Exhibit 10.1
PURCHASE, RELEASE, SETTLEMENT
AND INDEMNITY AGREEMENT
Dated August 20, 2001
TABLE OF CONTENTS
Page
1. DESCRIPTION OF STOCK AND MEMBERSHIP INTERESTS TO BE SOLD AS PART OF THE SETTLEMENT.......................5
----------------------------------------------------------------------------------
1.1 OMO Membership Certificate......................................................................5
--------------------------
1.2 River Port Membership Certificate...............................................................6
---------------------------------
1.3 Ozdon Stock.....................................................................................6
-----------
2. PURCHASE PRICE FOR EQUITY INTERESTS; ADDITIONAL CONSIDERATION
-------------------------------------------------------------
........................................................................................................6
2.1 Purchase Price..................................................................................6
--------------
2.1.1 Total..................................................................................6
-----
2.1.2 Allocation.............................................................................7
----------
2.2 Other Consideration.............................................................................7
-------------------
2.3 Adjustment to Purchase Price....................................................................7
----------------------------
2.4 Collateral......................................................................................7
----------
3. REPRESENTATIONS AND WARRANTIES BY GROUP..................................................................8
---------------------------------------
3.1 Recitals........................................................................................8
--------
3.2 Corporate Existence.............................................................................8
-------------------
3.3 Membership Interest.............................................................................8
-------------------
3.4 Title to Equity Interests.......................................................................8
-------------------------
3.5 Capital Structure...............................................................................8
-----------------
3.6 Authorization...................................................................................9
-------------
3.7 Authority and Consents..........................................................................9
----------------------
3.8 Litigation......................................................................................9
----------
3.9 Title to Property and Encumbrances.............................................................10
----------------------------------
3.10 ...............................................................................................10
3.11 Tax Returns....................................................................................10
-----------
3.12 Absence of Undisclosed Liabilities.............................................................10
----------------------------------
3.13 Officers and Employees.........................................................................10
----------------------
3.14 Power of Attorney and Bank Information.........................................................10
--------------------------------------
3.15 Existing Employment Contracts..................................................................10
-----------------------------
4. REPRESENTATIONS AND WARRANTIES OF DON, LOY, RIVER PORT & OMO
------------------------------------------------------------
.......................................................................................................10
4.1 Recitals.......................................................................................11
--------
4.2 Authorizations.................................................................................11
--------------
4.3 Authority and Consents.........................................................................11
----------------------
4.4 Litigation.....................................................................................11
----------
i
5. COVENANTS WITH RESPECT TO INCOMPLETE TRANSACTIONS REPRESENTING CONDITIONS PRECEDENT TO CLOSING..........11
----------------------------------------------------------------------------------------------
5.1 Return of Note.................................................................................11
--------------
5.2 Cancellation of Assignment and Security Agreement..............................................11
-------------------------------------------------
5.3 Cancellation of Subordinated Debenture, Dividends and Stock....................................12
-----------------------------------------------------------
5.4 Instruments 146 shall deliver to NAG...........................................................12
------------------------------------
(a) Stock in NAG..........................................................................12
------------
(b) Lost Stock Affidavits.................................................................13
---------------------
(c) Debentures............................................................................13
----------
(d) Lost Debentures.......................................................................13
---------------
5.5 Instruments NAG shall deliver to 146...........................................................14
------------------------------------
(a) Stock in Ozdon........................................................................14
--------------
(b) Membership Interest in OMO............................................................14
--------------------------
(c) Membership Interest in River Port.....................................................14
---------------------------------
6. RELEASES AND INDEMNITIES................................................................................14
------------------------
6.1 Release and Indemnity Agreements by NAG Group..................................................14
---------------------------------------------
6.1.1 Release Agreements by NAG Releasors...................................................14
-----------------------------------
6.1.2 Unknown Facts.........................................................................15
-------------
6.1.3 Indemnity.............................................................................15
---------
6.1.4 Binding Effect of Releases............................................................16
--------------------------
6.1.5 Legal Advice..........................................................................16
------------
6.2 Release and Indemnity Agreements by 167, 146, Don, Peggy, OMO, River Port, Port
--------------------------------------------------------------------------------
au Prince, and Xxxx (collectively, the "DonLoy Group").........................................16
------------------------------------------------------
6.2.1 Release Agreements by the OMO Releasors...............................................16
---------------------------------------
6.2.2 Unknown Facts.........................................................................17
-------------
6.2.3 Indemnity.............................................................................17
---------
6.2.4 Binding Effect of Releases............................................................17
--------------------------
6.2.5 Legal Advice..........................................................................17
------------
6.3 Additional Indemnification.....................................................................17
--------------------------
6.4 Reservation of Rights..........................................................................17
---------------------
7. CLOSING.................................................................................................18
-------
7.1 Effective Date and Closing Date................................................................18
-------------------------------
7.2 Execution and Delivery of Documents............................................................18
-----------------------------------
(a) NAG and Ed.............................................................................18
----------
(b) OMO...................................................................................20
---
(c) River Port............................................................................21
----------
(d) 146...................................................................................21
---
(e) Don and Xxxxx.........................................................................22
-------------
(f) Ozdon.................................................................................22
-----
(g) Parties...............................................................................22
-------
7.3 Proration of Ad Valorem Real Property Taxes............................................23
-------------------------------------------
7.4 Further Acts....................................................................................23
------------
ii
8. CANCELLATION OF MORTGAGE................................................................................23
------------------------
9. DISMISSAL OF ALL LITIGATION.............................................................................23
---------------------------
10. OZDON REAL PROPERTY TITLE EXAMINATION...................................................................24
-------------------------------------
10.1 Title Commitment and Survey....................................................................24
---------------------------
10.2 Title Review...................................................................................24
------------
11. COVENANTS OF NAG........................................................................................25
----------------
11.1 Ordinary Course................................................................................25
---------------
11.2 Insurance and Property.........................................................................25
----------------------
11.3 Conduct of Business............................................................................25
-------------------
12. INDEMNIFICATION.........................................................................................25
---------------
12.1 Indemnity by NAG Group.........................................................................25
----------------------
12.2 Indemnity by OMO Group.........................................................................26
----------------------
12.3 Conditions of Indemnification..................................................................26
-----------------------------
(a) Notice................................................................................26
------
(b) Defense...............................................................................26
-------
(c) Injunctions...........................................................................26
-----------
12.4 Notice of Other Claims.........................................................................27
----------------------
13. CONDITIONS PRECEDENT TO THE NAG GROUP'S OBLIGATIONS.....................................................27
---------------------------------------------------
13.1 Representations and Warranties of the OMO Group................................................27
-----------------------------------------------
13.2 Litigation.....................................................................................27
----------
13.3 Closing Documents..............................................................................27
-----------------
13.4 No Waiver......................................................................................27
---------
13.5 SEC Approval...................................................................................27
------------
13.6 Performance....................................................................................28
-----------
14. CONDITIONS PRECEDENT TO THE OMO GROUP'S OBLIGATIONS.....................................................28
---------------------------------------------------
14.1 Representations and Warranties of the NAG Group................................................28
-----------------------------------------------
14.2 Performance....................................................................................28
-----------
14.3 No Material Adverse Change.....................................................................28
--------------------------
14.4 No Waiver......................................................................................28
---------
14.5 Closing Documents..............................................................................28
-----------------
14.6 Cure of Timely Objections......................................................................28
-------------------------
14.7 SEC Approval...................................................................................28
------------
15. NOTICES.................................................................................................29
-------
16. MISCELLANEOUS...........................................................................................30
-------------
16.1 Successors.....................................................................................30
----------
iii
16.2 Entire Agreement; Amendments; Waivers..........................................................30
-------------------------------------
16.3 Counterparts...................................................................................31
------------
16.4 Captions.......................................................................................31
--------
16.5 Gender/Singular/Plural.........................................................................31
----------------------
16.6 Governing Law..................................................................................31
-------------
16.7 Severability...................................................................................31
------------
16.8 Survival of Representations....................................................................31
---------------------------
16.9 Further Acts...................................................................................31
------------
16.10 Waiver of Options and Rights of First Refusal..................................................31
---------------------------------------------
iv
PURCHASE, RELEASE, SETTLEMENT AND INDEMNITY AGREEMENT
THIS PURCHASE, RELEASE, SETTLEMENT AND INDEMNITY AGREEMENT (the
"Agreement") is made effective the 20th day of August, 2001 (the "Effective
--------- ---------
Date"), by and among:
----
XXXXXX X. XXXXXXXX, an individual of the full age of majority,
domiciled in the Parish of Pointe Coupee, State of Louisiana, married
to and living with Xxxxxxxx X. Xxxxxxxx, and whose social security
number is ###-##-####, and whose mailing address is 000 Xxxx Xxxx
Xxxxxx, Xxx Xxxxx, Xxxxxxxxx 00000 ("Don"); and
---
XXXXXXXX X. XXXXXXXX, an individual of the full age of majority
domiciled in the Parish of Pointe Coupee, State of Louisiana, married
to and living with Xxxxxx X. Xxxxxxxx, and whose social security number
is ###-##-####, and whose mailing address is 000 Xxxx Xxxx Xxxxxx, Xxx
Xxxxx, Xxxxxxxxx 00000 ("Xxxxx") (Don and Xxxxx are collectively
-----
referred to as the "Xxxxxxxx"); and
--------
XXX X. XXXXXX, an individual of the full age of majority domiciled in
the Parish of Claiborne, State of Louisiana, married to and living with
Xxxxxx Xxxxxx, and whose social security number is ###-##-####, and
whose mailing address is 000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000
("Xxx"); and
---
XXXXXX XXXXXX, an individual of the full age of majority domiciled in
the Parish of Claiborne, State of Louisiana, married to and living with
Xxx Xxxxxx, and whose social security number is ###-##-####, and whose
mailing address is 000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000
("Xxxxxx"); and
------
X. X. XXXXX, XX, an individual of the full age of majority domiciled in
the County of Delaware, State of Oklahoma, married to and living with
Xxxxxx Xxxxx, and whose social security number is ###-##-####, and
whose mailing address is Shangri-la Resort, Vista Towers, Xxxxx,
Xxxxxxxx 00000 ("Ed"); and
--
XXXXXX XXXXX, an individual of the full age of majority domiciled in
the County of Delaware, State of Oklahoma, married to and living with
X. X. Xxxxx, XX, and whose social security number is ###-##-####, and
whose mailing address is Shangri- la Resort, Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 ("Xxxxxx") (Ed and Xxxxxx are collectively referred to
------
as the "Xxxxx"); and
-----
OM OPERATING, L.L.C., a limited liability company organized under the
laws of the State of Louisiana, whose taxpayer identification number is
00-0000000, and whose mailing address is 000 Xxxxxxx 00, Xxxxxxxxxx,
Xxxxxxxxx 00000, represented herein by its only members, Don and 146
("OMO"); and
---
1
NORTH AMERICAN GAMING AND ENTERTAINMENT CORPORATION, a corporation
organized under the laws of the State of Delaware, whose taxpayer
identification number is 00-0000000, and whose mailing address is 00000
Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, represented herein by its
duly authorized President, Xx X. Xxxxx, XX ("NAG"); and
---
RIVER PORT TRUCK STOP, L.L.C., a limited liability company organized
under the laws of the State of Louisiana, whose taxpayer identification
number is 00-0000000, and whose mailing address is 000 Xxxxxxx 00,
Xxxxxxxxxx, Xxxxxxxxx 00000, represented herein by its sole and only
members, Don and 146 ("River Port"); and
----------
XXXXX XXXXX, an individual of the full age of majority domiciled in the
County of Xxxxxxx, State of Kansas, married to and living with Xxxxxxx
X. Xxxxx, and whose social security number is ###-##-####, and whose
mailing address is 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx,
Xxxxxx 00000-0000 ("Xxxxx"); and
-----
PORT AU PRINCE, L.L.C., a Louisiana limited liability company,
organized under the laws of the State of Louisiana, whose taxpayer
identification number is ###-##-####, and whose mailing address is 000
Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx 00000, represented herein by
Xxxx X. Xxxxxx, Xx., its Member ("Port au Prince"); and
--------------
OZDON INVESTMENTS, INC., a corporation organized under the laws of the
State of Louisiana, whose taxpayer identification number is 00-0000000,
and whose mailing address is 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxx
00000, represented herein by its duly authorized President, Xx X.
Xxxxx, XX ("Ozdon"); and
-----
THE 146, L.L.C., a Louisiana limited liability company organized under
the laws of the State of Louisiana, whose taxpayer identification
number is 00-0000000, and whose mailing address is 000 Xxxxxxxxx Xxxxx,
Xxxxx, Xxxxxxxxx 00000, represented herein by Xxx X. Xxxxxx, its
Manager, ("146"); and
---
167 TRUCK STOP, L.L.C., a Louisiana limited liability company organized
under the laws of the State of Louisiana, whose taxpayer identification
number is 00-0000000, and whose mailing address is 000 Xxxxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, represented herein by Xxx X. Xxxxxx, its
Manager, ("167"); and
---
XXXX X. XXXXXX, XX., an individual of the full age of majority,
domiciled in the Parish of Caddo, State of Louisiana, married to and
living with Xxxxxxx Xxxxxx, with whom he is separate in property, and
whose social security number is ###-##-#### and whose mailing address
is 000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx 00000 ("Xxxx").
----
2
The foregoing persons shall be collectively referred to as the "Parties." 146,
-------
Don, Loy, OMO and River Port are sometimes collectively referred to as the "OMO
---
Group." NAG, Ed and Xxxxx are sometimes collectively referred to as the "NAG
----- ---
Group."
-----
BACKGROUND
A. Pursuant to the Release and Settlement Agreement by and among NAG,
Ed, OMO, Don, Loy, River Port, and others dated effective February 2, 1999, and
the Settlement Agreement by and among Xxx, NAG and others dated February 2,
1999, but not effective until March 31, 1999, (these two Settlement Agreements
may sometimes hereinafter be referred to as the "Prior Settlement Agreements"),
---------------------------
the parties thereto agreed to settle their differences which resulted, inter
alia, in the restructuring of the ownership of OMO, River Port, and Ozdon as
follows:
OMO
---
Membership Interests
Member and Sharing Ratios
------ ------------------
Don 51%
NAG 24.5%
146, as assignee 24.5%
River Port
----------
Membership Interests
Member and Sharing Ratios
------ ------------------
Don 50%
NAG 25%
146 25%
Ozdon
-----
Shareholders Stock Interests
------------ ---------------
146 50%
NAG 50%
B. The Prior Settlement Agreements were duly executed and enforceable by
all of the parties appearing therein.
C. A number of the transactions contemplated by the Prior Settlement
Agreements were never completed (the "Incomplete Transactions").
-----------------------
D. Although the Incomplete Transactions were never finalized in writing,
the undersigned acknowledge and agree that they have been duly bound by the
rights and obligations contemplated by the Incomplete Transactions since the
effective dates of the Prior Settlement Agreements and are
3
desirous of finalizing the documentation associated with the Incomplete
Transactions as part of this Settlement Agreement and that completion of the
Incomplete Transactions is a condition precedent to the completion of this
Agreement.
E. On February 4, 2000, 146 and the North Louisiana Group instituted a
lawsuit against NAG styled, "Arlington Farms, et al v. NAG, et al," Case No.
00-106-C-M2, United States District Court, Middle District (the "Arlington Farms
---------------
Litigation") which sought, inter alia, the memorialization and judicial
----------
recognition of the Incomplete Transactions specific to the North Louisiana Group
resulting from the prior Settlement Agreements and lost profits associated with
their ownership in Ozdon resulting from the Prior Settlement Agreements.
F. On August 15, 2000, 146 instituted an action against Ozdon in the
matter styled "The 146, L.L.C. v. Ozdon Investments, Inc.", Docket No. 34,928,
Div. "A", Parish of Pointe Coupee, 00/xx/ Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxx of
Louisiana (the "Opelousas Litigation").
--------------------
G. A notice of a meeting of the members of River Port and OMO was duly
called and convened on March 27, 2000, to address potential mergers whereby OMO
would be merged into DonLoy, L.L.C., with OMO as the surviving company and River
Port would be merged into LoyDon, L.L.C. with River Port being the surviving
company after such merger (the "Disputed Mergers").
----------------
H. The Disputed Mergers were approved by Don and 146 representing 75.5%
and 75% of the membership of OMO and River Port, respectively, on March 27,
2000, over the objection of NAG which claimed that the Disputed Mergers were
invalid because the Disputed Mergers allegedly required the unanimous consent of
the members of OMO and River Port pursuant to their organizational documents.
I. As a result of the Disputed Mergers, NAG's membership interest in
OMO and River Port was allegedly terminated in return for a cash offer of
$375,000.00 for its membership interest in OMO and $50,000.00 for its membership
interest in River Port. NAG never accepted these cash offers.
J. The Disputed Mergers were filed with the Louisiana Secretary of State
on March 28, 2000, and on April 18, 2000, respectively.
K. In light of NAG's disagreement with respect to the approval of the
Disputed Mergers, NAG instituted an action for preliminary injunction and
request for temporary restraining order in the matter styled, "NAG, et al v. Don
-----------------
et al," Civil Action Xx. 00-000, Xxxxxx Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx,
-----
on March 24, 2000 (the "Injunction Litigation").
---------------------
L. On March 24, 2000, the court in the Injunction Litigation denied NAG's
request for temporary restraining order and NAG subsequently filed a motion for
injunctive relief which was set for hearing on May 11, 2000.
4
M. The defendants in the Injunction Litigation, including Don, Loy,
146, OMO, and River Port, filed a motion to dismiss the injunction on grounds,
including but not limited to, the failure of the plaintiffs in the Injunction
Litigation to take advantage of mediation provisions contained in the Operating
Agreement of both OM and River Port. The plaintiffs in the Injunction Litigation
opposed such motion to dismiss. Nevertheless, the court ultimately granted the
motion to dismiss on October 17, 2000 and stayed the Injunction Litigation for a
period of ninety (90) days to provide the parties the opportunity to mediate
their disputes as required by the relevant Operating Agreements. Prior to the
court's order in this regard the plaintiffs and defendants in the Injunction
Litigation filed cross motions for summary judgment on the propriety of the
preliminary injunction which remain before the court.
N. In conjunction with the court's order described above, the parties
entered into settlement negotiations to attempt the complete resolution of their
disputes in the Injunction Litigation as well as the additional lawsuits
described herein which was memorialized in the Term Sheet dated January 5, 2001
(the "Term Sheet"), and of which this Agreement is designed to incorporate so
----------
that all disputes between the parties may be resolved.
O. The undersigned are desirous of settling all disputes between them
arising out of the lawsuits described herein and other matters described above
or related to such matters, except as provided in this Agreement and in
connection with the other Agreements to be executed herewith and the Incomplete
Transactions, and are desirous of releasing any and all claims that each may
have against the other.
P. Arlington Farms, Inc., Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxx Xxxxxx, Xxxxx Xxxxxx, O. P. Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx,
Marry Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx and Xxxxxx (collectively, the
"North Louisiana Group") assigned its rights under the Prior Settlement
---------------------
Agreements to 146.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual releases set forth
herein, the transfers described herein, and the consideration to be paid NAG
hereunder, the parties to this Agreement and the other persons represented by
parties to this Agreement as referred to in this Agreement, do hereby agree as
follows:
1. DESCRIPTION OF STOCK AND MEMBERSHIP INTERESTS TO BE SOLD AS PART
----------------------------------------------------------------
OF THE SETTLEMENT.
-----------------
1.1 OMO Membership Certificate. NAG shall sell to OMO and OMO shall
--------------------------
redeem all of the membership interest sharing ratios of OMO owned by NAG
evidenced by certificate no. 3 issued by OMO representing a 24.5% membership
interest sharing ratio in OMO, as well as all of NAG's rights to receive
consideration under the Disputed Mergers involving OMO (the interests are
referred to as the "OMO Interests"), pursuant to the Act of Redemption in the
-------------
form and substance of Exhibit 1.1 attached hereto (the "OMO Redemption").
----------- --------------
5
1.2 River Port Membership Certificate. NAG shall sell to River Port and
---------------------------------
River Port shall redeem all of the membership interests sharing ratios of River
Port owned by NAG evidenced by certificate no. 3 issued by River Port
representing a 25% membership interest sharing ratio in River Port, as well as
all of NAG's rights to receive consideration under the Disputed Mergers
involving River Port (the interests are referred to as the "River Port
----------
Interests"), pursuant to the Act of Redemption in the form and substance of
---------
Exhibit 1.2 attached hereto (the "River Port Redemption").
----------- ---------------------
1.3 Ozdon Stock. NAG shall sell to OMO all of the issued and
-----------
outstanding stock of Ozdon owned by NAG (the "Ozdon Stock") evidenced by
-----------
certificate no. 13 representing 5,000 shares of the total issued and outstanding
stock of Ozdon pursuant to the Act of Transfer in the form and substance of
Exhibit 1.3 attached hereto (the "Ozdon Stock Sale") (the River Port and OMO
----------- ----------------
Interests and Ozdon Stock shall be hereinafter collectively referred to as the
"Equity Interests").
----------------
2. PURCHASE PRICE FOR EQUITY INTERESTS; ADDITIONAL CONSIDERATION.
-------------------------------------------------------------
2.1 Purchase Price.
--------------
2.1.1 Total. The aggregate purchase price for the Equity Interests to
-----
be paid by OMO and River Port to NAG shall be the sum of Two Million Three
Hundred Thousand and No/100 ($2,300,000.00) Dollars, less the Non-competition
Payments and the adjustments made pursuant to Section 2.3 below (the "Settlement
----------
Purchase Price"), which Settlement Purchase Price shall be payable as follows:
--------------
(a) Cash Portion. The aggregate sum of Eight Hundred Thousand
------------
and No/100 ($800,000.00) Dollars, less (i) the Non-competition
Payments, (ii) the adjustments made pursuant to Section 2.3 below, and
(iii) the deposit in the amount of One Hundred Fifty Thousand and
No/100 ($150,000.00) Dollars previously delivered to NAG for which
credit is being given pursuant to the Term Sheet and the First
Amendment to Term Sheet ("First Amendment") dated April 23, 2001 (the
---------------
"Deposit") shall be delivered to NAG by OMO and River Port, as
-------
applicable, at the Closing in the form of a federal wire transfer to a
bank account designated in writing by NAG or delivery to NAG of a
certified or cashiers check dated at the Closing Date or within one
day prior, payable to the order of NAG.
(b) Notes. The sum of One Million Five Hundred Thousand and
-----
No/100 ($1,500,000.00) Dollars shall be evidenced by OMO's and River
Port's delivery to NAG, at the Closing, of three (3) promissory notes,
two of which shall be made and executed by OMO and one of which shall
be made and executed by River Port, dated the Closing Date, payable to
NAG in the following amounts, respectively, $244,565.00,
$1,222,826.00, and $32,609.00, each bearing interest at New York
Prime, adjusted daily, and payable in sixty (60) monthly installments
of principal and interest. The promissory notes shall be in the form
and substance of Exhibit 2.1(b)(i) (the "OMO Note"), Exhibit
----------------- -------- -------
2.1(b)(ii) (the "Ozdon Note"), and Exhibit 2.1(b)(iii) (the
--------- ---------- ------------------
6
"River Port Note"), attached hereto (hereinafter the OMO Note, the
---------------
Ozdon Note and the River Port Note are collectively referred to as the
"Notes").
-----
2.1.2 Allocation. The total purchase price for the Equity Interests
----------
shall be allocated and paid as follows:
(a) OMO Interests:
-------------
*Cash $130,435.00
OMO Note $244,545.00;
(b) River Port Interests:
--------------------
*Cash $17,391.00
River Port Note $32,609.00; and
(c) Ozdon Stock:
-----------
*Cash $652,174.00
Ozdon Note $1,222,826.00.
*This cash amount shall be adjusted by multiplying this amount by a fraction,
the numerator of which shall be the number of dollars of the net cash portion
determined by Section 2.1.1(a), and the denominator of which shall be 800,000.
2.2 Other Consideration. OMO shall pay NAG and Ed each Five Thousand
-------------------
and No/100 ($5,000.00) Dollars (the "Non-competition Payments") at the Closing
------------------------
in the form of a federal wire transfer to a bank account designated in writing
by NAG and Ed or by delivery to NAG and Ed of a bank certified or cashiers check
dated the closing date or within one day prior, payable to the order of each of
NAG and Ed as payment to each pursuant to the noncompetition agreements in the
form and substance of Exhibit 2.2(a) (NAG) and Exhibit 2.2(b) (Ed).
-------------- --------------
2.3 Adjustment to Purchase Price. The parties agree that the cash
----------------------------
portion of the Settlement Purchase Price will be reduced by the amount by which
the remainder of the sum of all liabilities of Ozdon as of the Conveyance Date
(the "Ozdon Liabilities") including without limitation the indebtedness of Ozdon
-----------------
to Regions Bank as successor to the Spring Hill Bank, less the cash assets of
Ozdon as of the Conveyance Date ("Ozdon Cash") exceeds $125,000, if any, and
shall be increased by the amount by which $125,000 exceeds the remainder of the
amount of the Ozdon Liabilities less the Ozdon Cash. The Ozdon Cash shall be
under the control of OM.
2.4 Collateral. The payment of the Notes shall be secured by: (i) the
----------
granting of a security interest by Don and 146 in and to forty-nine (49%)
percent of the membership interest sharing ratios in OMO, which shall be
evidenced by the execution of a security agreement in the form and substance of
Exhibit 2.1(b)(iv) attached hereto (hereinafter referred to as the "Security
------------------ --------
Agreement"), and (ii)
---------
7
the personal guaranty by Don, Loy, 146, OMO, River Port and Ozdon (collectively
the "Guarantors"). In this regard, the Parties agree that Ozdon may be
----------
liquidated at any time after Closing as long as all of the assets of Ozdon are
distributed to and retained by one or more of the Guarantors or an entity owned
in the majority by one or more of the Guarantors provided that such entity signs
a guaranty in which event Ozdon's guaranty with respect to the Notes shall be
terminated.
3. REPRESENTATIONS AND WARRANTIES BY GROUP.
---------------------------------------
As a material inducement to the OMO Group and Ozdon to execute this
Agreement and to perform or cause the same to be performed, NAG hereby
represents and warrants to each of the OMO Group and Ozdon, that:
3.1 Recitals. The representations regarding facts involving the NAG Group
--------
that are contained in the recitals of this Agreement are true and complete and
are deemed to be representations and warranties made by the NAG Group.
3.2 Corporate Existence. NAG is a corporation duly organized, validly
-------------------
existing and in good standing under the laws of the State of Delaware. Ed has
full authority to execute this Agreement on behalf of NAG.
3.3 Membership Interest. Subject to the effect of the Disputed Mergers
-------------------
and following the consummation of the transactions contemplated under Article 5,
NAG shall be the owner of a 24.5% membership interest in OMO, a 25% membership
interest in River Port and a 50% ownership interest in the issued and
outstanding stock of Ozdon. Except as contemplated by this Agreement, NAG has
not previously assigned or transferred, or granted a security interest in, any
of the Equity Interests or its rights thereunder, nor is it under any
restriction from entering into the transactions contemplated under this
Agreement. After the Ozdon Stock Sale, OMO shall own 50% of the issued and
outstanding stock of Ozdon and 146 shall own 50% of the issued and outstanding
stock of Ozdon.
3.4 Title to Equity Interests. NAG is the owner, beneficially and of
-------------------------
record, of all the Equity Interests, free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions. NAG
has full power to transfer the Equity Interests to Buyer without obtaining the
consent or approval of any other person or governmental authority.
3.5 Capital Structure. The authorized capital stock of Ozdon consists of
-----------------
100,000 shares of common stock, having no par value, of which Ten Thousand
(10,000) shares are issued and outstanding, Five Thousand (5,000) shares are
issued and outstanding to NAG, and 5,000 shares are issued and outstanding to
146. All of the Ozdon Stock is validly issued, fully paid and non- assessable.
There are no outstanding subscriptions, options, rights, warrants, convertible
securities or other agreements or commitments obligating Ozdon to issue or to
transfer from treasury any additional shares of its capital stock of any class.
There is no right of first refusal in favor of any person with respect to the
Ozdon Stock. Sellers have furnished to Buyer for its examination (i) copies of
the Articles of Incorporation and Bylaws of Ozdon; (ii) the minute books of
Ozdon
8
containing all records required to be set forth of all proceedings, consents,
actions and meetings of the stockholders and board of Directors of Ozdon; and
(iii) the stock transfer books of Ozdon setting forth all transfers of any
capital stock.
3.6 Authorization. The execution, delivery and performance of this
-------------
Agreement by NAG and Ed and the consummation of the actions contemplated hereby
have been duly and effectively authorized by the Board of Directors of NAG, but
the shareholders of NAG have yet to approve. The execution by NAG and Ed of this
Agreement and any related agreement or certificate executed in connection
herewith: (a) will not cause either NAG or Ed to violate or contravene (i) any
applicable provision of law, (ii) any rule or regulation of any agency of
government, assuming, for this purpose any required consent of the regulators
has been obtained, or (iii) any order, writ, judgment, injunction, decree,
determination or award; and (b) will not violate or be in conflict with, result
in a breach of, or constitute (with or without notice or lapse of time or both)
a default under the articles of incorporation or bylaws or other corporate
agreements of NAG, any loan or credit agreement, loan agreement, note agreement,
deed of trust, mortgage, pledge, security agreement or other agreement, lease or
other instrument, commitment or arrangement to which any member of the NAG Group
is a party or by which any of the properties, assets or rights of NAG is bound
or affected. Notwithstanding any provision hereof to the contrary, NAG has
informed the other Parties that it will be required to have the sale of the OMO
Interest, River Port Interest and Ozdon Stock approved by its stockholders ("NAG
---
Shareholder Approval"). NAG and Ed represent and warrant that International
--------------------
Tours, Inc. owns sufficient common stock of NAG to assure such approval and Ed,
as Chairman of International Tours, Inc., agrees to vote this stock in favor
hereof. However, NAG will, nonetheless, be required to make appropriate filings
with the SEC and deliver a Proxy Statement or an Information Statement to its
stockholders prior to consummation of the transactions contemplated hereby. The
Parties hereto agree that the Closing shall be extended to such date that will
enable NAG to satisfy SEC regulations and Delaware law regarding stockholder
approval. NAG shall make its best efforts to expedite this process; NAG shall
file its preliminary Proxy Statement or Information Statement with the SEC
within forty-five (45) days after execution by all Parties of this Agreement.
The rent paid by OMO to Ozdon shall be reduced to the amount of the monthly debt
payment to Regions Bank as of the Effective Date.
3.7 Authority and Consents. The NAG Group has the right, power, legal
----------------------
capacity and authority to enter into and perform the obligations under this
Agreement, and the NAG Group believes that no approvals or consents of any
persons other than the undersigned and the shareholders of NAG are necessary in
connection with it.
3.8 Litigation. To the best of the NAG Group's knowledge, except as
----------
disclosed on Schedule 3.8, there is not pending or threatened, any suit, action,
------------
arbitration, or legal, administrative, or other proceeding, or governmental
investigation against or affecting Ozdon or any of its businesses, assets, or
financial condition, nor any circumstances known to exist by the NAG Group which
would give rise to any action, suit or proceeding against Ozdon. Ozdon is not in
default with respect to any order or decree of any such governmental agency or
instrumentality, and Ozdon is not a party to any judgments, orders or decrees
whatever which adversely affect or pertain to its
9
operations or its assets. Ozdon is not presently engaged in any legal action to
recover monies due Ozdon or damages sustained by Ozdon.
3.9 Title to Property and Encumbrances. Ozdon has good, valid and
----------------------------------
marketable title to its assets including without limitation its land and
buildings, subject to no mortgage, pledge, lien, charge, security interest,
encumbrance or restriction of any kind, including without limitation, any
retained interest or security interest of any conditional vendor, except as
disclosed on Schedule 3.9. Ozdon has not heretofore obligated itself to dispose
------------
of or assign any of its assets.
3.10 Financial Statements. Schedule 3.10 sets forth the balance sheet
--------------------
of Ozdon as of July 31, 2001, and the related statement of income and retained
earnings for the seven month period ending on that date (the "Financial
Statements"). The Financial Statements fairly present the financial position of
Ozdon as of the date of the balance sheet included in the Financial Statements
and the results of its operations for the period indicated, and are in all
material respects accurate and complete and correctly reflect the matters shown
therein.
3.11 Tax Returns. All federal and state income tax returns of Ozdon
-----------
have been timely filed and all taxes shown to be due thereon have been paid in
full at the time of filing of such returns.
3.12 Absence of Undisclosed Liabilities. As of the Closing, Ozdon shall
----------------------------------
not have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not expressly set forth on Schedule 3.12, and all such liabilities shall be used
-------------
in the calculation of Ozdon Liability described in Section 2.3.
3.13 Officers and Employees. Schedule 3.13 is a list of the names and
-------------
addresses of all officers, directors, employees and agents of Ozdon, stating the
rates of compensation payable to each as of the effective date of this
Agreement. All such persons shall resign as of the Closing.
3.14 Power of Attorney and Bank Information. Schedule 3.14 lists (i)
-------------------------------------- -------------
the names and addresses of all persons holding a power of attorney on behalf of
Ozdon; and (ii) the names, addresses, and account numbers of all banks or other
financial institutions in which Ozdon has an account, deposit, or safe-deposit
box, with the names of all persons authorized to draw on these accounts or
deposits or to have access to these boxes.
3.15 Existing Employment Contracts. Ozdon is not a party to any written
-----------------------------
or oral collective bargaining agreement or other contracts with any labor union.
Ozdon has no employment contracts, pension, profit sharing or bonus plans for
employees which cannot be terminated by the employer without payment and on not
more than fifteen (15) days' notice.
4. REPRESENTATIONS AND WARRANTIES OF DON, LOY, RIVER PORT & OMO.
-------------------------------------------------------------
As a material inducement to the NAG Group, to execute this Agreement and to
perform or cause the same to be performed, the OMO Group, jointly, severally and
in solido, hereby represent and warrant to NAG and Ed, that:
10
4.1 Recitals. The representations regarding facts involving the OMO Group
--------
that are contained in the recitals of this Agreement are true and complete and
are deemed to be representations and warranties made by the OMO Group.
4.2 Authorizations. The execution by the OMO Group of this Agreement or
--------------
any related agreement or certificate executed in connection herewith: (a) will
not cause the OMO Group to violate or contravene (i) any applicable provision of
law, (ii) any rule or regulation of any agency of government, or (iii) any
order, writ, judgment, injunction, decree, determination or award; and (b) will
not violate or be in conflict with, result in a breach of, or constitute (with
or without notice or lapse of time or both) a default under any loan or credit
agreement, loan agreement, note agreement, deed of trust, mortgage, pledge,
security agreement or other agreement, lease or other instrument, commitment or
arrangement to which the OMO Group is a party or by which any of the properties,
assets or rights of the OMO Group is bound or affected.
4.3 Authority and Consents. The OMO Group has the right, power, legal
----------------------
capacity, and authority to enter into and perform the obligations under this
Agreement.
4.4 Litigation. To the best of the OMO Group's knowledge, except as
----------
disclosed on Schedule 4.4 there is not pending or threatened, any suit, action,
------------
arbitration, or legal, administrative, or other proceeding, or governmental
investigation against or affecting OMO or River Port or any of their businesses,
assets, or financial condition, nor any circumstances known to exist which would
give rise to any action, suit or proceeding against OMO or River Port. OMO and
River Port are not in default with respect to any order or decree of any such
governmental agency or instrumentality, and OMO and River Port are not a party
to any judgments, orders or decrees whatever which adversely affect or pertain
to its operations or its assets. OMO and River Port are not presently engaged in
any legal action to recover monies due OMO and River Port or damages sustained
by OMO and River Port.
5. COVENANTS WITH RESPECT TO INCOMPLETE TRANSACTIONS REPRESENTING CONDITIONS
-------------------------------------------------------------------------
PRECEDENT TO CLOSING.
---------------------
The NAG Group and the OMO Group hereby consent to the consummation of the
following described Incomplete Transactions, and the underlying transactions
evidenced thereby, and hereby agree to execute, where their execution is
necessary as indicated on the document, the following described documents and
certificates, it being undersigned by each that completion of the Incomplete
Transactions is a condition precedent to the Closing:
5.1 Return of Note. NAG shall deliver to Don, the original of the Note
--------------
dated April 15, 1998, in the original principal amount of $4,000,000.00, made by
Don and payable to NAG, which Note shall be marked "Canceled."
5.2 Cancellation of Assignment and Security Agreement. NAG and Don shall
-------------------------------------------------
execute the Cancellation of Assignment and Security Agreement in the form and
substance of Exhibit 5.2 attached hereto (the "Cancellation"), which
----------- ------------
Cancellation shall further cancel the Power of Attorney executed
11
by Don in favor of NAG dated April 15, 1998. NAG shall further deliver to Don,
the original of Membership Interest Certificate number 2 issued by OMO
evidencing the issuance of 51 Sharing Ratios in the name of Xxxxxx X. Xxxxxxxx,
which certificate was pledged under that certain Assignment and Security
Agreement.
5.3 Cancellation of Subordinated Debenture, Dividends and Stock. Don and
-----------------------------------------------------------
Xxxxx shall deliver to NAG an Affidavit of Lost Debenture in the form and
substance of Exhibit 5.3(a) (without bond or insurance being required) with
--------------
respect to that Subordinated Debenture, dated June 10, 1996, in the original
principal amount of $93,900, made by NAG and payable to Don. Don hereby agrees
that no accrued interest thereunder shall be due and payable by NAG. Don and
Xxxxx shall deliver, and shall cause each of P. & X. Xxxxxxxx, L.L.C. ("P&J")
---
and New Orleans Video Poker Company, Inc. ("NOV") to deliver to NAG Lost Stock
---
Affidavits in the form and substance of Exhibit 5.3(b) (Don), Exhibit 5.3(c)
-------------- --------------
(P&J) and Exhibit 5.3(d) (NOV) (without bond or insurance being required)
--------------
representing the shares of common stock of NAG formerly owned by Don (824,000
shares), P&J (1,279,000 shares) and NOV (450,000 shares), respectively, along
with Acts of Redemption evidencing the redemption of such shares in the form and
substance of Exhibit 5.3(e) (Don), Exhibit 5.3(f) (P&J), and Exhibit 5.3(g)
-------------- -------------- --------------
(NOV). Don represents and warrants to NAG that he has the power to cause, and
will cause, each of P&J and NOV to comply with the provisions of this Agreement
and execute the Lost Stock Affidavits and the Acts of Redemption.
5.4 Instruments 146 shall deliver to NAG. 146 shall deliver, or cause the
------------------------------------
delivery of, the following documents to NAG:
(a) Stock in NAG. Stock powers in the form and substance of Exhibit
------------ -------
5.4(a) and original stock certificates for each of those reflected on the
------
following chart. Those holders who are listed below as having lost
certificates shall sign and deliver Lost Stock Affidavits in the form and
substance of Exhibit 5.4(b).
--------------
----------------------------------------------------------------------------
Name of Shareholder Certificate No. No. of Shares
----------------------------------------------------------------------------
Arlington Farms, Inc. C1906 400,000
P 5075 51,480
----------------------------------------------------------------------------
J. Xxxxx Xxxxxx C1452 12,000
C1043 587,000
C1038 50,000
C1040 100,000
C1617 20,000
C1313 7,000
P5053 127,928
----------------------------------------------------------------------------
Xxxxxx X. Xxxxxx C1355 60,041
----------------------------------------------------------------------------
12
----------------------------------------------------------------------------
Name of Shareholder Certificate No. No. of Shares
----------------------------------------------------------------------------
Xxx Xxxxxx C1031 50,000
C1035 100,000
C1352 54,945
C1032 50,000
C1033 100,000
C1034 100,000
C1037 385,000
P5070 101,030
----------------------------------------------------------------------------
Xxx X. Xxxxxx C1012 50,000
P5071 6,435
----------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx C1005 20,000
C1354 60,041*
* lost certificates C1823 16,480*
----------------------------------------------------------------------------
Xxxxxx X. Xxxxxx C1006 20,000
P5049 2,574
----------------------------------------------------------------------------
Xxxx X. Xxxxxxx C1573 220,000
P5062 32,175
----------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx C1572 220,000
P5061 32,175
----------------------------------------------------------------------------
Xxxxx X. Xxxxxxx and C1020 500,000
Xxxx X. Xxxxxxx C1351 154,945
X X TEN P5073 64,350
----------------------------------------------------------------------------
(b) Lost Stock Affidavits. If NAG believes that preferred stock or
---------------------
common stock of NAG was issued to any of the individuals or entities shown on
the foregoing chart in addition to the stock reflected on the chart, then prior
to the Effective Date, NAG shall have provided copies or records of any such
certificates to 146. To the extent NAG produces such documentation, those
individuals which received the certificates that have been lost (as opposed to
previously transferred) shall sign lost stock affidavits with respect to the
lost certificates in the form of Exhibit 5.4(b). If such certificates have been
--------------
previously transferred by the Shareholder, then no action shall be taken.
(c) Debentures. The following subordinated debentures shall be
----------
delivered to NAG by 146:
(a) $37,560 dated 6/10/96 payable to the order of Arlington Farms,
Inc.;
(b) $4,695 dated 6/10/96 payable to the order of Xxx X. Xxxxxx;
(c) $73,711.50 dated 6/10/96 payable to the order of Xxx X. Xxxxxx;
(d) $93,336.60 dated 6/10/96 payable to the order of J. Xxxxx Xxxxxx;
(e) $23,475.00 dated 6/10/96 payable to the order of Xxxxxx X. Xxxxxxx;
(f) $23,475.00 dated 6/10/96 payable to the order of Xxxx X. Xxxxxxx;
and
(g) $46,950.00 dated 6/10/96 payable to the order of Xxxxx X. Xxxxxxx
and Xxxx X. Xxxxxxx.
13
(d) Lost Debentures. If the debentures previously issued to Alyson and
---------------
Xxxxxxx, each in the amount of $1,878.00, have not yet been returned to NAG
prior to the Closing, then, at the closing, Xxxxxx Xxxxxx and Xxxxxxx
Xxxxxx shall execute affidavits of lost debentures in the form and
substance of Exhibit 5.4(c)(i) (Alyson) and Exhibit 5.4(c)(ii) (Xxxxxxx).
---------------- ------------------
5.5 Instruments NAG shall deliver to 146. NAG shall deliver, or cause
------------------------------------
the delivery of, the following documents to 146:
(a) Stock in Ozdon. NAG, 146 and Ozdon shall execute an Act of
--------------
Transfer in the form and substance of Exhibit 5.5(a)(i) (the "Ozdon
----------------- -----
Transfer") dated effective April 1, 1999, and NAG shall execute a Stock
--------
Power in the form and substance of Exhibit 5.5(a)(ii) (the "Ozdon Stock
------------------ -----------
Power"), for the purpose of memorializing the transfer to 146 of 50% of the
-----
issued and outstanding capital stock in Ozdon. In this regard, NAG shall
cancel any and all issued and outstanding stock certificates and shall
provide evidence of such cancellation at the Closing and cause Ozdon to
issue two new stock certificates whereby 146 shall receive 50% of the
issued and outstanding stock of Ozdon and NAG shall receive the remaining
50% of the outstanding capital stock of Ozdon.
(b) Membership Interest in OMO. NAG, OMO and 146 shall execute an Act
--------------------------
of Transfer in the form and substance of Exhibit 5.5(b)(i) (the "OMO
----------------- ---
Transfer") dated effective April 1, 1999, and NAG shall execute a Stock
--------
Power in the form and substance of Exhibit 5.5(b)(ii) (the "OMO Stock
------------------ ---------
Power") transferring one-half of its prior 49% membership interest in OMO
-----
to 146. The original 49% membership interest certificate shall be delivered
by NAG to OMO at the Closing for cancellation. Two new certificates shall
be issued in the place of the original 49% certificate, one to NAG for
24.5% (24.5 Sharing Ratios) and one to 146 for 24.5% (24.5 Sharing Ratios).
(c) Membership Interest in River Port. NAG, River Port and 146 shall
---------------------------------
execute an Act of Transfer in the form and substance of Exhibit 5.5(c)(i)
-----------------
(the "River Port Transfer") dated effective April 1, 1999, and NAG shall
-------------------
execute a Stock Power in the form and substance of Exhibit 5.5(c)(ii) (the
------------------
"River Port Stock Power") transferring one-half of its original 50%
----------------------
membership interest in River Port to 146. A 50% Membership Interest
Certificate shall be issued to NAG by River Port which NAG shall deliver at
the Closing for cancellation. Two new certificates shall be issued in place
of the original 50% interest certificate, one to NAG for 25% and one to 146
for 25%.
6. RELEASES AND INDEMNITIES.
------------------------
6.1 Release and Indemnity Agreements by NAG Group.
---------------------------------------------
6.1.1 Release Agreements by NAG Releasors. Effective at the Closing,
-----------------------------------
except for those liabilities arising under this Agreement or the other
agreements that are attached to this Agreement as Exhibits including without
limitation the documents that evidence the consummation
14
of the Incomplete Transactions, to be executed in connection with this Agreement
(collectively, along with this Agreement, the "Transaction Documents"), the
---------------------
effect which the parties agree shall survive the execution of this Agreement,
members of the NAG Group, individually and on behalf of any other entities that
are owned in whole or controlled by members of the NAG Group (collectively, the
"NAG Releasors"), do hereby, jointly, severally and in solido, release,
------------- -- ------
discharge and acquit Don, Peggy, OMO, River Port, 167, 146, each member of the
North Louisiana Group, Port au Xxxxxx, Xxxx, and together with their respective
shareholders, employees, officers, members, partners, directors, subsidiaries,
insurers, heirs, spouses, successors and assigns (collectively, the "non-NAG
-------
Releasees"), from any and all manner of actions, causes of actions, suits,
---------
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, obligations, claims and demands
whatsoever in law, admiralty or equity, in tort, contract or otherwise, whether
known or unknown, suspected or unsuspected, absolute or contingent, which any of
the NAG Releasors may or might have and/or to which any of the NAG Releasors
ever had, now have or hereafter can, shall or may have for, upon, or by reason
of any matter, cause or thing whatsoever, from the beginning of the world to the
date of this Agreement, including, but not limited to, the following:
All claims made in the following adversarial proceedings:
(a) North American Gaming and Entertainment Corporation vs. OM
Operating, L.L.C., River Port Truck Stop, L.L.C., Xxxxxx X. Xxxxxxxx,
Xxx X. Xxxxxx and The 000, Xxxxx Xxxxxx Xx. XX00-0000X, Xxxxxx Xxxxxx
District Court, Western District of Louisiana, Shreveport Division;
(b) Arlington Farms, Inc., et al vs. North American Gaming and
Entertainment Corporation, X. X. Xxxxx, XX and Xxxxx Xxxxx, Civil
Action No. 00-106-C-M2, United States District Court, Middle District
of Louisiana,
(c) The 146, L.L.C. vs. Ozdon Investments, Inc., Docket No.
34,928, Division "A," Parish of Pointe Coupee, Eighteenth Judicial
District Court, State of Louisiana.
6.1.2 Unknown Facts. Each member of the NAG Releasors acknowledges and
-------------
agrees that there is a risk that the facts in respect to which this Agreement is
made may hereafter prove to be other than or different from the facts as now
known by members of the NAG Releasors, or believed by the members of the NAG
Releasors to be true, and that as a result thereof, the members of the NAG
Releasors may subsequently discover, incur, or suffer claims and/or damages
which were unknown, unsuspected or unanticipated on the execution date hereof
and which, if known, suspected or anticipated on such date may have materially
affected their decision to execute this Agreement. Notwithstanding the
foregoing, however, the members of the NAG Releasors expressly accept the risk
of such claims and/or damages and agree that this Agreement shall, in all
respects, be effective with respect thereto.
15
6.1.3 Indemnity. NAG and Ed shall, jointly, severally and in solido,
---------
indemnify each of the non-NAG Releasees from any and all liability, loss, damage
or expense, including reasonable attorneys' fees, which the non-NAG Releasees
may suffer or incur as a consequence of any attempt by any member of the NAG
Releasors to rescind the releases contained in this Agreement, to have any
provision hereof to be declared invalid, illegal or unenforceable, or otherwise
to pursue any claim, demand, or cause of action against any of the non-NAG
Releasees, except pursuant to those claims that are reserved to Ed, Xxxxx or NAG
hereunder, respectively.
6.1.4 Binding Effect of Releases. The releases by each member of the
--------------------------
NAG Releasors contained in this Agreement shall be binding upon each member of
the NAG Releasors and anyone else deriving or who might hereafter derive any
rights from or through them. Further, each member of the NAG Releasors
acknowledge that it is their obligation to pay their own attorneys' fees and NAG
and Ed agree to hold harmless and indemnify the non-NAG Releasees from and
against any claims for such attorneys' fees which may be due or hereafter
claimed.
6.1.5 Legal Advice. Each member of the NAG Releasors hereby
------------
acknowledges that they are executing this Agreement, including but not limited
to, the releases contained herein, freely and voluntarily after receiving full
advice concerning their rights from legal counsel, and it is not based in any
manner upon representations made to them by any of the other parties hereto.
6.2 Release and Indemnity Agreements by 167, 146, Don, Peggy, OMO, River
--------------------------------------------------------------------
Port, Port au Prince, and Xxxx (collectively, the "DonLoy Group").
-----------------------------------------------------------------
6.2.1 Release Agreements by the OMO Releasors. Effective at the
---------------------------------------
Closing, except for those liabilities arising under this Agreement or the
Transaction Documents, which the parties agree shall survive the execution of
this Agreement, each member of the DonLoy Group, individually and on behalf of
any other entities that are owned in whole or controlled by members of the
DonLoy Group (collectively, the "OMO Releasors"), do hereby, jointly, severally
-------------
and in solido, release, discharge and acquit each member of the NAG Group,
-- ------
together with their respective employees, officers, members, partners,
directors, subsidiaries, insurers, heirs, spouses, successors and assigns
(collectively the "non-OMO Releasees"), from any and all manner of actions,
-----------------
causes of actions, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, obligations,
claims and demands whatsoever in law, admiralty or equity, in tort, contract or
otherwise, whether known or unknown, suspected or unsuspected, absolute or
contingent, which any of the OMO Releasors may or might have and/or to which any
of the OMO Releasors ever had, now have or hereafter can, shall or may have for,
upon, or by reason of any matter, cause or thing whatsoever, from the beginning
of the world to the date of this Agreement, including, but not limited to the
following:
All claims made in the following adversarial proceedings:
(a) North American Gaming and Entertainment Corporation vs. OM
Operating, L.L.C., River Port Truck Stop, L.L.C., Xxxxxx X. Xxxxxxxx,
Xxx X. Xxxxxx
16
and The 000, Xxxxx Xxxxxx Xx. XX00-0000X, Xxxxxx Xxxxxx District
Court, Western District of Louisiana, Shreveport Division;
(b) Arlington Farms, Inc., et al vs. North American Gaming and
Entertainment Corporation, X. X. Xxxxx, XX and Xxxxx Xxxxx, Civil
Action No. 00-106-C-M2, United States District Court, Middle District
of Louisiana,
(c) The 146, L.L.C. vs. Ozdon Investments, Inc., Docket No.
34,928, Division "A," Parish of Pointe Coupee, Eighteenth Judicial
District Court, State of Louisiana.
6.2.2 Unknown Facts. Each member of the OMO Releasors acknowledges and
-------------
agrees that there is a risk that the facts in respect to which this Agreement is
made may hereafter prove to be other than or different from the facts as now
known by the members of the OMO Releasors, or believed by the members of the OMO
Releasors to be true, and that as a result thereof, the members of the OMO
Releasors may subsequently discover, incur, or suffer claims and/or damages
which were unknown, unsuspected or unanticipated on the execution date hereof
and which, if known, suspected or anticipated on such date may have materially
affected their decision to execute this Agreement. Notwithstanding the
foregoing, however, each member of the OMO Releasors expressly accepts the risk
of such claims and/or damages and agrees that this Agreement shall, in all
respects, be effective with respect thereto.
6.2.3 Indemnity. Each member of the OMO Releasors shall jointly,
---------
severally and in solido, indemnify each of the non-OMO Releasees from any and
all liability, loss, damage or expense, including reasonable attorneys' fees,
which the non-OMO Releasees may suffer or incur as a consequence of any attempt
by the OMO Releasors to rescind the releases contained in this Agreement, to
have any provision hereof to be declared invalid, illegal or unenforceable, or
otherwise to pursue any claim, demand, or cause of action against any of the
non-OMO Releasees, except pursuant to those claims that are reserved to such
member of the OMO Releasors hereunder.
6.2.4 Binding Effect of Releases. The releases by each member of the
--------------------------
OMO Releasors contained in this Agreement shall be binding upon the OMO
Releasors and anyone else deriving or who might hereafter derive any rights from
or through them. Further, each member of the OMO Releasors acknowledge that it
is their obligation to pay their own attorneys' fees and agree to hold harmless
and indemnify the non-OMO Releasees from and against any claims for such
attorneys' fees which may be due or hereafter claimed.
6.2.5 Legal Advice. Each member of the OMO Releasors hereby
------------
acknowledges that they are executing this Agreement, including but not limited
to, the releases contained herein, freely and voluntarily after receiving full
advice concerning their rights from their attorneys, and it is not based in any
manner upon representations made to them by any other person.
6.3 Additional Indemnification. As of the Effective Date, Guarantors
--------------------------
shall have obtained the release of NAG, Ed and Xxxxx from their guaranty
obligations to Cotton Port Bank.
17
6.4 Reservation of Rights. Notwithstanding anything to the contrary in
---------------------
this Agreement, each party expressly reserves all rights and any and all claims,
demands, debts, actions, causes of action, rights of indemnification, costs,
expenses and liabilities of whatsoever kind or nature, arising out of the
following:
(a) representations and warranties and obligations contained in this
Agreement; and
(b) the liabilities of the respective Parties arising out of this
Agreement and the other Transaction Documents.
7. CLOSING.
-------
7.1 Effective Date and Closing Date. This Agreement shall be effective
-------------------------------
upon its execution by all of the parties hereto. The escrowed closing is the
date on which, the place where, and the manner in which the documents
transferring ownership of the Equity Interests and the other Transaction
Documents are executed by the parties, and it will be held on August 20, 2001,
at the offices of Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P.,
00/xx/ Xxxxx, Xxx Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx, 00000, or through the
mail if the Parties so agree (the "Escrowed Closing"). The documents signed and
----------------
delivered at the Escrowed Closing shall be held in escrow by Kean, Miller,
Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P. (the "Escrow Agent") pursuant to
------------
the Escrow Agreement in the form and substance of Exhibit 7.1 attached hereto
-----------
(the "Escrow Agreement"). The transactions contemplated by this Agreement and
----------------
the other Transaction Documents shall not become effective until the NAG
Shareholder Approval has been obtained, with respect to which NAG and Ed shall
be subject to the covenants set forth in Section 3.6 of this Agreement, but once
the NAG Shareholder Approval has been obtained, the effective date of the
conveyance of the Equity Interest shall be August 20, 2001 (the "Conveyance
----------
Date"). The "Closing" or "Closing Date" shall be deemed to be the date on which
----
the NAG Shareholder Approval has been obtained. If NAG Shareholder Approval has
not been obtained on or before February 28, 2002, OMO shall be entitled to
rescind the conveyance of the Equity Interests and to obtain all consideration
paid under this Agreement including all of the deposits previously paid and the
cash portion delivered at the Escrowed Closing, and in that event, this
Agreement and the other Transaction Documents shall be null and void and of no
force or effect. Notwithstanding the foregoing, the Parties shall, for all
purposes, treat the conveyance of the Equity Interests as being effective as of
the Conveyance Date. Upon obtaining the NAG Shareholder Approval, NAG shall give
written certification to OMO and to the Escrow Agent of this fact. As set forth
in more detail in the Escrow Agreement, upon receiving this written
certification, Escrow Agent shall deliver the Transaction Documents to the
appropriate parties. As of the Escrowed Closing, NAG shall cause Xxx Xxxxxx and
Xxx Xxxxxxxx to be elected as directors of Ozdon, and as such, Xxx Xxxxxx and
Xxx Xxxxxxxx shall be entitled to appoint officers of Ozdon and grant them the
authority to execute loan documents and incur indebtedness and to grant
collateral to lenders on behalf of Ozdon. NAG, as shareholder of Ozdon, shall
sign any necessary consents.
18
7.2 Execution and Delivery of Documents. At the Escrowed Closing, the
-----------------------------------
parties shall execute and/or deliver as appropriate to the Escrow Agent all
instruments, certificates, and schedules required hereunder including, but not
limited to the following:
(a) NAG and Ed. NAG and Ed shall execute and/or deliver as
----------
appropriate, the following documents and items:
(1) OMO Membership Certificate. NAG shall deliver the original OMO
---------------------------
Membership Certificate described in Section 1.1 hereof evidencing the
-----------
OMO Membership Certificate, duly endorsed in blank and accompanied by
Act of Redemption and Stock Powers (Exhibit 1.1) duly endorsed to OMO,
-----------
in the form for transfer to OMO representing all of the OMO Interests,
free and clear of any pledge, lien, claim, or encumbrance or interest
of any third party;
(2) River Port Membership Certificate. NAG shall deliver the
---------------------------------
original membership certificate described in Section 1.2 hereof
-----------
evidencing the River Port Membership Certificate, duly endorsed in
blank and accompanied by Act of Redemption and Stock Powers (Exhibit
-------
1.2) duly endorsed to River Port, in the form for transfer to River
---
Port, representing all of the River Port Interests, free and clear of
any pledge, lien, claim, encumbrance or interest of any third party;
(3) Ozdon Stock. NAG shall deliver the original stock certificate
-----------
described in Section 1.3 hereof evidencing the Ozdon stock duly
-----------
endorsed in blank and accompanied by Act of Transfer and Stock Powers
(Exhibit 1.3) duly endorsed to OMO, in the form of transfer to OMO,
-----------
representing all of the Ozdon Stock, free and clear of any pledge, lien
claim, or encumbrance or interest of any third party;
(4) NAG's Closing Certificate. The Closing Certificate executed
-------------------------
by NAG in the form and substance of Exhibit 7.2(a)(4) attached hereto;
-----------------
(5) Resignations. A letter of resignation executed by Ed resigning
------------
as an officer and/or member of the Board of Directors of Ozdon as well
as from any other officer or director of Ozdon. These resignations
shall be effective immediately as of August 20, 2001, and shall not be
subject to the Escrow Agreement;
(6) Cancellation. The NAG Mortgage Cancellation. Even in the
------------
event this Agreement is ultimately terminated pursuant to Section 7.1
and of no further force or effect, the NAG Mortgage Cancellation shall
be effective;
(7) Stock Power. The Ozdon Stock Power and the Ozdon Stock Sale
-----------
Stock Power;
(8) OMO Stock Power. The OMO Stock Power and the OMO Redemption
---------------
Stock Power;
19
(9) River Port Stock Power. The River Port Stock Power and the
----------------------
River Port Redemption Stock Power;
(10) New Directors. On August 20, 2001, NAG shall deliver to Xxx
-------------
Xxxxxx and Xxx Xxxxxxxx a written consent of the shareholders of Ozdon
in the form and substance of Exhibit 7.2(a)(10) (the "Shareholder
------------------ -----------
Consent-Directors") pursuant to which the sole shareholders of Ozdon,
-----------------
shall elect Xxx Xxxxxxxx and Xxx Xxxxxx as the sole directors of
Ozdon. NAG agrees that prior to the Closing, it shall take no steps to
alter the composition of the board of directors of Ozdon;
(11) Title Curative Work. Evidence that the title curative work
-------------------
in Section 10.2 has been completed; and
(12) Good Standing. Evidence that Ozdon is in good standing with
-------------
the Louisiana Secretary of State's Office.;
(b) OMO. OMO shall execute and/or deliver as appropriate, and shall
---
cause the execution and delivery of, the following items to NAG:
(1) Purchase Price. Delivery to NAG of the cash portion of the
--------------
purchase price for the OMO Interests and the Ozdon Stock as described
in Section 2.1(a) hereof shall be made of the Escrowed Closing
--------------
(August 20, 2001);
(2) OMO's Resolution. The certified copy of a consent of the
----------------
members of OMO authorizing the transactions contemplated hereunder in
the form and substance of Exhibit 7.2(b)(2) attached hereto;
-----------------
(3) Notes. The OMO Note and the Ozdon Note;
-----
(4) Closing Certificate. The closing certificate executed by OMO
-------------------
in the form and substance of Exhibit 7.2(b)(4) attached hereto;
-----------------
(5) Membership Interest Certificates. Certificates evidencing
--------------------------------
membership interest issued pursuant to the OMO Transfer, evidencing
24.5% (24.5 Units) being issued to each of NAG and 146; and then
canceling the certificate issued to NAG to evidence the OMO
Redemption;
(6) Return of Commercial Guaranties. The originals of the
-------------------------------
following commercial guaranties:
(a) Commercial guaranty executed by A. Xxxxx Xxxxx in favor of
Cottonport Bank in the amount of $750,000.00 dated effective July
1, 1998;
20
(b) Commercial guaranty executed by X. X. Xxxxx, XX in the
amount of $750,000.00 dated effective July 1, 1998 (the original
of this commercial guaranty is missing page 1);
(c) Commercial guaranty executed by North American Gaming and
Entertainment Corporation in favor of River Port Truck Stop,
L.L.C. in the amount of $2,000,000.00 dated effective July 1,
1998; and
(d) Commercial guaranty executed by A. Xxxxx Xxxxx and X. X.
Xxxxx, XX in favor of Cottonport Bank in the amount of
$750,000.00 dated effective December 10, 1998; and
(7) Title and Guaranty. Guaranty agreements in the form and
------------------
substance of Exhibit 7.2(b)(7) shall be executed by Xxx, 000, Xxx,
XXX, Xxxxx Port, 167, and Ozdon.
(c) River Port. River Port shall execute and/or deliver as
----------
appropriate the following items to NAG except as otherwise indicated:
(1) River Port's Resolution. The certified copy of a consent of
-----------------------
the members of River Port authorizing the transactions contemplated
hereunder in the form and substance of Exhibit 7.2(c)(1);
-----------------
(2) Purchase Price. Delivery of the cash portion of the purchase
--------------
price for the River Port Interests;
(3) Note. The River Port Note;
----
(4) Closing Certificate. The closing certificate executed by
-------------------
River Port in the form and substance of Exhibit 7.2(c)(3); and
-----------------
(5) Membership Interest Certificates. Certificates evidencing
--------------------------------
membership interests originally issued to Don (50%- 50 Units) and NAG
(50% - 50 Units); certificates evidencing the River Port Transfer by
cancelling the certificate issued to NAG and issuing certificates to
NAG (25% - 25 Units) and 146 (25% - 25 Units); and then cancelling the
certificate issued to NAG pursuant to the River Port Redemption;
(d) 146. 146 shall execute and/or deliver as appropriate, and shall
----
cause the execution and delivery of, the following items to NAG:
(1) 146's Resolution. A certified copy of a consent of the
----------------
members of 146 authorizing the transactions contemplated hereunder in
the form and substance of Exhibit 7.2(d)(1);
-----------------
21
(2) Closing Certificate. The closing certificate executed by
-------------------
146 in the form and substance of Exhibit 7.2(d)(2);
-----------------
(3) Stock Powers. The Stock Powers to be executed by the North
------------
Louisiana Group pursuant to Section 5.4;
-----------
(4) Lost Stock Affidavit. The Lost Stock Affidavits to be
--------------------
executed by certain members of the North Louisiana Group pursuant to
Section 5.4; and
-----------
(5) Lost Debenture Affidavits. The Lost Debenture Affidavits
-------------------------
to be executed by Alyson and Xxxxxxx pursuant to Section 5.4;
-----------
(e) Don and Xxxxx. Don and Xxxxx shall execute and/or deliver as
-------------
appropriate the following documents and/or items to NAG:
(1) Lost Debenture Affidavit. The Lost Debenture Affidavit to
------------------------
be executed by Don and Xxxxx pursuant to Section 5.3; and
-----------
(2) Lost Stock Affidavits. The Lost Stock Affidavits to be
---------------------
executed by Don, P&J and NOV pursuant to Section 5.3;
-----------
(f) Ozdon. Ozdon shall execute and/or deliver as appropriate the
-----
following documents and/or items to those indicated as follows:
(1) Stock Certificates. Ozdon shall issue stock certificates
------------------
to NAG and 146 to evidence the Ozdon Transfer; and shall issue a stock
certificate to OMO to evidence the Ozdon Stock Sale; and shall cancel
the stock issued to NAG;
(g) Parties. The Parties shall execute and/or deliver as appropriate
-------
the following documents and items to OMO, River Port, Ozdon and NAG, as
appropriate:
(1) Non-competition Agreements. NAG and Ed shall execute the
--------------------------
Non Competition Agreements in the form and substance of Exhibit 2.2(a)
--------------
and Exhibit 2.2(b), respectively, along with OMO and River Port;
--------------
(2) Security Agreement. The Security Agreement described in
------------------
Section 2.1(b) hereof and in the form and substance of Exhibit
-------------- -------
2.1(b)(iv) attached hereto;
----------
(3) Ozdon Transfer. The Ozdon Transfer;
--------------
(4) OMO Transfer. The OMO Transfer;
------------
(5) River Port Transfer. The River Port Transfer;
-------------------
22
(6) OMO Redemption. The OMO Redemption;
--------------
(7) River Port Redemption. The River Port Redemption;
---------------------
(8) Ozdon Stock Sale. The Ozdon Stock Sale;
----------------
(9) Dismissal. The Motion and Order for Dismissal; and
---------
(10) Escrow Agreement. The Escrow Agreement.
----------------
7.3 Proration of Ad Valorem Real Property Taxes. The Ad Valorem real
-------------------------------------------
property taxes for the year 2001 on the immovable property owned by Ozdon
accruing prior to the Closing shall be a liability of Ozdon subject to the
calculation referenced in Section 2.3.
7.4 Further Acts. At the Closing and as may be required from time to time
------------
after the Closing, the Parties shall execute any other instruments of conveyance
and transfer that shall be necessary to effectuate the transactions contemplated
hereunder.
8. CANCELLATION OF MORTGAGE.
------------------------
Ed and Xxxxx currently hold a second mortgage (the "NAG Mortgage") on
------------
certain of the assets of Ozdon. Ed and Xxxxx hereby agree to cancel the NAG
Mortgage provided Cotton Port Bank releases Ed, Xxxxx and NAG from their
guaranties associated with River Port's debt to Cotton Port Bank. In furtherance
thereof, at the Escrowed Closing, Ed and Xxxxx shall execute the Act of
Cancellation in the form and substance of Exhibit 8 (the "NAG Mortgage
--------- ------------
Cancellation").
------------
9. DISMISSAL OF ALL LITIGATION.
---------------------------
The Parties hereto agree that all suits pending against each other shall be
dismissed with prejudice, including without limitation, the following and each
Party shall bear its own court costs with respect to any such litigation:
(a) North American Gaming and Entertainment Corporation vs. OM
Operating, L.L.C., River Port Truck Stop, L.L.C., Xxxxxx X. Xxxxxxxx, Xxx
X. Xxxxxx and The 000, Xxxxx Xxxxxx Xx. XX00-0000X, Xxxxxx Xxxxxx District
Court, Western District of Louisiana, Shreveport Division;
(b) Arlington Farms, Inc., et al vs. North American Gaming and
Entertainment Corporation, X. X. Xxxxx, XX and Xxxxx Xxxxx, Civil Action
No. 00-106-C-M2, United States District Court, Middle District of
Louisiana,
(c) The 146, L.L.C. vs. Ozdon Investments, Inc., Docket No. 34,928,
Division "A," Parish of Pointe Coupee, Eighteenth Judicial District Court,
State of Louisiana.
23
(d) The 146, L.L.C. vs. Ozdon Investments, Inc., Docket No.
00-C-3371, Division "C," Parish of St. Xxxxxx, Twenty-Seventh Judicial
District Court, State of Louisiana.
The matters described in items (a) and (b) have already been dismissed. A
copy of a form of the Motion and Order for Dismissal with respect to the
lawsuits listed above as items (c) and (d) is attached hereto in globo as
Exhibit 9 (the "Motion and Order for Dismissal"). It, too, shall be delivered to
--------- ------------------------------
the Escrow Agent at the Escrowed Closing.
10. OZDON REAL PROPERTY TITLE EXAMINATION.
-------------------------------------
10.1 Title Commitment and Survey. Prior to the Effective Date, OMO, at
---------------------------
its option and at its sole cost and expense, may (a) cause First American Title
Insurance Company ("Title Company") to issue and deliver to OMO a commitment for
-------------
an ALTA owner policy of title insurance to be issued by Title Company (the
"Title Commitment") to Ozdon, accompanied by complete and legible copies of all
----------------
recorded documents (collectively, the "Title Documents") constituting exceptions
---------------
to the title to the land and the improvements thereon purportedly owned by Ozdon
on which the Gold Rush Truck Stop is located (the "Land") and referred to in the
----
Title Commitment, and/or (b) cause OMO to be furnished with a current
on-the-ground survey of the Land (the "Survey") prepared by a professional land
------
surveyor licensed by the State of Louisiana.
10.2 Title Review. At the sole expense of OMO, OMO has delivered to NAG
------------
its objections (together with the basis for such objections), if any, to any
valid exceptions, claims, or defects revealed by the Title Commitment, Title
Documents and/or Survey, which would render Ozdon's title to the Land
unmerchantable or adversely affects the use of the Land for the Intended
Purposes (collectively, the "Title Objections"); provided, however, that (i)
----------------
items shown on Schedule B Part I of the Title Commitment shall automatically be
deemed Title Objections that may be cured or satisfied at any time before or at
the Closing, and (ii) OMO accepts and agrees that the following exceptions shall
not be considered Title Objections, and shall be deemed acceptable to Purchaser
(collectively, the "Permitted Exceptions"): (a) title and zoning restrictions of
--------------------
record or imposed by law or ordinances that will not materially and adversely
affect Ozdon's use of the Land for the Intended Purposes; (b) servitudes and
restrictions of record that will not materially and adversely affect Ozdon's use
of the Land for the Intended Purposes; (c) outstanding mineral rights, provided
the owner thereof does not have the right to use the surface of the Land; and
(d) encroachments not to exceed one (1') foot located from the boundary line of
the Land. In the event OMO has not given NAG written notice thereof prior to the
Effective Date, OMO shall be deemed to have approved the condition of title and
all survey matters as shown in the Title Commitment, Title Documents and Survey,
except for any specific Title Objections timely made by OMO. In the event OMO
does timely and properly make a valid Title Objection, but NAG refuses or is
unable to cure any of the Title Objections prior to Closing, OMO may, at its
option, either (i) accept title and all survey matters subject to the Title
Objections which remain uncured, without an adjustment in the Purchase Price
because of such Title Objections, in which event said Title Objections shall be
deemed to be waived for all purposes, or (ii) terminate this Agreement, giving
written notice thereof to NAG at or prior to the expiration of five (5) days
after NAG has given OMO written notice that it refuses or is unable
24
to cure the Title Objection, in which event this Agreement shall be of no
further force or effect and the parties shall have no further rights or
obligations one to the other hereunder, and NAG shall return to OMO the deposit
NAG received under the Term Sheet. If the notice described in item (ii) is not
timely given, then OMO shall be deemed to have waived its right to object to all
uncured Title Objections and they shall be deemed Permitted Exceptions. Any
exceptions to title or survey matters that are either accepted or waived by
Purchaser as aforesaid shall all be deemed "Permitted Exceptions." The "Intended
-------------------- --------
Purposes" shall be the operation of a duly qualified video poker truck stop
--------
facility. NAG shall cause the following to be canceled prior to the Effective
Date: Notice of Tax Assessment and Lien filed by the Louisiana Department of
Labor against Ozdon Investments, Inc., recorded December 15, 2000, in MOB 1047,
Page 585 under Original Act No. 863677, official records of St. Landry Parish,
Louisiana.
11. COVENANTS OF NAG.
----------------
The NAG Group covenants with the OMO Group that:
11.1 Ordinary Course. At all times prior to the Closing Ozdon will conduct
---------------
its business and activities in its ordinary course of business. Ozdon will not
dispose of or additionally encumber in any manner, or permit to be disposed of
or be additionally encumbered by any act or omission on the part of Ozdon, any
of its assets.
11.2 Insurance and Property. At all times prior to the Closing, Seller
----------------------
will keep all of its insurable assets insured in accordance with present
practice and will maintain, preserve and keep all improvements on its properties
and all equipment, machinery and other personal property in its present
condition and state of repair, reasonable wear excepted.
11.3 Conduct of Business. Prior to the Closing Date, except with the
-------------------
consent of OMO and except as may be required by applicable law, rules or
regulations, Ozdon shall:
(a) conduct its business in substantially the same manner as
presently being conducted, and not enter into any transaction or contract
with respect to its business or its assets taken as a whole;
(b) not (i) enter into or terminate any lease of real estate related
to the Land or as may be required to consummate the transactions
contemplated hereby, (ii) create any liens or other security interests on
the Land, or (iii) waive any rights which in the aggregate are material to
the Land;
(c) not (i) make any material capital expenditure or material
capital expenditure commitment, or (ii) enter into any lease of material
capital equipment as lessee; and
(d) not sell the Land or make any commitment relating to the sale of
the land.
12. INDEMNIFICATION.
---------------
25
12.1 Indemnity by NAG Group. NAG shall indemnify the non-NAG Releasees and
----------------------
hold each of them harmless from, all claims, suits, losses, liabilities, costs,
damages and expenses (including but not limited to reasonable attorney fees,
including attorney fees necessary to enforce their rights to indemnification
hereunder) arising from or resulting by reason of: (a) any adverse and
inaccurate representation made by or on behalf of NAG Group in this Agreement or
any other Transaction Documents; (b) the breach of any of the warranties or
agreements made by or on behalf of the NAG Group in this Agreement or any
Transaction Documents; (c) the breach or default in the performance by the NAG
Group of any of the obligations to be performed by it hereunder or under the
Transaction Documents; (d) any claim by any person that Ozdon is liable for
obligations not considered in the calculation described in Section 2.3; or (e)
-----------
the failure of NAG to have obtained the NAG Shareholder Approval (which, with
respect to this item, the indemnity shall be from NAG and Ed, jointly,
severally, and in solido).
12.2 Indemnity by OMO Group. OMO Group shall indemnify non-OMO Releasees
----------------------
against, and to hold each of them harmless from, all claims, suits, losses,
liabilities, costs, damages and expenses (including but not limited to
reasonable attorney fees, including attorney fees necessary to enforce their
rights to indemnification hereunder) arising from or resulting by reason of: (a)
any adverse and inaccurate representation made by or on behalf of the OMO Group
in this Agreement or any Transaction Documents; (b) the breach or default in the
performance by the OMO Group of any of the obligations or covenants to be
performed by them hereunder or under any Transaction Documents; or (c) any
obligation or liability of Ozdon expressly used in the calculation described in
Section 2.3.
-----------
12.3 Conditions of Indemnification. The obligations and liabilities of the
-----------------------------
indemnifying persons under Section 12.1 and Section 12.2 (the "Indemnitor")
------------ ------------ ----------
above with respect to claims resulting from the assertion of liability by third
parties shall be subject to the following terms and conditions:
(a) Notice. Persons entitled to indemnification under Section 12.1
------ ------------
and Section 12.2 (the "Indemnitee") will give notice of any such claim to
------------
Indemnitor promptly after Indemnitee receives notice thereof, and
Indemnitor will assume the defense thereof by representatives of its own
choosing. However, at all times, Indemnitee shall have the right to
participate in the defense at its expense.
(b) Defense. In the event that Indemnitor, within a reasonable time
-------
after notice of any such claim, but in no event later than ten (10) days
after such notice, fails to defend against such claim (including but not
limited to notifying Indemnitee of the law firm that will be handling such
claim on behalf of Indemnitor, the expected date of response to such claim,
and Indemnitor's potential grounds of defense against such claim),
Indemnitee will, upon notice to Indemnitor, have the right to undertake the
defense at the expense of Indemnitor, compromise or settle such claim on
behalf of and for the account and risk of the Indemnitor, subject to the
right of the Indemnitor to assume the defense of such claim at any time
prior to settlement, compromise or final determination thereof.
26
(c) Injunctions. Anything in this Section 12.3 to the contrary
----------- ------------
notwithstanding, (i) if there is any reasonable probability that a claim
may materially and adversely affect Indemnitee, other than as a result of
money damages or other money payments, Indemnitee shall have the right, at
its cost and expense, to defend compromise or settle such claim, and (ii)
Indemnitor shall not, without the Indemnitee's written consent, settle or
compromise any claim or consent to entry of any judgment which does not
include an unconditional term by which the claimant or the plaintiff gives
to the Indemnitee a full and unconditional release from all liability in
respect of such claim.
12.4 Notice of Other Claims. In the event Indemnitee should have a claim
----------------------
against Indemnitor hereunder that does not involve a third party claim, the
Indemnitee shall notify Indemnitor with reasonable promptness of such claim,
specifying the nature of an specific basis for such claim and the amount of such
claim. Indemnitor shall remit payment for the amount of such claim upon receipt
of an invoice therefor, or in the event of a dispute, Indemnitee and Indemnitor
shall proceed in good faith to negotiate a resolution of such dispute, and if
not resolved through negotiations, such dispute shall be resolved by litigation
in an appropriate court of competent jurisdiction.
13. CONDITIONS PRECEDENT TO THE NAG GROUP'S OBLIGATIONS.
---------------------------------------------------
All obligations of the NAG Group under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
13.1 Representations and Warranties of the OMO Group. All of the
-----------------------------------------------
representations, warranties and covenants of OMO Group contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof or in connection with the transactions contemplated hereby shall be true
in all material respects and shall have been complied with in all material
respects as of the Closing as though made at such time.
13.2 Litigation. No action or proceeding shall have been instituted or
----------
threatened, and no order, decree or judgment of any court, agency, commission or
authority shall be existing questioning the validity of this Agreement or
seeking to restrain the consummation of transactions contemplated by this
Agreement that will render its impossible to consummate the transactions
provided for in this Agreement, provided that such action or proceeding has not
been instituted or threatened by NAG Group (or any party or entity affiliated
with or related to NAG Group), and provided further that no such order, decree
or judgment has resulted from an action or proceeding instituted by NAG Group
(or any party or entity affiliated with or related to NAG Group).
13.3 Closing Documents. At the Closing, the OMO Group shall have
-----------------
delivered or caused to be delivered the documents and items described in
Sections 7.2(b), (c), (d), (e), (f) and (g).
-------------------------------------------
13.4 No Waiver. The NAG Group may waive any or all of these conditions in
---------
whole or in part without prior notice; provided, however, that no such waiver of
a condition shall constitute a waiver by the NAG Group of any of its other
rights or remedies, at law or in equity, if the OMO Group shall be in default of
any of its representations, warranties, or covenants under this Agreement.
27
13.5 SEC Approval. NAG shall have obtained NAG Shareholder Approval
------------
pursuant to Section 3.6.
13.6 Performance. The OMO Group shall have performed and complied with all
-----------
agreements, covenants and conditions required by this Agreement to be performed
or complied with by them prior to or at the Closing.
All of these conditions shall be deemed fulfilled as of August 20, 2001, except
for the condition set forth in Section 13.5.
14. CONDITIONS PRECEDENT TO THE OMO GROUP'S OBLIGATIONS.
---------------------------------------------------
All obligations of the OMO Group under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
14.1 Representations and Warranties of the NAG Group. The representations,
-----------------------------------------------
warranties and covenants of the NAG Group contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof or in
connection with the transactions contemplated hereby shall be true in all
material respects and shall have been complied with in all material respects as
of the Closing as though made at such time.
14.2 Performance. The NAG Group shall have performed and complied with all
-----------
agreements, covenants and conditions required by this Agreement to be performed
or complied with by them prior to or at the Closing.
14.3 No Material Adverse Change. During the period from January 5, 2001,
--------------------------
to the Closing Date, there shall not have been any material adverse change in
the financial condition or the results of operations of Ozdon, and Ozdon shall
have not sustained any material loss or damage to its assets, whether or not
insured.
14.4 No Waiver. The OMO Group may waive any or all of these conditions in
---------
whole or in part without prior notice; provided, however, that no such waiver of
a condition shall constitute a waiver by the OMO Group of any of its other
rights or remedies, at law or in equity, if the NAG Group shall be in default of
any of its representations, warranties, or covenants under this Agreement.
14.5 Closing Documents. The NAG Group shall have executed and delivered
-----------------
or caused to be executed and delivered all of the closing documents that it is
obligated to deliver under Sections 7.2(a) and (g).
----------------------
14.6 Cure of Timely Objections. The Objections or Title Objections
-------------------------
properly and timely made by the OMO Group that are not waived by the OMO Group
pursuant to the terms and provisions of this Agreement shall have been cured.
28
14.7 SEC Approval. NAG shall have obtained NAG Shareholder Approval
------------
pursuant to Section 3.6 on or before February 28, 2002.
All of these conditions shall be deemed fulfilled as of August 20, 2001, except
for the condition set forth in Section 14.7.
15. NOTICES.
-------
Any notice, demand, request, approval, consent or other communication
(collectively, "Notice") concerning this Agreement or any matter arising in
------
connection with this Agreement shall be in writing and addressed as follows:
If to 146, OMO, Don, Peggy, River Port or Ozdon then to:
Xx. Xxxxxx X. Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
Xxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxx 00000
With a copy to:
Mr. G. Xxxxx Xxxxx, Xx.
KEAN, MILLER, HAWTHORNE, D'XXXXXX
XxXXXXX & XXXXXX, L.L.P.
Xxxx Xxxxxx Xxx 0000
Xxxxx Xxxxx, Xxxxxxxxx 00000
If to Xxxx or Port au Prince, then to:
Xxxx X. Xxxxxx, Xx.
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx 00000
With a copy to:
Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
29
If to NAG, Ed or Xxxxx, then to:
North American Gaming and
Entertainment Corporation
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: X. X. Xxxxx, XX
With a copy to:
Xx. Xxxxx X. Xxxxxxx
Cook, Yancey, King & Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
If to Escrow Agent:
Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P.
Xxxx Xxxxxx Xxx 0000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: G. Xxxxx Xxxxx, Xx.
Any notice shall be given by either (i) personal delivery, in which event
it shall be deemed given on the date of delivery, or (ii) certified mail, return
receipt requested, in which event it shall be deemed given three (3) business
days after the date postmarked. Any party may change any address for the
delivery of Notice to such Party by giving notice in accordance with the
provisions of this Article 15.
16. MISCELLANEOUS.
-------------
16.1 Successors. The rights and obligations of the parties under this
----------
Agreement, shall inure to the benefit of and be binding upon the parties and all
persons who succeed to their respective rights and obligations.
16.2 ENTIRE AGREEMENT; AMENDMENTS; WAIVERS. THIS AGREEMENT CONSTITUTES THE
-------------------------------------
ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS
DESCRIBED HEREIN, SUPERSEDING ALL PRIOR NEGOTIATIONS, DISCUSSIONS, AGREEMENTS
AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN RELATING TO THE SUBJECT MATTER
HEREOF. THIS AGREEMENT MAY NOT BE AMENDED AND NO RIGHTS HEREUNDER MAY BE WAIVED
EXCEPT BY WRITTEN DOCUMENT SIGNED BY THE PARTY TO BE CHARGED WITH SUCH AMENDMENT
OR WAIVER. NO WAIVER OF ANY OF THE PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED
OR SHALL CONSTITUTE A WAIVER OF ANY OTHER PROVISIONS HEREOF (WHETHER OR NOT
SIMILAR)
30
NOR SHALL SUCH WAIVER CONSTITUTE A CONTINUING WAIVER UNLESS OTHERWISE EXPRESSLY
PROVIDED.
16.3 Counterparts. This Agreement may be signed in one or more
------------
counterparts or duplicate signature pages with the same force and effect as if
all required signatures were contained in a single original instrument. Any one
or more such counterparts or duplicate signature pages may be removed from any
one or more original copies of this Agreement and annexed to other counterparts
or duplicate signature pages to form a completely executed original instrument.
Each Party shall sign the Agreement and where indicated the other Documents and
forward the original of same to Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx &
Xxxxxx, L.L.P. who will then forward copies of complete sets to all Parties.
16.4 Captions. The captions contained in this Agreement were inserted for
--------
the convenience of reference only. They do not in any manner define, limit or
describe the provisions of this Agreement or the intentions of the parties.
16.5 Gender/Singular/Plural. Whenever masculine, feminine, neuter,
----------------------
singular, plural, conjunctive or disjunctive terms are used in this Agreement,
they shall be construed to read in whatever form is appropriate to be this
Agreement applicable to all the parties and all circumstances, except where the
context of this Agreement clearly dictates otherwise.
16.6 Governing Law. This Agreement was prepared and negotiated in the
-------------
State of Louisiana. In the event of any dispute concerning or arising out of
this Agreement, the laws of the State of Louisiana shall govern without regard
to conflict of law principles thereof and control the construction and
enforcement of this Agreement.
16.7 Severability. In the event that one or more provisions of this
------------
Agreement or the application thereof shall be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions or any other application thereof shall in no way be affected or
impaired.
16.8 Survival of Representations. The agreements, covenants, warranties
---------------------------
and representations of the parties in this Agreement shall survive the execution
of this Agreement.
16.9 Further Acts. As may be required from time to time after January 31,
------------
1999, the Parties shall execute any other instruments or agreements as shall be
necessary to implement the transactions contemplated by this Agreement.
16.10 Waiver of Options and Rights of First Refusal. The Parties consent to
---------------------------------------------
the transactions contemplated by this Agreement and waive any options or rights
of first refusal that they have with respect to the interests being conveyed
hereunder.
31
STATE OF TEXAS
COUNTY OF DALLAS
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Dallas,
Texas, this 9th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Ed:
/s/ X. X. Xxxxx, XX
------------------------------------
X. X. Xxxxx, XX
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
My commission expires: 02-20-2002
------------
32
STATE OF OKLAHOMA
COUNTY OF DELAWARE
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Afton,
Oklahoma, this 8th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Xxxxxx:
/s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxx
------------------
Notary Public
My commission expires: 05-17-2004
------------
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Baton
Rouge, Louisiana, this 20th day of August, 2001, before me, Notary, and the
undersigned competent witnesses, after due reading of the whole.
Don:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
/s/ G. Xxxxx Xxxxx, Xx.
-----------------------
Notary Public
My commission expires: at death
----------
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Baton
Rouge, Louisiana, this 20th day of August, 2001, before me, Notary, and the
undersigned competent witnesses, after due reading of the whole.
Xxxxx:
/s/ Xxxxxxxx X. (Xxxxx) Xxxxxxxx
----------------------------------
Xxxxxxxx X. (Xxxxx) Xxxxxxxx
/s/ G. Xxxxx Xxxxx, Xx.
-----------------------
Notary Public
My commission expires: at death
----------
00
XXXXX XX XXXXXXXXX
XXXXXX OF CLAIBORNE
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Homer,
Louisiana, this 10th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Xxx:
/s/ Xxx X. Xxxxxx
---------------------------------
Xxx X. Xxxxxx
/s/ Xxxxxx Xxxxx
----------------
Notary Public
My commission expires: at death
----------
00
XXXXX XX XXXXXXXXX
XXXXXX OF CLAIBORNE
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Homer,
Louisiana, this 10th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Xxxxxx:
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
-----------------
Notary Public
My commission expires: at death
----------
37
STATE OF TEXAS
COUNTY OF DALLAS
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Dallas,
Texas, this 9th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
NAG:
NORTH AMERICAN GAMING AND
ENTERTAINMENT CORPORATION, a
Delaware corporation
By: /s/ X. X. Xxxxx, XX, President
-------------------------------------
X. X. Xxxxx, XX, President
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
My commission expires: 02-20-2002
------------
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Baton Rouge,
Louisiana, this 20th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
OMO:
OM OPERATING, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxx, Member
/s/ G. Xxxxx Xxxxx, Xx.
-----------------------
Notary Public
My commission expires: at death
---------
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Baton Rouge,
Louisiana, this 20th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
River Port:
RIVER PORT TRUCK STOP, L.L.C.
By: Xxxxxx X. Xxxxxxxx, Member
---------------------------
Xxxxxx X. Xxxxxxxx, Member
/s/ G. Xxxxx Xxxxx, Xx.
----------------------
Notary Public
My commission expires: at death
--------
40
STATE OF KANSAS
PARISH OF XXXXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Shawnee
Mission, Kansas, this 9th day of August, 2001, before me, Notary, and the
undersigned competent witnesses, after due reading of the whole.
Xxxxx:
/s/ Xxxxx Xxxxx
-------------------------
Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Notary Public
My commission expires: 12/19/01
---------
00
XXXXX XX XXXXXXXXX
XXXXXX OF BOSSIER
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Bossier City,
Louisiana, this 17th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Xxxx:
/s/ Xxxx X. Xxxxxx, Xx.
-----------------------
Xxxx X. Xxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Notary Public
My commission expires:__________
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Baton Rouge,
Louisiana, this 20th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
167:
167 TRUCK STOP, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx, Member
----------------------------------
Xxxxxx X. Xxxxxxxx, Member
/s/ G. Xxxxx Xxxxx, Xx.
----------------------
Notary Public
My commission expires: at death
---------
43
STATE OF TEXAS
COUNTY OF DALLAS
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Dallas, Texas,
this 9th day of August, 2001, before me, Notary, and the undersigned competent
witnesses, after due reading of the whole.
Ozdon:
OZDON INVESTMENTS, INC.
By: /s/ X. X. Xxxxx, XX
--------------------------------
X. X. Xxxxx, XX, President
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
My commission expires: 02-20-2002
------------
00
XXXXX XX XXXXXXXXX
XXXXXX OF BOSSIER
THUS DONE, READ AND SIGNED by the undersigned Appearer(s) at Bossier City,
Louisiana, this 17th day of August, 2001, before me, Notary, and the undersigned
competent witnesses, after due reading of the whole.
Port Au Prince:
PORT AU PRINCE, L.L.C.
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------------
Xxxx X. Xxxxxx, Xx., Member
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Notary Public
My commission expires:________
45
