRA, dated as of the Closing Date and addressed to such vendors,
informing such vendors of the assignment of the Assumed Agreements to XXX.
00
0. IWRA'S REPRESENTATIONS AND WARRANTIES.
IWRA represents and warrants to and agrees with HBR, as of the
Execution Date and as of the Closing Date, as follows:
9.1 EXISTING CONTRACTS. The schedule attached hereto as SCHEDULE
9.1 (the "CONTRACTS SCHEDULE") is true, correct and complete with respect to
all service, maintenance, repair, management, supply and other contracts
(including, without limitation, service contracts for the Property (the
"SERVICE CONTRACTS")) to which IWRA is a party and for which Gaming
Commission approval and/or consent was necessary. IWRA has delivered to HBR
true, correct and complete copies of all service, maintenance, repair,
management, supply and other contracts (including, without limitation, all
Service Contracts) to which IWRA or its agent is a party and to the extent
that the same were in IWRA's possession and IWRA has used its best efforts to
cause its agents, auditors or independent contractors to deliver the same to
HBR after a diligent review and examination of their respective files and
records.
9.2 INSURANCE. There are currently in effect such insurance
policies for the Property as are customarily maintained with respect to
similar properties. True, correct and complete copies of all insurance
policies maintained by IWRA with respect to the Property shall be made
available to HBR as part of the Property Documents. All premiums due on such
insurance policies have been paid by IWRA (or its agents) and IWRA will
maintain such insurance policies from the Execution Date through the Closing
Date or earlier termination of this Agreement. IWRA has not received and has
no knowledge of any notice or request from any insurance company requesting
the performance of any work or alteration with respect to the Property. IWRA
has not received any notice from any insurance company concerning, and IWRA
is not aware of, any defects or inadequacies in the Property, which, if not
corrected, would result in the termination of insurance coverage or increase
its cost.
9.3 LITIGATION. Other than as shown on SCHEDULE 9.3 attached
hereto and incorporated herein, there are no "Proceedings" (as hereinafter
defined) before any judicial or quasi-judicial body, by any Governmental
Authority or other third party, pending, or to IWRA's knowledge, threatened,
against or affecting all or any portion of the Property and, to IWRA's
knowledge, there is no basis for any such Proceeding. There are no
Proceedings pending, contemplated or threatened by IWRA in connection with
all or any portion of the Property or IWRA's ownership, rights, use,
development or maintenance thereof, including, without limitation, tax
36
reduction proceedings; and, except as provided in Section 11.4 hereof, from
and after the date hereof, IWRA shall not commence or allow to be commenced
on its behalf or join in any Proceeding with respect to all or any portion of
the Property without the prior written consent of HBR, which consent may be
withheld in HBR's sole and absolute discretion, including, without
limitation, any Proceeding regarding the current tax rates applicable to
income generated from riverboat casinos and land-based casinos. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other Proceedings are pending, or,
to IWRA's knowledge, threatened, against IWRA. As used herein, "PROCEEDING"
means any action, arbitration, audit, hearing, investigation, litigation, or
suit (whether civil, criminal, administrative, investigative, or informal)
commenced, brought, conducted, or heard by or before, or otherwise involving,
any Governmental Authority or arbitrator, and any appeal of the foregoing.
9.4 COMPLIANCE WITH LAWS. To IWRA's knowledge, the Property is,
in all material respects, in compliance with all Laws, including, without
limitation, (a) the Americans with Disabilities Act, 42 U.S.C. Section
12102, et seq., together with all rules, regulations and official
interpretations promulgated pursuant thereto, (b) all Laws with respect to
zoning, building, fire, life safety, health codes and sanitation, and (c) all
laws with respect to dog racing, pari-mutuel gaming, and the operation of a
casino including without limitation, gaming licenses, liquor licenses, and
licenses to operate food establishments. IWRA has not received any notice
of, and IWRA has no knowledge of, any condition currently or previously
existing on the Property or any portion thereof which may give rise to any
violation of any existing Law applicable to the Property if it were disclosed
to the authorities having jurisdiction over the Property.
9.5 CONDEMNATION; SPECIAL ASSESSMENTS. IWRA has no knowledge of
any pending or contemplated condemnation, eminent domain or similar
proceeding or special assessment which would affect the Property or any part
thereof in any way whatsoever. To IWRA's knowledge, there are no presently
planned public improvements that would or could result in the creation of a
special assessment or similar lien on the Property.
37
9.6 TOXIC OR HAZARDOUS MATERIALS.
9.6.1 DEFINITIONS.
(a) "ENVIRONMENTAL CLAIM" means any claim, action, cause of
action, investigation or notice (written or oral) by any Person alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (i) the manufacture, treatment,
processing, distribution, use, transport, handling, deposit, storage,
disposal, leaking or other presence, or release into the environment of any
"Material of Environmental Concern" (as hereinafter defined) in, at, on,
under, from or about any location, whether or not owned or operated by IWRA,
or (ii) circumstances forming the basis of any violation or alleged violation
of any "Environmental Law" (as hereinafter defined).
(b) "ENVIRONMENTAL LAWS" means all federal, state, local and
foreign laws and regulations relating to pollution or protection of human
health or the environment, including, without limitation, laws and
regulations relating to emissions, discharges, releases or threatened
releases of Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
(c) "MATERIAL OF ENVIRONMENTAL CONCERN" means chemicals,
pollutants, contaminants, wastes, toxic or hazardous substances, petroleum
and petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, lead or lead-based paints or materials, and radon.
9.6.2 REPRESENTATIONS AND WARRANTIES. To IWRA's and Current
Manager's knowledge, IWRA is in full compliance with all applicable
Environmental Laws relating to the Property, which compliance includes, but
is not limited to, the possession and compliance therewith by IWRA of all
permits and other governmental authorizations required under applicable
Environmental Laws. IWRA has not received any notice, whether from a
Governmental Authority, citizens group, employee or other Person, that
alleges that IWRA is not in full compliance with Environmental Laws and, to
IWRA's knowledge, there are no circumstances that may prevent or interfere
with such full compliance in the future. Neither IWRA nor the Current
Manager has any knowledge of any Environmental Claim pending or
38
threatened with regard to the Property. To IWRA's and Current Manager's
knowledge, there are no past or present actions, activities, circumstances,
conditions, events or incidents relating to the Property, including, without
limitation, the manufacture, generation, treatment, processing, distribution,
use, transport, handling, deposit, storage, disposal, leaking, or other
presence or release of any Material of Environmental Concern, that could form
the basis of any Environmental Claim against IWRA or against any Person,
including, without limitation, Persons whose liability for such Environmental
Claim IWRA may have retained or assumed either contractually or by operation
of law. Without in any way limiting the generality of the foregoing, to
IWRA's knowledge, (a) IWRA has not stored, disposed of or arranged for the
disposal of any Material of Environmental Concern on the Property (except for
cleaning and maintenance supplies maintained in the ordinary course of
business by IWRA), (b) there are no underground storage tanks located on the
Property, (c) there is no asbestos contained in or forming part of any
Improvement, including, without limitation, the Gaming Facility, any building
component, structure or office space on the Property, (d) no polychlorinated
biphenyls (PCBs) are used or stored at the Property, (e) there are no
Environmental Claims or circumstances in the vicinity of the Property
relating to environmental contamination or clean-up affecting or compromising
the value of the Property, (f) IWRA has provided to HBR all assessments,
reports, data, results of investigations or audits, or other information that
is in the possession of or reasonably available to IWRA relating to the
environmental matters at or the environmental condition of the Property, and
(g) there are no "xxxxx," "solid waste disposal sites" or "private burial
sites," each as defined in the Iowa Code (1999), as may be amended,
supplemented or modified (the "IOWA CODE") or regulations promulgated
pursuant thereto, located on the Property.
9.7 DISCLOSURE. To IWRA's knowledge without investigation, IWRA
has disclosed to HBR all information relating to the Property that would
reasonably be expected to have a material adverse effect on the Property.
9.8 NO CONFLICTS. The execution and delivery of this Agreement by
IWRA, the consummation of the transactions herein contemplated to be
performed by IWRA, and compliance with the terms of this Agreement by IWRA
will not conflict with, or, with or without notice or the passage of time or
both, result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, deed of trust, mortgage, loan agreement, or
other document, instrument or agreement, oral or written, to which IWRA is a
party or by which IWRA or its assets are bound, or any regulation, judgment,
order or decree of any Governmental Authority having jurisdiction over IWRA
or all or any portion of the Property.
39
9.9 DUE ORGANIZATION; CONSENTS. IWRA is a nonprofit corporation
duly organized, validly existing and in good standing under the laws of the
State of Iowa, with its principal place of business in the State of Iowa and
IWRA has never existed or operated under any other name. All requisite
action has been taken by IWRA in connection with entering into this
Agreement, and will be taken prior to the Closing in connection with, the
execution and delivery of the instruments referenced herein and the
consummation of the transactions contemplated hereby. Other than the
consents listed on SCHEDULE 9.9 attached hereto and incorporated herein, no
consent of any partner, shareholder, beneficiary, creditor, investor,
judicial or administrative body, Governmental Authority or other party is
required in connection with the execution by IWRA of this Agreement and/or
the performance by IWRA of its obligations hereunder.
9.10 IWRA'S AUTHORITY; VALIDITY OF AGREEMENTS. IWRA has full
right, power and authority to transfer, contribute and convey the Property to
HBR as provided in this Agreement, to carry out its obligations hereunder and
to execute, deliver and perform, and enter into and consummate, all of the
documents and transactions contemplated by this Agreement. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
IWRA have the legal power, right and actual authority to bind IWRA to the
terms hereof and thereof. This Agreement is, and all instruments, documents
and agreements to be executed by IWRA in connection herewith shall be, duly
authorized, executed and delivered by IWRA and shall be valid, binding and
enforceable obligations of IWRA, subject to any limitation by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
9.11 FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. IWRA is not a
foreign person within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended (the "CODE").
9.12 LEASES. Other than the leases listed on SCHEDULE 9.12
attached hereto and incorporated herein, IWRA has not entered into any
leases, licenses, tenancies or other occupancy agreements (whether written or
oral) now in effect at the Property. There are no parties in possession of
any portion of the Property other than IWRA and the Current Manager.
9.13 GAMING LAWS. IWRA and its directors, officers, and other
persons performing management functions on behalf of IWRA hold all permits,
registrations, findings of suitability and licenses necessary under "Gaming
Laws" (as
40
defined below) to operate a land-based casino, a dog track and all functions
incident thereto on the Property, as currently conducted, and each such
permit, registration, finding of suitability and license is in full force and
effect, and IWRA has not received any notice of revocation in respect
thereof. "GAMING LAWS" means any federal, state, local or foreign statute,
ordinance, rule, regulation, permit, consent, registrations, findings of
suitability, approval, license, judgement, order, decree, injunction, or
other authorization, including any condition or limitation placed thereon,
governing or relating to the pari-mutuel, casino and gaming activities and
operations on the Property, including any applicable state gaming law and any
federal or state laws relating to currency transactions.
9.14 YEAR 2000 COMPLIANCE. Xxx "Xxxxxx Xxx Xxxxxx X0X Status
Sheet" attached hereto as EXHIBIT "L" (the "STATUS REPORT") represents, as of
the Execution Date, the year 2000 readiness status of certain selected items.
In particular, the column entitled "Status" on such Status Report contains
the following categories: "Awaiting Vendor Response," "Letter on File,"
"Testing Complete," and "Y2K Compliant." "AWAITING VENDOR RESPONSE" shall
mean that a letter has been forwarded to the applicable vendor but no
response has been received. "LETTER ON FILE" shall mean that a letter from
the vendor indicating the status of year 2000 readiness of the applicable
item is on file and no further action has been taken by IWRA. "TESTING
COMPLETE" shall mean that the testing for Y2K Compliance has been completed.
"Y2K COMPLIANT" shall mean that the applicable Software, system, item or
device is designed to be used prior to, during and after December 31, 1999,
and such Software, system, item or device will operate during each such time
period without error relating to the year 2000, specifically including any
error relating to, or the product of, date data that represents or references
different centuries or more than one century and that it will accept,
calculate, sort, extract, and otherwise process date inputs and date values
and return and display date values, in a consistent manner regardless of the
dates used, whether before, on or after January 1, 2000. To the best of
IWRA's and Current Manager' knowledge and belief, the Status Report
accurately reflects year 2000 readiness of the items reflected thereon. IWRA
has relied on information from vendors and other third parties in
identifying, assessing, remediating and testing the Software, systems, items
and devices set forth on the Status Report. Therefore, IWRA makes no "Year
2000 Compliant" representation or warranty regarding ultimate year 2000
readiness of any Software, system, item or device. However, to the extent
such representations or warranties are provided by the manufacturer and/or
supplier of any Software, system, item or device and are transferable, IWRA
agrees to transfer to HBR at Closing, the benefits of any such representation
or warranty provided by the manufacturer and/or supplier of such
41
Software, system, item or device . Notwithstanding the foregoing, IWRA hereby
agrees that prior to the Closing, the time and attendance software and, if
available, the keno system software shall be upgraded to be Y2K Compliant.
9.15 FINANCIAL STATEMENTS.
9.15.1 IWRA has provided true and complete copies of all
"Financial Statements" (as defined below), together with the related auditors
reports. "FINANCIAL STATEMENTS" shall mean (a) the consolidated balance
sheets of IWRA as of December 31 in each of the years 1996 through 1998
together with consolidated statements of income and cash flows for each of
the years then ended, all certified by Xxxxxx Xxxxxxxx LLP, independent
certified public accountants for IWRA, whose reports thereon are included
therein, and (b) an unaudited consolidated balance sheet of IWRA as of the
most recently ended period and unaudited consolidated statements of income
and cash flows for the period then ended. IWRA further represents and
warrants that all Financial Statements have been prepared from, are in
accordance with, and accurately reflect, the books and records of IWRA,
comply in all material respects with applicable accounting requirements, have
been prepared in accordance with GAAP applied on a consistent basis during
the periods involved (except as may be stated in the notes thereto) and
fairly present the consolidated financial position and the consolidated
results of operations and cash flows (and changes in financial position, if
any) of IWRA as of the times and for the periods referred to therein
(subject, in the case of unaudited statements, to normally recurring year-end
audit adjustments which are not material either individually or in the
aggregate).
9.15.2 Since the date of IWRA's balance sheets dated as of
December 31, 1998, none of the following has occurred or arisen in the
operation of the Property: (a) any change, event or condition that has had
or reasonably may be expected to have, in any one case or in the aggregate, a
material adverse effect on IWRA or the Property, (b) any material casualty,
loss, damage or destruction of IWRA's assets, (c) sale, assignment or
transfer of any of the properties or assets of IWRA, other than in the
ordinary course of business, (d) any new encumbrance or lien on all of the
Property, (e) amendment, cancellation, or early termination of any material
contract or agreement, permit or license, or other instrument relating to the
use or operation of the Property, and (f) incurrence of any liability or
other obligation not in the ordinary course of business or involving payments
in excess of $50,000 in the aggregate.
42
9.16 TAXES.
9.16.1 TAX FILINGS. IWRA has timely filed or caused to be
timely filed, or will timely file or cause to be timely filed on or prior to
the Closing Date, all United States federal, state, local and foreign tax
returns, declarations, statements, reports, schedules, forms, and information
returns and any amendments thereto (the "TAX RETURNS") that are or were
required to be filed by either of them on or prior to the Closing Date,
either separately or as a member of a group of corporations. All such Tax
Returns and amendments thereto are or will be true, complete and correct in
all material respects on the Closing Date.
9.16.2 PAYMENT OF TAXES. IWRA has paid all material United
States federal, state, local, and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through withholding), including
any interest, additions to tax, or penalties applicable thereto ("TAXES") for
all periods ending through the date hereof, imposed in connection with or
applicable to the Property, or where payment is not yet due, IWRA has
established or will establish or cause to be established on or before the
Closing Date, an adequate accrual for the payment of all such taxes.
9.16.3 TAX LIENS. There are no liens for Taxes upon any
Property of IWRA or any of its subsidiaries, except for liens for Taxes not
yet due.
9.16.4 TAX AUDITS. No Governmental Authority, including
without limitation, any Tax authority, is currently reviewing or has given
notice of its intent to review IWRA's business or financial records for any
open year.
9.16.5 WITHHOLDING TAXES. IWRA shall withhold proper and
accurate amounts from IWRA's employee payrolls for all periods prior to the
Closing Date in material compliance with all withholding provisions of
applicable local, state, and federal laws.
9.17 NONPROFIT STATUS.
9.17.1 IWRA. IWRA qualifies as a nonprofit corporation
organized under the laws of Iowa to promote those purposes enumerated in
section 99B.7, subsection 0, xxxxxxxxx "x" of the Iowa Code. IWRA promotes
those purposes enumerated in section 99B.7, subsection 0, xxxxxxxxx "x" of
the Iowa Code.
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9.17.2 REVIEW BY GOVERNMENTAL AUTHORITY OF IWRA. No
Governmental Authority, including without limitation, any Tax authority, is
reviewing or has given any notice that a Governmental Authority intends to
review the status of IWRA as a nonprofit corporation organized under the laws
of Iowa to promote those purposes enumerated in section 99B.7, subsection 0,
xxxxxxxxx "x" of the Iowa Code.
9.18 LIENS AGAINST THE GAMING LICENSE. IWRA expressly represents
and warrants that no lien currently exists against its Gaming License.
9.19 LIENS AGAINST THE GAMING EQUIPMENT. IWRA expressly
represents and warrants that it owns or otherwise has a valid right to use
and possess the Gaming Equipment free and clear of any adverse claim and that
no lien currently exists against the Gaming Equipment.
9.20 BOOKS AND RECORDS. The books of account, minute books, and
other related records of IWRA, which have been provided to HBR as part of the
Property Documents, are true, complete and correct in all material respects
and have been maintained in accordance with sound business practices,
including the maintenance of an adequate system of internal controls.
9.21 NO UNDISCLOSED LIABILITIES. IWRA has disclosed all known
liabilities to HBR, except for liabilities and obligations incurred in the
ordinary course of business and consistent with past practice. Since the
Execution Date, IWRA has not incurred any liability or obligation of any
nature, whether or not accrued, contingent or otherwise, that has, or would
be reasonably likely to have, a material adverse effect on IWRA or the
Property taken as a whole.
9.22 ACCOUNTS RECEIVABLE. All current accounts receivable of
IWRA, whether reflected in the Financial Statements or otherwise, represent
income earned in the ordinary course of business. Other than the
approximately $67,000 due to IWRA from the Iowa Greyhound Association
pursuant to awards from arbitration decisions, each of current accounts
receivable is expected to be collected in full, without any set-off, within
sixty (60) days after the day on which it became due and payable.
9.23 DISPUTED ACCOUNTS PAYABLE. There are no unpaid invoices or
bills representing amounts alleged to be owed by IWRA, which IWRA has
disputed or determined to dispute or refused to pay.
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9.24 INTELLECTUAL PROPERTY. IWRA owns, or is licensed or
otherwise possesses legally enforceable rights to use Intangible Property,
including, without limitation, the Software and electronic equipment
associated with the operation and maintenance of all activities on the
Property, and the consummation of this Agreement will not alter or impair
such ability in any respect. IWRA further warrants and represents that, to
IWRA's knowledge, there are no oppositions, cancellations, invalidity
proceedings, interferences or re-examination proceedings presently pending
with respect to the Intangible Property that are reasonably likely to have a
material adverse effect on IWRA or the Property. IWRA further warrants and
represents that it has not received any notice that its conduct infringes
upon any intellectual property rights or any other proprietary right of any
other Person, and IWRA has not received any written notice from any other
Person pertaining to or challenging the right(s) of IWRA. IWRA warrants and
represents that it has not made any still pending claim of a violation or
infringement by others of its rights to or in connection with any
Intellectual Property associated with the Property.
9.24.1 SCHEDULE 9.24.1 attached hereto sets forth a true and
complete list of all patents and patent applications, trademark registrations
and applications, service xxxx registrations and applications, copyright
registrations and applications, material unregistered trademarks, service
marks, copyrights and Internet domain names used or held for use in
connection with the Property whether IWRA is the licensee or licensor
thereunder (excluding, however, the Excluded Intangible Property).
9.24.2 IWRA is the valid licensee or sole and exclusive owner
of all the Intangible Property, free and clear of all encumbrances.
9.24.3 IWRA owns or has the valid right to use all of the
Intangible Property used or held for use by it in connection with its
business. IWRA further warrants and represents that to the knowledge of IWRA,
there are no conflicts with or infringements of any Intangible Property by
any third party, that the past and current conduct of IWRA or any agent of
IWRA does not conflict with or infringe in any way on any proprietary right
of any third party, that there is no claim, suit, action or proceeding
pending or, to IWRA's knowledge, threatened against IWRA (i) alleging any
such conflict or infringement with any third party's proprietary rights or
(ii) challenging the ownership, use, validity or enforceability of the
Intangible Property.
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9.25 LABOR MATTERS
9.25.1 IWRA is not a party to nor bound by any collective
bargaining or similar agreement with any labor organization or work rules or
practices agreed to with any labor organization or employee association
applicable to employees of IWRA, with the exception of the collective
bargaining agreement between Iowa West Racing Association d/b/a Bluffs Run
Casino and International Union, United Plant Guard Workers of America (the
"UNION"), dated May 1, 1998.
9.25.2 With the exception of the Union, no labor union has
been certified by the National Labor Relations Board as bargaining agent for
IWRA's employees; no notice has been received from any labor union stating
that it has been designated as the bargaining agent for any of said
employees; and no petition has been filed by any labor union requesting an
election to determine whether or not it is the exclusive bargaining agent for
any of said employees.
9.25.3 With the exception of the employees represented by
the Union, none of the employees of IWRA is represented by any labor
organization and (with the exception of certain activities undertaken by the
Teamsters and ICU-UCFW (food workers union), respectively, which activities
did not result in an election and were ceased by January 1, 1999) there have
been no union organizing activities among the employees of IWRA within the
past five (5) years, nor does any question concerning representation exist
concerning such employees.
9.25.4 There is no labor strike, dispute, corporate
campaign, slowdown, stoppage or lockout actually pending, threatened against
or affecting the Property, and during the past five (5) years there has not
been any such action.
9.25.5 There is no unfair labor practice charge, complaint
or Proceeding against IWRA pending or threatened before the National Labor
Relations Board or any similar state or foreign agency.
9.25.6 There is no pending grievance or arbitration
Proceeding arising out of any collective bargaining agreement or other
grievance procedure relating to IWRA or the Property.
9.25.7 With the exception of standard form confidentiality and
non-compete agreements (true and correct copies of the forms of which were
provided by IWRA to HBR prior to the Execution Date), a true and correct copy of
46
each employment contract, consulting agreement and severance agreement
between IWRA and any employee of IWRA shall be provided to HBR as part of the
Property Documents.
9.25.8 A true and complete copy of each written personnel
policy, rule and procedure applicable to employees of IWRA shall be provided
to HBR as part of the Property Documents.
9.25.9 IWRA is, and has at all times been, in compliance, in
all material respects, with all Laws respecting employment and employment
practices, terms and conditions of employment, wages, hours of work and
occupational safety and health, and is not engaged in any unfair labor
practices, as defined in the National Labor Relations Act or other Laws.
9.25.10 Except as disclosed on SCHEDULE 9.3, there is no
charge with respect to or relating to IWRA pending before the Equal
Employment Opportunity Commission or any other agency responsible for the
prevention of unlawful employment practices.
9.25.11 IWRA has not received notice of the intent of any
federal, state, local or foreign agency responsible for the enforcement of
labor or employment laws to conduct an investigation, and no such
investigation is in progress.
9.25.12 There are no complaints, lawsuits or other
Proceedings pending or, to IWRA's knowledge, threatened in any forum by or on
behalf of any present or former employee of IWRA, any applicant for
employment or classes of the foregoing alleging breach of any express or
implied contract of employment, any laws governing employment or the
termination thereof or other discriminatory, wrongful or tortious conduct in
connection with the employment relationship.
9.25.13 Since the enactment of the Worker Adjustment and
Retraining Notification Act of 0000 (xxx "XXXX XXX"), XXXX has not
effectuated a "plant closing" (as defined in the WARN Act) affecting the
Property or a "mass layoff" (as defined in the WARN Act) affecting the
Property; nor has IWRA been affected by any transaction or engaged in layoffs
or employment terminations sufficient in number to trigger application of any
similar state, local or foreign Law or regulation.
47
9.25.14 SCHEDULE 9.25.14 attached hereto sets forth a true
and complete list of (i) the names and current salaries of all officers and
key employees of IWRA; (ii) the wage rates for non-salaried and non-executive
salaried employees of IWRA by classification; and (iii) all group insurance
programs in effect for employees of IWRA. IWRA further warrants and
represents that it is not in default with respect to any of its obligations
referred to in the preceding sentence, and that to IWRA's knowledge, no
officer, key employee or group of employees has any plans to terminate
employment with IWRA as a result of the execution of this Agreement or
otherwise.
9.26 COMPLIANCE WITH THE WARN ACT. IWRA shall be responsible for
any liability under the WARN Act or such similar statute or regulation for
those "mass layoff" or "plant closing" (each as defined in the WARN Act) by
IWRA occurring on or before the Closing Date. HBR shall be responsible for
any liability under the WARN Act or such similar statute or any such "mass
layoff" or "plant closing" by HBR after the Closing Date.
9.27 UTILITIES ACCESS. The Property has access to all water,
sewer, electric, natural gas, telephone, drainage facilities and all other
utilities necessary to operate the Property as a casino and dog track and as
contemplated to be operated by the Lease and the Management Agreement, and
such access has been provided in material compliance with all requirements of
Laws. All municipal charges for water, sewer or solid waste disposal have
been paid in full.
9.28 COMPLIMENTARIES. IWRA is not committed to any complimentary
arrangement for food or beverage for any guest or client as of the Closing
Date or any period thereafter which has not been taken into account in
determining its "current liabilities," as determined in accordance with
generally accepted accounting principles consistent with IWRA's past
practice.
9.29 CUSTOMER DATABASE. To IWRA's knowledge, no employee,
representative, agent or member of IWRA has delivered, and IWRA shall not
knowingly permit any employee, representative, agent or member to deliver
IWRA's customer database file and records to a third party (other than
mailing houses processing such information on behalf of IWRA or Current
Manager) or allow a third party access to IWRA's customer database files and
records. IWRA employs an electronic player tracking system that collects and
stores information about guests and clients of the Gaming Facility,
including, without limitation, gambling preferences, profits and losses and
complimentary arrangements. IWRA's customer
48
database files and records are updated and maintained by IWRA regularly and
shall be updated and maintained by IWRA through the Closing Date in
accordance with past practice.
9.30 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or
warranty by IWRA in this Agreement, nor any document, exhibit, statement,
certificate or schedule heretofore or hereinafter furnished to HBR by IWRA
pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary to make the statements or
facts contained therein not misleading.
9.31 AD VALOREM TAXES. The Real Property has not been classified
under any designation authorized by Law to obtain a special low ad valorem
tax rate or receive an abatement or deferment of ad valorem taxes which, in
such case, will result in additional, catch-up ad valorem taxes in the future
in order to recover the amounts previously abated or deferred. The Real
Property is not currently exempt from ad valorem taxes.
9.32 MECHANIC'S LIENS. No materials have been delivered to, and
no work has been performed on, the Real Property within the last ninety (90)
days for which payment has not been made in full.
9.33 LIENS ON PERSONAL PROPERTY AND INTANGIBLE PROPERTY. Subject
only to the liens set forth on SCHEDULE 9.33 attached hereto and incorporated
herein, IWRA owns the Personal Property and the Intangible Property, and on
the Closing Date, IWRA shall sell and transfer the Personal Property and the
Intangible Property to HBR free and clear of all liens, claims, pledges,
security interests or other encumbrances.
9.34 CONDITION OF PROPERTY. Except as otherwise expressly
provided herein or in any of the Closing documents executed in connection
herewith, IWRA makes no representation or warranty as to the condition of the
Property and HBR is purchasing the Property "AS-IS" and "WITH ALL FAULTS."
9.35 STIPULATED AGREEMENT. Reference is made to that certain
Stipulated Agreement, dated November 9, 1998 (the "STIPULATED AGREEMENT"), by
and between the Administrator of the Iowa Racing and Gaming Commission and
IWRA. In connection with the Stipulated Agreement, IWRA has conducted an
49
investigation which included discussions with Current Manager, General
Manager, licensed engineers and other contractors and professionals relating
to implementing a plan for the modification of the exterior entrances of the
Property to minimize the potential entry into gaming areas of the Property by
underage individuals (the "MODIFICATIONS"). IWRA believes in good faith,
following such investigation, that, in light of prudent business practices
and the effect such Modifications may have upon customer traffic on the
Property, the cost of designing, constructing and implementing reasonable
Modifications that would be acceptable to the Gaming Commission will not
exceed $150,000.00.
10. HBR'S REPRESENTATIONS AND WARRANTIES.
HBR represents and warrants to IWRA, as of the Execution Date and
as of the Closing Date, as follows:
10.1 NO CONFLICTS. Subject to the required approvals and consents
listed on SCHEDULE 10.1 attached hereto and incorporated herein, the
execution and delivery of this Agreement by HBR, the consummation of the
transactions herein contemplated to be performed by HBR, and compliance with
the terms of this Agreement by HBR will not conflict with, or, with or
without notice or the passage of time or both, result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
deed of trust, mortgage, loan agreement, or other document, instrument or
agreement, oral or written, to which HBR is a party or by which HBR is bound,
or any regulation, judgment, order or decree of any Governmental Authority
having jurisdiction over HBR.
10.2 DUE ORGANIZATION; CONSENTS. HBR is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada. All requisite corporate action has been taken by HBR in
connection with entering into this Agreement, and will be taken prior to the
Closing in connection with, the execution and delivery of the instruments
referenced herein and the consummation of the transactions contemplated
hereby. Other than the Consents and such other consents as will be obtained
by HBR prior to the Closing, no consent of any partner, shareholder,
beneficiary, creditor, investor, judicial or administrative body,
Governmental Authority or other party will be required in connection with the
execution by HBR of this Agreement and/or the performance by HBR of its
obligations hereunder.
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10.3 HBR'S AUTHORITY; VALIDITY OF AGREEMENTS. HBR has full right,
power and authority to accept the Property from IWRA as provided in this
Agreement, to carry out its obligations hereunder and to execute, deliver and
perform, and enter into and consummate, all of the documents and transactions
contemplated by this Agreement. The individual(s) executing this Agreement
on behalf of HBR and the instruments referenced herein on behalf of HBR have
the legal power, right and actual authority to bind HBR to the terms hereof
and thereof. This Agreement is, and all other documents and instruments to
be executed and delivered by HBR in connection herewith shall be, duly
authorized, executed and delivered by HBR and shall be valid, binding and
enforceable obligations of HBR, subject to any limitation by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
10.4 LITIGATION. As of the date hereof, there are no
"Proceedings" (as hereinafter defined) before any judicial or quasi-judicial
body, by any Governmental Authority or other third party, pending, or to
HBR's knowledge, threatened, against or affecting HBR and, to HBR's
knowledge, there is no basis for any such Proceeding. No attachments,
execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other Proceedings are pending, or, to HBR's
knowledge, threatened, against HBR.
10.5 CURRENT ASSETS. As of the date hereof, HBR has current
assets of not less than $2,000,000 and shall maintain such assets until the
Closing Date.
11. ADDITIONAL COVENANTS OF IWRA.
In addition to the covenants and agreements of IWRA set forth
elsewhere in this Agreement, IWRA covenants and agrees that:
11.1 GAMING LICENSE AND STATUS. IWRA shall use its best efforts
to (i) maintain in good standing the Gaming License, including, but not
limited to, making all timely filings and paying all fees required for the
continued use of the Gaming License; (ii) maintain IWRA's status as a
nonprofit corporation under all applicable Laws and pursuant to the licensing
requirements set forth in 99B.7 and 99D.8 of the Iowa Code; (iii) continue to
meet all the requirements of a license holder under 99F.7 of the Iowa Code or
any other requirements under applicable Laws and (iv) meet any and all
requirements that may be imposed by the Gaming Commission or any other
Governmental Authority.
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11.2 IWRA'S NONPROFIT STATUS. IWRA will conduct its operations so
as to qualify as a nonprofit corporation organized under the laws of Iowa to
promote those purposes enumerated in section 99B.7, subsection 0, xxxxxxxxx
"x" of the Iowa Code.
11.3 PROMOTION OF GAMING. To the extent permitted by Law, IWRA
shall, and shall use its reasonable best efforts to cause the Foundation, and
each of their respective affiliates, members, directors, and officers to (i)
promote gaming activities in Pottawattamie County, Iowa, including, without
limitation, dog racing, land-based casinos, and riverboat casinos, and (ii)
preserve and advance the relationship between each of IWRA and the Foundation
and the City of Council Bluffs, the County of Pottawattamie, the State of
Iowa and all Governmental Authorities with jurisdiction over gaming
activities. IWRA shall use its reasonable best efforts to support any
measures related to gaming reasonably requested by HBR, including, without
limitation, any law, referendum or xxxx. Except as specifically permitted in
Section 11.4 hereof, IWRA acknowledges that its support or commencement of
any lawsuit challenging the State of Iowa's gaming tax laws would be a
violation of this covenant.
11.4 LITIGATION. Other than any Proceeding commenced by IWRA
against HBR, from and after the date hereof, neither IWRA nor any of its
affiliates, members, directors, and officers or any other entity associated
with IWRA, shall commence or allow to be commenced on its behalf or join in
any Proceeding with respect to all or any portion of the Property, including,
without limitation, any Proceeding regarding the current tax rates applicable
to income generated from riverboat casinos and land-based casinos, without
the prior written consent of HBR, which consent may be withheld in HBR's sole
and absolute discretion. Notwithstanding the foregoing sentence, HBR agrees
that IWRA may join the lawsuit commenced by Racing Association of Central
Iowa against Xxxxxxx Xxxxxxxxxx, Treasurer, State of Iowa, ET. AL, Equity No.
36601; PROVIDED, THAT, IWRA shall (i) only be a passive participant in such
lawsuit, and (ii) use reasonable efforts to avoid and minimize any public
announcements or notices that identify IWRA's participation in such action.
For purposes hereof as a "passive participant," IWRA may: (a) move to
intervene in such lawsuit, (b) file joinders to motions, pleadings and briefs
made by any other party in such lawsuit, (c) appear at all hearings,
depositions and at trial, (d) join in discovery requests made by any other
party in such lawsuit and respond to discovery requests made upon IWRA, (e)
produce evidence and call witnesses at trial to support its case, (f) enter
into stipulations, (g) join in any appeal brought by any other party in such
lawsuit, (h) respond to court orders and subpoenas
52
and (i) file requests for administrative relief if necessary to intervene in
such lawsuit or to execute on any judgement rendered or recover any amounts
awarded in such lawsuit; PROVIDED, FURTHER that as a "passive participant"
IWRA shall not: (x) initiate any dispositive motion (which shall not prohibit
joining in any dispositive motion made by another party or filing a
dispositive motion that is substantially similar to a pending dispositive
motion that was previously filed by another party in such lawsuit), (y)
advance any legal theory or argument which has not already been made by
another party in such lawsuit (which shall not prohibit private discussions
regarding potential legal theories or arguments among the parties to such
litigation or their counsel), or (z) take any action inconsistent with any of
the foregoing.
11.5 GOVERNMENTAL AUTHORITIES. In the event that any Governmental
Authority requires a change to be made to this Agreement, the Lease, the
Management Agreement and/or the transactions as contemplated by such
documents, IWRA hereby agrees to promptly and diligently negotiate in good
faith any such required changes so that neither HBR nor IWRA suffers any
economic detriment of more than $50,000 and each party's business objectives
and economic position as contemplated herein and in the Lease and the
Management Agreement is preserved to the fullest extent possible.
11.6 ACCOUNT FOR INDEMNITY CLAIMS. Commencing on the Closing Date
and continuing through the third (3rd) anniversary of the Closing Date, IWRA
shall maintain a segregated, unencumbered account (the "INDEMNITY ACCOUNT")
containing the maximum amount of funds which are permitted to be held by IWRA
under chapter 504(B) of the Iowa Code and section 99D.8 of the Iowa Code from
fees and other compensation received pursuant to the Sponsorship Agreement
(including any renewal or extension thereof) and any similar agreements or
arrangements IWRA has with other casino owners or operators. Except as
required by applicable Laws, the balance of the Indemnity Account shall not
fall below the funds received by IWRA (net of reasonable operating expenses)
for the most recent 250 days. The Indemnity Account shall be available for
the payment of any claims brought by HBR against IWRA which arise under or in
connection with this Agreement and are agreed upon by IWRA or finally
determined by an arbitrator pursuant to the terms of Section 18.9 hereof
(including, without limitation, Section 16.2 hereof, the Lease, or the
Management Agreement). IWRA hereby acknowledges and agrees that the
Indemnity Account shall not be HBR's sole remedy for claims brought by HBR
against IWRA and that HBR shall be entitled to pursue any remedy available to
it, whether at law or in equity.
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12. ADDITIONAL COVENANTS OF HBR.
12.1 CALCULATION OF THE CAP PAYMENT. If, at any time on or before
December 31, 2006, the State of Iowa sets a gaming tax rate which reduces the
tax applicable to the first $108,540,000 of net casino revenues earned at the
Gaming Facility (the "REDUCED GAMING TAX"), then HBR shall pay to IWRA an
amount (the "CAP PAYMENT") determined as follows:
12.1.1 Calculating the difference between the present tax
attributable to $108,540,000 (that being $38,244,000) and the tax that would
be applicable to $108,540,000 if the Reduced Gaming Tax were applied, and
multiplying said difference by 5.75; and
12.1.2 Subtracting from the amount calculated under Section
12.1.1 above an amount equal to the nominal value of the portion of the
Initial Tax Savings Payment attributable to periods after the effective date
of the Reduced Gaming Tax.
12.2 DELIVERY OF THE CAP PAYMENT. HBR shall deliver any Cap
Payment due hereunder as follows:
12.2.1 If the later of (i) the date that the Reduced Gaming
Tax Rate becomes law, and (ii) the effective date of the Reduced Gaming Tax
Rate, if such date is different than the date set forth in clause (i) (the
"REDUCED GAMING TAX EFFECTIVE DATE"), is prior to January 1, 2001, then, at
IWRA's election, 66.66% of the Cap Payment shall be paid to IWRA in
immediately available funds not later than 180 days after the Reduced Gaming
Tax Effective Date; provided, that if IWRA elects not to offset any amounts
owed pursuant to this Section 12.2.1, such amounts shall accrue interest at
six percent (6%) per annum, and the remaining 33.33% of the Cap Payment
(together with interest on such amount accreting at 6% per annum) shall be
paid to IWRA in immediately available funds when and if HBR is obligated to
pay the Holdback and the Bonus pursuant to Section 2.2 hereof. If IWRA is
not entitled to the Holdback and the Bonus, IWRA shall forfeit 33.33% of the
Cap Payment, together with any interest thereon. If IWRA is required to
reimburse any portion of the Holdback and the Bonus to HBR, IWRA shall also
reimburse at such time 33.33% of the Cap Payment (together with interest on
such amount at a rate of 6% per annum from the date the Holdback and the
Bonus were paid to IWRA to the date of reimbursement).
54
12.2.2 If the Reduced Gaming Tax Effective Date is on or
after January 1, 2001, but prior to January 1, 2002, then, at IWRA's
election, 33.33% of the Cap Payment shall be paid to IWRA in immediately
available funds not later than 180 days after the Reduced Gaming Tax
Effective Date; provided, that if IWRA elects not to offset any amounts owed
pursuant to this Section 12.2.2, such amounts shall accrue interest at six
percent (6%) per annum, and the remaining 66.66% of the Cap Payment (together
with interest on such amount accreting at 6% per annum) shall be paid to IWRA
in immediately available funds when and if HBR is obligated to pay the
Holdback and the Bonus pursuant to Section 2.2 hereof. If IWRA is not
entitled to the Holdback and the Bonus, IWRA shall forfeit 66.66% of the Cap
Payment, together with any interest thereon. If IWRA is required to
reimburse any portion of the Holdback and the Bonus to HBR, IWRA shall also
reimburse at such time 66.66% of the Cap Payment (together with interest on
such amount at a rate of 6% per annum from the date the Holdback and the
Bonus were paid to IWRA to the date of reimbursement).
12.2.3 If the Reduced Gaming Tax Effective Date is on or
after January 1, 2002, then, at IWRA's election, 100% of the Cap Payment
shall be paid to IWRA in immediately available funds not later than 180 days
after HBR is obligated to pay the Holdback and the Bonus pursuant to Section
2.2 hereof; provided, that if IWRA elects not to offset any amounts owed
pursuant to this Section 12.2.3, such amounts shall accrue interest at six
percent (6%) per annum. If IWRA is not entitled to the Holdback and the
Bonus, IWRA shall forfeit 100% of the Cap Payment, together with any interest
thereon. If IWRA is required to reimburse any portion of the Holdback and
the Bonus to HBR, IWRA shall also reimburse at such time 100% of the Cap
Payment (together with interest on such amount at a rate of 6% per annum from
the date the Holdback and the Bonus were paid to IWRA to the date of
reimbursement).
12.3 CERTAIN RIGHTS ASSIGNABLE. Notwithstanding the provisions of
Section 18.6.1 of this Agreement, IWRA may assign its rights to payment of
any amounts payable pursuant to Sections 12.1 and 12.2 to the Foundation,
PROVIDED, that the Foundation shall have executed an agreement to bound by
the terms of Sections 12.1 and 12.2 of this Agreement. Upon receipt of
notice from IWRA that such assignment has occurred, HBR shall make such
payments directly to the Foundation in accordance with Sections 12.1 and 12.2.
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12.4 EQUITABLE ADJUSTMENT. If prior to December 31, 2006, the
State of Iowa makes any further decreases to the effective gaming tax rate,
the parties shall make such payments and equitable adjustments to the terms
hereof as are necessary to effectuate the intent of Sections 2.1(ii) and 12.1
above. If IWRA is not entitled to payment of the Holdback and the Bonus
pursuant to Sections 2.2.1 or 2.2.3, IWRA shall pay HBR an amount equal to
the nominal value of the portion of the Initial Tax Savings Payment
attributable to periods after the Referendum Date.
12.5 GOVERNMENTAL AUTHORITIES. In the event that any Governmental
Authority requires a change to be made to this Agreement, the Lease, the
Management Agreement and/or the transactions as contemplated by such
documents, HBR hereby agrees to promptly and diligently negotiate in good
faith any such required changes so that neither IWRA nor HBR suffers any
economic detriment of more than $50,000 and each party's business objectives
and economic position as contemplated herein and in the Lease and the
Management Agreement is preserved to the fullest extent possible.
12.6 FINANCING. HBR shall use commercially reasonable efforts to
obtain from a lender, as soon as reasonably practicable following the
Execution Date, a commitment letter (the "COMMITMENT LETTER") or a letter
agreeing to utilize its best efforts to syndicate a credit facility to
provide the financing for the transactions contemplated hereunder (the "BEST
EFFORTS LETTER"), each on terms reasonably acceptable to XXX.
00. RISK OF LOSS.
13.1 CONDEMNATION. If, prior to the Closing, all or any "Material
Portion" (as hereinafter defined) is taken by condemnation or eminent domain
(or is the subject of a pending taking which has not been consummated), IWRA
shall immediately notify HBR of such fact. In such event, HBR shall have the
option to terminate this Agreement upon written notice to IWRA given not
later than thirty (30) days after HBR's receipt of such notice from IWRA.
Upon such termination, the parties shall equally share the cancellation
charges, if any, of Escrow Agent and Title Company, and neither party shall
have any further rights or obligations hereunder, other than pursuant to
Sections 4.1.2 and 8.7 and Article 15 hereof, any provision hereof which
expressly survives the termination of this Agreement. HBR shall have no
right to terminate this Agreement as a result of any taking of any portion of
the Property that is not a Material Portion. If HBR does not elect or has no
right to terminate this Agreement, IWRA shall assign and turn over to HBR,
and HBR shall
56
be entitled to receive and keep, all awards for the taking by condemnation
and HBR shall be deemed to have accepted the Property subject to the taking
without reduction in the Consideration. As used herein, the term "MATERIAL
PORTION" shall mean any portion having a value in excess of $100,000.
13.2 CASUALTY. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
hurricane, tornado, flood, landslide, fire or other casualty shall be borne
and assumed by IWRA. If, prior to the Closing any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of
earthquake, hurricane, tornado, flood, landslide, fire or other casualty,
IWRA shall immediately notify HBR of such fact. In such event, HBR shall
have the option to terminate this Agreement upon written notice to IWRA given
not later than thirty (30) days after HBR's receipt of such notice from IWRA.
Upon such termination, the parties shall equally share the cancellation
charges, if any, of Escrow Agent and Title Company, and neither party shall
have any further rights or obligations hereunder, other than pursuant to
Sections 4.1.2 and 8.7 and Article 15 hereof. HBR shall have no right to
terminate this Agreement as a result of any damage or destruction of any
portion of the Property that does not constitute Material Damage. If HBR
does not elect or has no right to terminate this Agreement, IWRA shall assign
and turn over, and HBR shall be entitled to receive and keep, insurance
proceeds relating to damage to the Property (other than any insurance
proceeds with respect to the Gaming Equipment) payable with respect to such
damage or destruction (which shall then be repaired or not at HBR's option
and cost) and HBR shall receive, as a credit against the Consideration, an
amount equal to the deductible amount with respect to the insurance and the
parties shall proceed to the Closing pursuant to the terms hereof without
modification of the terms of this Agreement. If HBR does not elect or has no
right to terminate this Agreement by reason of any casualty, HBR shall have
the right to participate in any adjustment of any insurance claim. As used
herein, the term "MATERIAL DAMAGE" shall mean damage or destruction, the cost
of repair of which exceeds $100,000.
14. REMEDIES.
14.1 DEFAULT BY HBR. In the event that the Escrow and this
transaction fail to close solely as a result of the default of HBR in the
performance of its obligations under this Agreement, then IWRA shall be
entitled to pursue any remedy available to them hereunder, at law or in
equity, excluding the remedy of specific performance.
57
14.2 DEFAULT BY IWRA. In the event that the Closing of the
transactions contemplated in this Agreement does not occur by reason of any
default by IWRA of its obligations under this Agreement, then HBR shall be
entitled to pursue any remedy available to it hereunder, at law or in equity,
including, without limitation, the specific performance of this Agreement.
15. BROKERS.
15.1 IWRA'S BROKER. IWRA hereby represents, warrants to and
agrees with HBR that it has not had, and shall not have, any dealings with
any third party to whom the payment of any broker's fee, finder's fee,
commission or other similar compensation ("COMMISSION") shall or may become
due or payable in connection with the transactions contemplated hereby other
than with XxXxxxxx & Co. (the "BROKER"). IWRA agrees to pay all Commissions
due and payable to the Broker in connection with the transactions
contemplated hereby pursuant to its separate agreement with the Broker. IWRA
shall indemnify, protect, defend and hold HBR harmless from and against any
and all claims, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) incurred
by HBR by reason of any breach or inaccuracy of the representation, warranty
and agreement of IWRA contained in this Section 15.1.
15.2 HBR'S BROKER. HBR hereby represents, warrants to and agrees
with IWRA that it has not had, and shall not have, any dealings with any
third party to whom the payment of any Commission shall or may become due or
payable in connection with the transactions contemplated hereby other than
with Bear Xxxxxxx & Co., Inc. (the "HBR BROKER"). HBR agrees to pay all
Commissions due and payable to the HBR Broker in connection with the
transactions contemplated hereby pursuant to its separate agreement with the
HBR Broker. HBR shall indemnify, protect, defend and hold IWRA harmless from
and against any and all claims, losses, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees, charges and
disbursements) incurred by IWRA by reason of any breach or inaccuracy of the
representation, warranty and agreement of HBR contained in this Section 15.2.
16. INDEMNIFICATION.
16.1 HBR'S INDEMNIFICATION. HBR hereby agrees to indemnify,
protect, defend and hold IWRA harmless from and against, on an after tax
basis, any claim, demand, obligation, loss, cost, damage, liability, judgment
or expense
58
(including, without limitation, reasonable attorneys' fees, charges and
disbursements) (collectively, "CLAIMS") arising out of or in connection with
(a) the breach of any of HBR's representations or warranties set forth herein
or (b) the ownership, operation (including, without limitation, HBR's
obligations with respect to the Transferred Employees (other than HBR's 90
day salary obligation with respect to the General Manager set forth in
Section 4.4.1) or maintenance of the Property by HBR after the Closing,
excluding however, any Claims related to the financial performance of the
Property after the Closing.
16.2 IWRA'S INDEMNIFICATION. IWRA hereby agrees to indemnify,
protect, defend and hold HBR harmless from and against, on an after tax
basis, any Claims arising out of or in connection with (a) the breach of any
of IWRA's representations or warranties set forth herein or (b) the
ownership, operation or maintenance of the Property prior to the Closing.
16.3 FURTHER ASSURANCES. Each party shall do, execute and
deliver, or shall cause to be done, executed and delivered, all such further
acts and instruments which the other party may reasonably request in order to
more fully effectuate the indemnifications provided for in this Agreement.
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS.
17.1 CONFIDENTIALITY. Subject to Section 17.2 below, HBR and IWRA
hereby agree to be bound by that certain Confidentiality and Non-Disclosure
Agreement, dated May 4, 1999 (the "CONFIDENTIALITY AGREEMENT") by and between
Broker, on behalf of IWRA, and Harveys Casino Resorts, the parent company of
HBR. Notwithstanding any provision to the contrary contained in the
Confidentiality Agreement, IWRA hereby agrees that HBR may provide to
prospective lenders any information requested by such lenders in connection
with the transactions contemplated in this Agreement, the Lease and the
Management Agreement, provided, however, that HBR shall cause such
prospective lenders to agree to be bound by the confidentiality provisions
contained in the Confidentiality Agreement with respect to such information
prior to disclosure.
17.2 PUBLIC ANNOUNCEMENTS. Notwithstanding Section 17.1 above,
HBR and IWRA shall consult with the other parties hereto before issuing, and
provide each other the opportunity to review and comment upon, any press
release or other public statements with respect to the transactions
contemplated by this Agreement and shall not issue any such press release or
make any such public statement
59
prior to such consultation. The parties agree that the initial press release
to be issued with respect to the transactions contemplated by this Agreement
shall be in the form heretofore agreed to by the parties.
18. MISCELLANEOUS PROVISIONS.
18.1 GOVERNING LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Iowa, without regard to its
principles of conflicts of law.
18.2 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules attached hereto, together with the Lease, the Management Agreement,
and the Confidentiality Agreement, constitutes the entire agreement between
HBR and IWRA pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, letters of intent, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements, express or implied, made to any party by
any other party in connection with the subject matter hereof except as
specifically set forth herein or in the documents delivered pursuant hereto
or in connection herewith.
18.3 MODIFICATION; WAIVER. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
18.4 NOTICES. All notices, consents, requests, reports, demands
or other communications hereunder (collectively, "NOTICES") shall be in
writing and may be given personally, by registered or certified mail, by
telecopy or by Federal Express (or other reputable overnight delivery
service) as follows:
60
To HBR: HBR Realty Company, Inc.
c/o Harveys Casino Resorts
Xxxxxxx 00 & Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With A Copy To: Xxxxxxxxx & Xxxxxx, Ltd.
Kingsbury Square
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq. and
Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To IWRA: Iowa West Racing Association, Nonprofit Corporation
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Mr. Xxxx Xxxxx
Telephone: (000) 000-0000, ext. 11
Telecopy: (000) 000-0000
With A Copy To: Xxxxxx Law Firm
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
61
To Escrow Fidelity National Title Insurance Company
Agent: 000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or such other Person as the addressee party shall
have last designated by notice to the other parties. All Notices shall be
deemed to have been given when received. All Notices given by telecopy shall
be followed by the delivery of a hard copy of such Notice, provided that such
Notice shall be deemed to have been given when received by telecopy.
18.5 EXPENSES. Subject to the provision for payment of Closing
Costs in accordance with the terms of Section 8.7 hereof and any other
provision of this Agreement, whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses incurred by any
party hereto in connection with this Agreement shall be borne by such party.
18.6 ASSIGNMENT.
18.6.1 IWRA'S RIGHT TO ASSIGN. IWRA shall not have the
right, power or authority to assign all or any portion of this Agreement or
its rights hereunder or to delegate any duties or obligations arising under
this Agreement, voluntarily, involuntarily or by operation of law, without
HBR's prior written consent.
18.6.2 HBR'S RIGHT TO ASSIGN. HBR shall have the right,
power and authority to assign all or any portion of this Agreement or its
rights hereunder or to delegate any duties or obligations arising under this
Agreement, voluntarily, involuntarily or by operation of law, without IWRA's
consent, to any affiliate of HBR; provided, however, that no such assignment
or delegation shall relieve HBR of its obligations or liabilities under this
Agreement.
18.7 SEVERABILITY. Any provision or part of this Agreement which is
invalid or unenforceable in any situation in any jurisdiction shall, as to such
situation and such jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the remaining provisions
hereof or the validity or
62
enforceability of any such provision in any other situation or in any other
jurisdiction.
18.8 SURVIVAL. All representations and warranties made by IWRA in
Article 9, by HBR in Article 10 and all other representations and warranties
to the extent that they relate to the condition of the Property shall survive
the delivery of the Deed and the Closing until the third anniversary of the
Closing Date. The following provisions shall survive the delivery of the
Deed and the Closing: Sections 2.2 (Holdback), 2.3 (Letter of Credit), 2.4
(Allocation of the Consideration), 4.1.2 (HBR's indemnity obligation for
HBR's diligence tests), 4.4 (Transferred and Non-Transferred Employees), 4.11
(Reasonable Efforts), 8.6 (Post Closing Adjustments), 12.1 (Calculation of
the Cap Payment), 12.2 (Delivery of the Cap Payment), 12.3 (Certain Rights
Assignable), 12.4 (Equitable Adjustment), 12.5 (Governmental Authorities),
18.8 (Survival), 18.9 (Arbitration), 18.17 (Post Closing Access to Records),
18.19 (Attorneys' Fees) and Articles 11 (Additional Covenants of IWRA), 14
(Remedies), 15 (Brokers), 16 (Indemnification), and 17 (Confidentiality and
Public Announcements).
18.9 ARBITRATION. Any dispute, controversy or claim arising out
of or relating to this Agreement, the Lease or the Management Agreement, or
the breach, termination or validity hereof or thereof, shall be finally
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect, as modified herein (the
"RULES"). The place of arbitration shall be Omaha, Nebraska. There shall be
three arbitrators, of whom HBR shall appoint one and IWRA shall appoint one
within thirty (30) days of the receipt by the respondent of the demand for
arbitration. The two arbitrators so appointed shall select the chair of the
arbitral tribunal within thirty (30) days of the appointment of the second
arbitrator. If such arbitrator is not appointed within the time limit
provided herein, such arbitrator shall be appointed by the American
Arbitration Association ("AAA") in accordance with the Rules. Any arbitrator
appointed by the AAA shall be an experienced arbitrator who is either a
retired judge or a practicing attorney with no less than fifteen years of
experience with large commercial cases. Any arbitration proceedings,
decision or award rendered hereunder and the validity, effect and
interpretation of this arbitration agreement shall be governed by the Iowa
Arbitration Act, Chapter 679A of the Iowa Code. By agreeing to arbitration,
the parties do not intend to deprive any court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment or other order in aid of
arbitration proceedings and the enforcement of any award. Without prejudice
to such provisional remedies in aid of arbitration as may be available under
the jurisdiction of a court, the arbitral tribunal shall have full authority
to grant provisional remedies and to award damages
63
for the failure of any party to respect the arbitral tribunal's orders to
that effect. Any decision or award rendered hereunder shall be final and
binding on the parties and judgment upon such decision or award may be
entered in any court having jurisdiction thereof.
18.10 SUCCESSORS AND ASSIGNS; THIRD PARTIES. Subject to and
without waiver of the provisions of Section 18.6 hereof, all of the rights,
duties, benefits, liabilities and obligations of the parties shall inure to
the benefit of, and be binding upon, their respective successors and assigns.
Except as specifically set forth or referred to herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or give
to any Person, other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by reason of this
Agreement.
18.11 COUNTERPARTS. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one
and the same instrument.
18.12 HEADINGS. The Section headings of this Agreement are for
convenience of reference only and shall not be deemed to modify, explain,
restrict, alter or affect the meaning or interpretation of any provision
hereof.
18.13 TIME OF ESSENCE. Time shall be of the essence with respect
to all matters contemplated by this Agreement.
18.14 FURTHER ASSURANCES. In addition to the actions recited
herein and contemplated to be performed, executed, and/or delivered by IWRA
and HBR, IWRA and HBR agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered at or after the Closing any and all such
further acts, instruments, deeds and assurances as may be reasonably required
to consummate the transactions contemplated hereby, including, without
limitation, and subject to the Confidentiality Agreement secured pursuant to
Section 17.1, any instruments, and documents as may be reasonably requested
by HBR's lender in the financing of the acquisition of the Property. HBR and
IWRA hereby further agree to make available in a prompt and timely manner any
information requested from the Gaming Commission or any of its duly
authorized representatives.
64
18.15 NUMBER AND GENDER. Whenever the singular number is used,
and when required by the context, the same includes the plural, and the
masculine gender includes the feminine and neuter genders.
18.16 CONSTRUCTION. This Agreement shall not be construed more
strictly against one party hereto than against any other party hereto merely
by virtue of the fact that it may have been prepared by counsel for one of
the parties.
18.17 POST CLOSING ACCESS TO RECORDS. Upon receipt by IWRA of
HBR's reasonable written request at anytime and from time to time within a
period of three (3) years after the Closing, IWRA shall make all of IWRA's
records relating to the Property available to HBR for inspection and copying
(at HBR's sole cost and expense).
18.18 EXHIBITS AND SCHEDULES. All exhibits and schedules attached
hereto are hereby incorporated by reference as though set out in full herein.
18.19 ATTORNEYS' FEES. In the event that any party hereto brings
an action or proceeding against any other party to enforce or interpret any
of the covenants, conditions, agreements or provisions of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover
all reasonable costs and expenses of such action or proceeding, including,
without limitation, attorneys' fees, charges, disbursements and the fees and
costs of expert witnesses.
18.20 BUSINESS DAYS. As used herein, the term "BUSINESS DAY"
shall mean a day that is not a Saturday, Sunday or legal holiday. In the
event that the date for the performance of any covenant or obligation under
this Agreement shall fall on a Saturday, Sunday or legal holiday, the date
for performance thereof shall be extended to the next Business Day.
18.21 AMENDMENT OR SUPPLEMENT. This Agreement may be amended or
supplemented in writing by HBR and IWRA with respect to any of the terms
contained in this Agreement.
[SIGNATURE PAGES FOLLOW.]
65
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
HBR:
HBR REALTY COMPANY, INC.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
IWRA:
IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION,
an Iowa nonprofit corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale
Agreement and Joint Escrow Instructions and agrees to act as Escrow Agent
under this Agreement in strict accordance with its terms.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/ Xxxxx xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
LIST OF EXHIBITS
EXHIBIT "A" LAND PARCEL
EXHIBIT "B" LEASED PROPERTIES
EXHIBIT "C" FORM OF LEASE
EXHIBIT "D" FORM OF MANAGEMENT AGREEMENT
EXHIBIT "E" CONSIDERATION ALLOCATION
EXHIBIT "F" INTENTIONALLY OMITTED
EXHIBIT "G" FORM OF DEED
EXHIBIT "H" FORM OF XXXX OF SALE
EXHIBIT "I" FORM OF NON-FOREIGN AFFIDAVIT
EXHIBIT "J" FORM OF SPONSORSHIP AGREEMENT
EXHIBIT "K" FORM OF OFFICER'S CERTIFICATE
EXHIBIT "L" BLUFFS RUN CASINO Y2K STATUS SHEET
LIST OF SCHEDULES
SCHEDULE 2.1 PRESENT VALUE OF THE GAMING TAX SAVINGS
SCHEDULE 2.3 TERMS OF THE LETTER OF CREDIT
SCHEDULE 5.3 SCHEDULE OF GAMING EQUIPMENT
SCHEDULE 6.1.9 SCHEDULE OF ASSUMED AGREEMENTS
SCHEDULE 6.1.10 SCHEDULE OF DESIGNATED AGREEMENTS
SCHEDULE 9.1 SCHEDULE OF CONTRACTS
SCHEDULE 9.3 SCHEDULE OF LITIGATION
SCHEDULE 9.9 CONSENTS SCHEDULE
SCHEDULE 9.12 SCHEDULE OF LEASES
SCHEDULE 9.24.1 SCHEDULE OF INTELLECTUAL PROPERTY
SCHEDULE 9.25.14 SCHEDULE OF OFFICERS AND KEY EMPLOYEES
SCHEDULE 9.33 SCHEDULE OF LIENS ON PERSONAL PROPERTY AND INTANGIBLE
PROPERTY
SCHEDULE 10.1 SCHEDULE OF REQUIRED APPROVALS & CONSENTS
i
