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ASSET PURCHASE AGREEMENT
dated as of October 17, 2000
by and among
Lake Mead Station, Inc.,
a Nevada corporation
("Purchaser"),
Station Casinos, Inc.,
a Nevada corporation
("STN"),
Ameristar Casino Las Vegas, Inc.,
a Nevada corporation
(the "Company"),
and
Ameristar Casinos, Inc.,
a Nevada corporation
("Parent")
with respect to
the assets of
the Company
<page>TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached but is inserted for convenience only.
Page
No.
ASSET PURCHASE AGREEMENT *
ARTICLE I SALE OF ASSETS AND CLOSING
1.01 Assets
*1.02 Liabilities
*1.03 Purchase Price; Allocation
*1.04 Closing
*1.05 Determination of Surplus or Deficiency; Post-Closing Adjustment
*1.06 Prorations
*1.07 Further Assurances; Post-Closing Cooperation
*1.08 Third-Party Consents
*1.09 Insurance Proceeds
*ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND PARENT
*2.01 Corporate Existence
*2.02 Authority
*2.03 No Conflicts
*2.04 Governmental Approvals and Filings
*2.05 Financial Statements and Condition
*2.06 Taxes
*2.07 Legal Proceedings
*2.08 Compliance With Laws and Orders
*2.09 Benefit Plans; ERISA; Labor Matters
*2.10 Real Property
*2.11 Tangible Personal Property
*2.12 Contracts
*2.13 Licenses
*2.14 Affiliate Transactions
*2.15 Environmental Matters
*2.16 Labor Matters
*2.17 Brokers
*2.18 Absence of Certain Changes
*2.19 Sufficiency of and Title to the Assets
*2.20 Insurance
*ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER AND STN
*3.01 Existence
*3.02 Authority
*3.03 No Conflicts
*3.04 Governmental Approvals and Filings
*3.05 Legal Proceedings
*<page>3.06 Brokers
*3.07 Financing
*3.08 Purchaser's Gaming Licenses
*ARTICLE IV COVENANTS OF THE COMPANY AND PARENT
*4.01 Regulatory and Other Approvals
*4.02 HSR Filings
*4.03 Investigation by Purchaser
*4.04 Conduct of Business
*4.05 Certain Restrictions
*4.06 Transition Period.
*4.07 No Acquisition Negotiation
*4.08 Fulfillment of Conditions
*4.09 Noncompetition
*4.10 Title Insurance
*4.11 Delivery of Disclosure Schedule and Diligence Materials
*4.12 No Solicitation
*ARTICLE V COVENANTS OF PURCHASER
*5.01 Regulatory and Other Approvals
*5.02 HSR Filings
*5.03 Investigation by the Company
*5.04 No Solicitation
*5.05 Collection of Gaming Chips and Tokens
*5.06 Baggage
*5.07 Safe Deposits
*5.08 Valet Parking
*5.09 Fulfillment of Conditions
*5.10 Return of Books and Records
*5.11 Parent's Gaming Compliance Program
*ARTICLE VI CONDITIONS TO OBLIGATIONS OF PURCHASER
*6.01 Representations and Warranties
*6.02 Performance
*6.03 Officers' Certificates
*6.04 Orders and Laws
*6.05 Regulatory Consents and Approvals
*6.06 Deliveries
*6.07 Required Consents
*6.08 Title Insurance
*6.09 Absence of Material Adverse Effect
*6.10 Cure of Open Diligence Matters
*ARTICLE VII CONDITIONS TO OBLIGATIONS OF THE COMPANY
*7.01 Representations and Warranties
*7.02 Performance
*7.03 Officers' Certificates
*7.04 Orders and Laws
*7.05 Regulatory Consents and Approvals
*<page>7.06 Deliveries
*7.07 Required Consents
*ARTICLE VIII TAX MATTERS AND POST-CLOSING TAXES
*8.01 Transfer Taxes and Transfer Fees
*8.02 Tax Indemnification
*8.03 Tax Cooperation
*8.04 Notification of Proceedings; Control
*8.05 Gaming Fees and Taxes
*ARTICLE IX EMPLOYEE BENEFITS MATTERS
*9.01 Offer of Employment
*9.02 Welfare Plans -- Claims Incurred; Pre-Existing Conditions
*9.03 Vacation
*9.04 Service Credit
*9.05 Company's Benefit Plans
*9.06 COBRA Matters
*ARTICLE X SURVIVAL; NO OTHER REPRESENTATIONS
*10.01 Survival of Representations, Warranties, Covenants and Agreements
*10.02 No Other Representations
*ARTICLE XI INDEMNIFICATION
*11.01 Other Indemnification
*11.02 Method of Asserting Claim
*11.03 Exclusivity
*ARTICLE XII TERMINATION
*12.01 Termination
*12.02 Effect of Termination
*ARTICLE XIII DEFINITIONS
*13.01 Defined Terms
*13.02 Construction of Certain Terms and Phrases
*ARTICLE XIV MISCELLANEOUS
*14.01 Notices
*14.02 Entire Agreement
*14.03 Expenses
*14.04 Public Announcements
*14.05 Waiver
*14.06 Amendment
*14.07 Confidentiality
*14.08 No Third Party Beneficiary
*14.09 No Assignment; Binding Effect
*14.10 Headings
*14.11 Invalid Provisions
*14.12 Consent to Jurisdiction and Venue
*14.13 Governing Law
*<page>14.14 Attorney's Fees
*14.15 Time of the Essence
*14.16 Counterparts
*ARTICLE XV GUARANTEES
*15.01 Guarantee of the Company's Obligations
*15.02 Guarantee of Purchaser's Obligations
*
Section 1.01(a)(i) Owned Real Property
Section 1.01(a)(ii)(A) Real Property Leases
Section 1.01(a)(ii)(B) Real Property Leases
Section 1.01(a)(v)(A) Personal Property Leases
Section 1.01(a)(v)(B) Personal Property Leases
Section 1.01(a)(vi) Business Contracts
Section 1.01(a)(viii) Business Licenses
Section 1.01(a)(ix) Vehicles
Section 1.01(a)(xiii) Transferred Intellectual Property
Section 2.03 Conflicts
Section 2.04 Governmental Approvals
Section 2.05(a) Financial Statements
Section 2.05(b) Changes in Condition
Section 2.06(a) Tax Liens
Section 2.06(b) Compliance with Tax Laws
Section 2.07 Legal Proceedings
Section 2.08 Compliance with Laws
Section 2.09(a) Benefit Plans
Section 2.09(d) Benefit Accrual
Section 2.09(e) Collective Bargaining Agreements
Section 2.09(f) Terminated Employees
Section 2.10(a) Real Property
Section 2.10(b) Liens
Section 2.12(a) Contracts
Section 2.12(b) Contract Violations
Section 2.13 Licenses
Section 2.15 Environmental Matters
Section 2.18 Certain Changes
Section 3.04 Purchaser's Governmental Approvals
Section 6.07 Required Consents (Purchaser)
Section 7.07 Required Consents (Parent/Company)
EXHIBITS
Exhibit A General Assignment and Bill of Sale
Exhibit B Assumption Agreement
Exhibit C Officer's Certificate of the Company
Exhibit D Secretary's Certificate of the Company
Exhibit E Officer's Certificate of Purchaser
Exhibit F Secretary's Certificate of Purchaser
Exhibit G Intentionally Omitted
Exhibit H Net Current Assets Calculation
Exhibit I Diligence Assumptions
<page>ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT dated as of October 17, 2000 (the "Effective Date") is made and entered into by and among Lake Mead Station, Inc., a Nevada corporation ("Purchaser"), Station Casinos, Inc., a Nevada corporation ("STN "), Ameristar Casino Las Vegas, Inc., a Nevada corporation (the "Company"), and Ameristar Casinos, Inc., a Nevada corporation ("Parent"). Capitalized terms not otherwise defined herein have the meanings set forth in Section 13.01.
WHEREAS, the Company owns and operates that certain hotel and casino facility known as "The Reserve" located in Henderson, Nevada (the "Business"); and
WHEREAS, the Company desires to enter into an agreement to sell, transfer and assign to Purchaser, and Purchaser desires to enter into an agreement to purchase and acquire from the Company, certain of the assets of the Company relating to the operation of the Business, and in connection therewith, Purchaser has agreed to assume certain of the liabilities of the Company relating to the Business, all on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
.
To the extent any of the Business Books and Records are items susceptible to duplication and are either (x) used in connection with any of the Company's or its Affiliates' businesses other than the Business or (y) are required by Law to be retained by the Company or its Affiliates, the Company may deliver photostatic copies or other reproductions from which, in
<page>the case of Business Books and Records referred to in clause (x), information solely concerning the Company's businesses other than the Business has been deleted.
Subject to the terms and conditions hereof, at the Closing, the Assets shall be transferred or otherwise conveyed to Purchaser free and clear of all Liabilities, obligations, liens and encumbrances excepting only Assumed Liabilities and Permitted Liens which shall be payable by Purchaser only to the extent they are Assumed Liabilities.
<page>Las Vegas, Inc.," including any derivative names and related marks, designs or logos, except for the Transferred Intellectual Property;
.
.
. The Closing will take place at the offices of Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, California, or at such other place as Purchaser and the Company mutually agree, at 10:00 A.M. local time and shall be deemed to occur at 11:59 P.M., local time, on the Closing Date (the "Transfer Time"). At the Closing, Purchaser will pay the Estimated Purchase Price by wire transfer of immediately available funds to such accounts as the Company may reasonably direct by written notice delivered to Purchaser at least two (2) Business Days before the Closing Date. Simultaneously, (a) the Company will assign and transfer to Purchaser all of its right, title and interest in and to the Assets (free and clear of all Liens, other than Permitted Liens) by delivery of (i) a General Assignment and Bill of Sale substantially in the form of Exhibit A hereto (the "General Assignment"), duly executed by the Company, (ii) Grant, Bargain and Sale Deeds in proper statutory form for recording and otherwise in form and substance reasonably satisfactory to Purchaser conveying title to the Real Property and (iii) such other good and sufficient instruments of conveyance, assignment and transfer, in form and substance reasonably acceptable to Purchaser's counsel, as shall be effective to vest in Purchaser good title to the Assets (the General Assignment and the other instruments referred to in clauses (ii) and (iii) being collectively referred to herein as the "Assignment Instruments"), and (b) Purchaser will assume from the Company the due payment, performance and discharge of the Assumed Liabilities by delivery of (i) an Assumption Agreement substantially in the form of Exhibit B hereto (the " Assumption Agreement"), duly executed by Purchaser, and (ii) such other good and sufficient instruments of assumption, in form and substance reasonably acceptable to the Company's counsel, as shall be effective to cause Purchaser to assume the Assumed Liabilities as and to the extent provided in Section 1.02(a) (the Assumption Agreement and such other instruments referred to in clause (ii) being
<page>collectively referred to herein as the "Assumption Instruments"). At the Closing, there shall also be delivered to the Company and Purchaser the opinions, certificates and other contracts, documents and instruments required to be delivered under Articles VI and VII.
.
. The following prorations relating to the Assets and the ownership and operation of the Business will be made as of the Transfer Time, with the Company liable to the extent such items relate to any time period prior to the Transfer Time and are Retained Liabilities and Purchaser liable to the extent such items relate to periods beginning with and subsequent to the Transfer Time or are Assumed Liabilities:
Except as otherwise agreed by the parties or with respect to amounts to adjustments to the Purchase Price made pursuant to Section 1.05, the net amount of all such prorations will be settled and paid on the Closing Date. If the Closing shall occur before a real estate tax rate is fixed, the apportionment of taxes shall be based upon the tax rate for the preceding year applied to the latest assessed valuation.
.
<page>books, records and other data to the other party and such other party shall not agree in writing to take possession thereof during the ten (10) day period after such offer is made.
. To the extent that any Real Property Lease, Personal Property Lease, Business Contract or Business License is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. The Company and Purchaser shall use commercially reasonable efforts to obtain the consent of such other party to the assignment of any such Real Property Lease, Personal Property Lease, Business Contract or Business License to Purchaser in all cases in which such consent is required for such assignment, provided, however, that in the event any such consent, other than any required consent of the Commission or any consent that is listed in Section 6.07 of the Disclosure Schedule (each, a "Required Consent"), is not obtained on or prior to the Closing Date, such event shall not cause the Closing to be delayed or constitute a default by the Company of any obligation hereunder or result in a reduction of the Purchase Price. If any such consent, other than a Required Consent, shall not be obtained, the Company shall cooperate with Purchaser in any reasonable arrangement designed to provide for Purchaser the benefits intended to be assigned to Purchaser under the relevant Real Property Lease, Personal Property Lease, Business Contract or Business License, including enforcement at the cost and for the account of Purchaser of any and all rights of the Company against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise, provided that if Purchaser does not receive the benefits intended to be assigned to Purchaser pursuant to a Real Property Lease, Personal Property Lease, Business Contract or Business License because a consent is not obtained and an arrangement transferring such benefit is not entered into, such Real Property Lease, Personal Property Lease, Business Contract or Business License, as applicable, shall constitute an Excluded Asset and the obligations pursuant thereto shall constitute a Retained Liability.
. If any of the Assets is destroyed or damaged or taken in condemnation following the Effective Date, the insurance proceeds or condemnation award with respect thereto shall be an Asset. At the Closing, the Company shall pay or credit to Purchaser any such insurance proceeds or condemnation awards received by it on or prior to the
<page>Closing (along with the amount of any deductible or retention withheld therefrom) and shall assign to or assert for the benefit of Purchaser all of its rights against any insurance companies, Governmental or Regulatory Authorities and others with respect to such damage, destruction or condemnation. As and to the extent that there is available insurance under policies maintained by the Company and its Affiliates, predecessors and successors in respect of any Assumed Liability, except for any such insurance proceeds with respect to which the insured is directly or indirectly self-insured or has agreed to indemnify the insurer, the Company shall cause such insurance to be applied toward the payment of such Assumed Liability.
The Company and Parent hereby jointly and severally represent and warrant to Purchaser as follows as of the Effective Date and as of the Closing Date, except, to the extent any such representation or warranty is made as of a specified date earlier than the Closing Date, such earlier date:
.
. The execution and delivery by the Company of this Agreement, and the performance by the Company and Parent of their obligations hereunder, have been duly and validly authorized by the Board of Directors and the stockholder of the Company and the Board of Directors of Parent, no other action on the part of the Company or Parent or their stockholders being necessary. This Agreement has been duly and validly executed and delivered by the Company and Parent and constitutes a legal, valid and binding obligation of the Company and Parent enforceable against the Company and Parent in accordance with its terms, except to the extent such enforceability (a) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally, and (b) is subject to general principles of equity.
. Except as set forth in Section 2.03 of the Disclosure Schedule, the execution, delivery and performance by the Company of this Agreement do not and the consummation of the transactions contemplated hereby will not:
. Except as disclosed in Section 2.04 of the Disclosure Schedule, no consent, approval, action, order or authorization of, or registration, declaration or filing with or notice to any Governmental or Regulatory Authority on the part of the Company is required in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except (a) where the failure to obtain any such consent, approval or action, to make any such filing or to give any such notice could not reasonably be expected to materially and adversely affect the ability of the Company to consummate the transactions contemplated by this Agreement or to perform its obligations hereunder, or to have a Material Adverse Effect, and (b) those as would be required solely as a result of the identity or the legal or regulatory status of Purchaser or any of its Affiliates.
.
.
. Except as disclosed in Section 2.07 of the Disclosure Schedule, there are no Orders outstanding and no Actions or Proceedings pending or, to the Knowledge of the Company, threatened against, relating to or affecting the Company or any of its Assets which could reasonably be expected individually or in the aggregate to have a Material Adverse Effect, or which seek to enjoin, rescind or otherwise prevent the consummation of the transactions contemplated hereby.
. To the Knowledge of the Company, except as disclosed in Section 2.08 of the Disclosure Schedule or in the filings of Parent with the Securities and Exchange Commission, the Company is not in violation of or in default under any Law or Order applicable to the Company or any of its Assets the effect of which, individually or in the aggregate with other such violations and defaults, could reasonably be expected to have a Material Adverse Effect.
.
<page>present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "Company Plans".
.
<page>Disclosure Schedule there are no existing material defaults by the Company beyond any applicable grace periods under such leases and the Company has not received any notice of default under any of such leases.
. The Company is in possession of and has good title to, or has valid leasehold interests in or valid rights under Contract to use, all tangible personal property used in and individually or in the aggregate with other such property material to the Business or Condition of the Company, except for such tangible personal property sold, consumed or otherwise disposed of in the ordinary course of business since the Financial Statement Date. All tangible Assets, taken as a whole, are in sufficient condition to permit the operation of the Business as it is currently conducted.
.
. As of the Effective Date, the Company has all Licenses required for the conduct of the Business as presently conducted (other than Licenses, the absence of which could not reasonably be expected to have a Material Adverse Effect). Except as set forth
<page>on Section 2.13 of the Disclosure Schedule, each such License is valid, binding and in full force and effect as of the Effective Date. Except as set forth on Section 2.13 of the Disclosure Schedule, to the Knowledge of the Company, as of the Effective Date the Company is not in default (or with the giving of notice or lapse of time or both, would be in default) under any such License in any respect that could reasonably be expected to have a Material Adverse Effect. The Licenses listed in Section 2.13 of the Disclosure Schedule are not transferable.
. There is no Liability between the Company, on the one hand, and any officer, director or Affiliate of the Company, on the other, that will constitute an Assumed Liability.
. Except as disclosed in Section 2.15 of the Disclosure Schedule or as could not be reasonably expected to have a Material Adverse Effect, to the Knowledge of the Company:
. To the Knowledge of the Company, the Company is in compliance in all material respects with all Laws respecting employment and employment practices, terms and conditions of employment and wages and hours.
. Except for Deutsche Bank Securities Inc., whose fees, commissions and expenses are the sole responsibility of the Company, all negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by the Company directly with Purchaser without the intervention of any other Person on behalf of the Company in such manner as to give rise to any valid claim by any Person against Purchaser for a finder's fee, brokerage commission or similar payment.
. Except as set forth in Section 2.18 of the Disclosure Schedule, since the Financial Statement Date, the Business has been conducted in the ordinary course, and there has not been:
. Upon consummation of the transactions contemplated by this Agreement, the Company will have sold, assigned, transferred and conveyed to Purchaser, free and clear of all Liens, other than Permitted Liens, all of the Assets, which constitute all of the properties and assets now held or employed by the Company primarily in connection with the Business (other than the Excluded Assets).
. As of the Effective Date, the assets, properties and operations of the Business are insured under various policies of insurance, all of which are described in Section 2.20 of the Disclosure Schedule, which discloses for each policy the type of coverage and the amounts of coverage. As of the Effective Date, all such policies are in full force and effect, no notice of cancellation has been received, and there is no existing material default, or event which the giving of notice or lapse of time or both, would constitute a material default, by any insured thereunder.
Purchaser and STN hereby, jointly and severally, represent and warrant to the Company as follows as of the Effective Time and as of the Closing Date, except, to the extent any such representation or warranty is made as of a specified date earlier than the Closing Date, such earlier date:
. Purchaser is a corporation duly organized, validly existing and in good standing under the Laws of the State of Nevada. STN is a corporation duly organized, validly existing and in good standing under the Laws of the State of Nevada. Each of Purchaser and STN has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
. The execution and delivery by Purchaser and STN of this Agreement, and the performance by Purchaser and STN of their respective obligations hereunder, have been duly and validly authorized by the respective boards of directors of Purchaser and STN, no other corporate action on the part of Purchaser or STN or their respective shareholders being necessary. This Agreement has been duly and validly executed and delivered by each of Purchaser and STN and constitutes a legal, valid and binding obligation of each of Purchaser and STN enforceable against each of them in accordance with its terms, except to the extent such enforceability (a) may be limited by bankruptcy, insolvency, reorganization,
<page>moratorium or other similar laws relating to creditors' rights generally and (b) is subject to general principles of equity.
. The execution and delivery by each of Purchaser and STN of this Agreement do not and the consummation of the transactions contemplated hereby will not:
. Except as disclosed in Section 3.04 of the Disclosure Schedule, no consent, approval, action, order or authorization of, or registration, declaration or filing with or notice to any Governmental or Regulatory Authority on the part of Purchaser or STN is required in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, except where the failure to obtain any such consent, approval or action, to make any such filing or to give any such notice could not reasonably be expected to adversely affect the ability of Purchaser or STN to consummate the transactions contemplated by this Agreement or to perform its obligations hereunder.
. There are no Orders outstanding and no Actions or Proceedings pending or, to the Knowledge of Purchaser or STN, as applicable, threatened against, relating to or affecting Purchaser or STN, as the case may be, which could reasonably be expected to result in the issuance of an Order restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement.
. Except for Wasserstein Perella & Co., whose fees, commissions and expenses are the sole responsibility of Purchaser and/or STN, all negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Purchaser and
<page>STN without the intervention of any Person on behalf of Purchaser or STN in such manner as to give rise to any valid claim by any Person against the Company for a finder's fee, brokerage commission or similar payment.
. As of the Effective Date, Purchaser has sufficient cash and/or available credit facilities (and has provided the Company with evidence thereof) to pay the Purchase Price and to make all other necessary payments of fees and expenses in connection with the transactions contemplated by this Agreement.
. STN and its directors and executive officers are currently licensed or hold findings of suitability to conduct gaming activities in the State of Nevada.
The Company and Parent covenant and agree with Purchaser that, at all times from and after the Effective Date until the Closing, and in the case of Sections 4.06 and 4.09 for the period set forth therein, Parent and the Company will, and Parent will cause the Company to, comply with all covenants and provisions of this Article IV, except to the extent Purchaser may otherwise consent in writing.
. The Company will, as promptly as reasonably practicable (a) take all commercially reasonable steps necessary or desirable to obtain all consents, approvals, actions, orders or authorizations of, or make all registrations, declarations or filings with and give all notices to Governmental or Regulatory Authorities or any other Person required of the Company to consummate the transactions contemplated hereby (including, without limitation, the Required Consents), (b) provide such other information and communications to such Governmental or Regulatory Authorities or other Persons as such Governmental or Regulatory Authorities or other Persons may reasonably request in connection therewith and (c) provide reasonable cooperation to Purchaser in connection with the performance of its obligations under Sections 5.01 and 5.02 below. The Company will provide, or cause to be provided, notification to Purchaser when any such consent, approval, action, order, authorization, registration, declaration, filing or notice referred to in clause (a) above is obtained, taken, made or given, as applicable, and will advise Purchaser of any communications (and, unless precluded by Law, provide copies of any such communications that are in writing) with any Governmental or Regulatory Authority or other Person regarding any of the transactions contemplated by this Agreement.
. In addition to and not in limitation of the Company's covenants contained in Section 4.01 above, the Company will (a) take promptly all actions necessary to make the filings required of the Company or its Affiliates under the HSR Act, (b) comply at the earliest practicable date with any request for additional information received by the Company or its Affiliates from the Federal Trade Commission or the Antitrust Division of the Department of Justice pursuant to the HSR Act and (c) cooperate with Purchaser in
<page>connection with Purchaser's filing under the HSR Act and in connection with resolving any investigation or other inquiry concerning the transactions contemplated by this Agreement commenced by either the Federal Trade Commission or the Antitrust Division of the Department of Justice or state attorneys general.
. The Company will (a) provide Purchaser and its officers, employees, counsel, accountants, financial advisors, consultants and other representatives (together, "Representatives") with full access, upon reasonable prior notice and during normal business hours, to all officers, employees, agents and accountants of the Company and its Assets and Books and Records, but only to the extent that such access does not unreasonably interfere with the business operations of the Company and (b) furnish Purchaser and such other Persons with all such information and data (including, without limitation, copies of Contracts, Benefit Plans and other Books and Records) concerning the business and operations of the Company as Purchaser or any of such other Persons reasonably may request in connection with such investigation, except to the extent that furnishing any such information or data would violate any Law, Order, Contract or License applicable to the Company or by which any of its Assets is bound.
. Subject to Section 4.05 below, the Company will conduct business only in the ordinary course consistent with past practice and shall:
. The Company shall not:
. From and after the Effective Date, neither the Company nor Parent shall, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party (i) solicit, initiate, or encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries
<page>or proposals that constitute, or could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets, sale of shares of capital stock (including, without limitation, by way of a tender or exchange offer) or similar transaction involving the Company or the Business, other than the transactions contemplated by this Agreement (an "Acquisition Proposal"), (ii) engage in negotiations or discussions with any person (or group of persons) other than Purchaser or its affiliates (a "Third Party") concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal, (iii) continue any prior discussions or negotiations with any Third Party concerning any Acquisition Proposal or (iv) accept, or enter into any agreement concerning, any Acquisition Proposal with any Third Party or consummate any Acquisition Proposal other than as contemplated by this Agreement.
. The Company (a) will execute and deliver at the Closing each certificate, document and instrument that the Company is hereby required to execute and deliver as a condition to Closing, (b) will take all commercially reasonable steps necessary or desirable and proceed diligently and in good faith (i) to satisfy each condition to the obligations of Purchaser contained in this Agreement and (ii) to consummate all of the transactions contemplated by this Agreement, and (c) will not take or fail to take any action that could reasonably be expected to result in the nonfulfillment of any obligation of the Company or Purchaser contained in this Agreement.
.
<page>and the Competing Group. For purposes of this Agreement, "Currently Existing Gaming Operation" shall mean a gaming operation that is owned or operated by third parties prior to the acquisition of ownership or commencement of operations thereof by the Company, Parent or their Affiliates, and "Gaming Business" shall mean the operation of an establishment engaged in unrestricted gaming, as such term is defined by the Commission as of the date hereof. Each of the Company and Parent also hereby covenants that it shall not, for a period of eighteen (18) months after the Closing Date, solicit or encourage any employee (other than a Retained Employee), agent, consultant or independent contractor of Purchaser to terminate or curtail his or her relationship with Purchaser.
<page>Property is located, with an endorsement deleting any exclusion or exception for creditors' rights;
<page>one parcel, the Title Policy shall, at Purchaser's request, contain an affirmative statement of insurance to the effect that all parcels of land constituting the Real Property, or such part thereof, are contiguous. The policy also shall contain such other affirmative statements of insurance and endorsements (for example, but not by way of limitation, an "access endorsement") as Purchaser may reasonably require; and
(b) The Company shall within ten (10) days after the date hereof deliver to Purchaser (i) a current commitment from the Title Company setting forth the basis upon which the Title Company is willing to insure title to the Real Property (the " Title Commitment"), and all documents referenced in Schedule B thereto, and (ii) a copy of each survey (the "Survey") of each parcel of the Real Property in the Company's possession, which Purchaser acknowledges and agrees shall be delivered without any representation or warranty of any kind as to the accuracy or completeness thereof by the Company or Parent. The cost of any survey work performed or ordered by the Company prior to the date hereof shall be paid for by the Company. If Purchaser requires any revisions or updates to the Survey delivered by the Company or requires a new survey, all such work shall be at the cost and expense of Purchaser. If the Title Commitment or the Survey discloses any liens, easements, restrictions, reservations or other defects or any other matters objectionable to Purchaser ("Title Objections"), other than Permitted Liens, Purchaser shall advise the Company of the same in writing within ten (10) days after last receipt by Purchaser of the Title Commitment (with all documents referred to in Schedule B thereto) and the Survey (as revised or updated as may be required by Purchaser within 30 days after receipt of the Title Commitment and Survey). Matters not objected to by Purchaser within said period shall be deemed to be additional Permitted Liens. As to any Title Objections, the Company may, but shall not be obligated to, remedy such matters as are susceptible of being remedied and shall, within ten (10) days after Purchaser gives the Company notice of its Title Objections, deliver written notice to Purchaser of those Title Objections which it shall remedy and those which it shall not remedy. Unless Purchaser elects to terminate this Agreement in accordance with clause 4.10(b)(y) below, the Company shall, as a condition to Purchaser's obligation to close hereunder, deliver to Purchaser a Title Commitment and Survey revised to reflect that any Title Objections which the Company has committed to remedy have been remedied to Purchaser's reasonable satisfaction. If the Company elects not to remedy any Title Objection, Purchaser shall have the option, which it shall exercise in writing within ten (10) days of its receipt of the written notice from the Company, of (x) consummating the transaction contemplated hereby and accepting such title as the Company holds, without change in or to the terms hereof, unless such matters are encumbrances or liens for an ascertainable amount, in which case the Company shall pay the amount thereof to Purchaser in cash at the Closing, or (y) terminating this Agreement and receiving a refund of all monies deposited hereunder. If Purchaser fails to deliver the written notice required in the immediately preceding sentence within the period prescribed thereby, such failure shall be deemed an irrevocable election by Purchaser to proceed to close the purchase and sale contemplated by this Agreement in accordance with clause 4.10(b)(x) above.
. Within five (5) Business Days following the Effective Date (the "Delivery Period"), the Company shall deliver an initial draft of the Disclosure Schedule (including without limitation Section 6.07 of the Disclosure Schedule) and copies of all documents referenced therein to Purchaser, provided, however, that to the extent that the Company fails to deliver the Disclosure Schedule (or any material portion thereof or any document referenced therein) prior to the expiration of the Delivery Period, such failure shall not constitute a breach of this Agreement for the purposes of Section 12.01 unless the Company thereafter fails to deliver the Disclosure Schedule (or any material portion thereof or document referenced therein not previously provided to Purchaser) within three (3) Business Days following the expiration of the Delivery Period. In addition, the Company shall also deliver to Purchaser any other agreements or documents relating to the Business or the Levy Agreements and Land reasonably requested by Purchaser.
. For a period of twelve (12) months following the Closing Date, Parent, the Company and their respective Affiliates shall refrain from, either alone or in conjunction with any other Person, directly or indirectly, soliciting for hire any employee of Purchaser or any Affiliate of Purchaser; provided, however, that the Company shall not be prohibited from soliciting for employment any Person whose employment with Purchaser or any of its Affiliates terminated prior to such solicitation or any Retained Employee.
. Purchaser will as promptly as practicable (a) take all steps necessary or desirable to obtain all consents, approvals, actions, Licenses, orders or authorizations of, or make all registrations, declarations or filings with and give all notices to Governmental or Regulatory Authorities or any other Person required of Purchaser to consummate the transactions contemplated hereby and will diligently and in good faith strive to obtain the same including, without limitation, making all necessary filings under the HSR Act with the Federal Trade Commission and the Department of Justice no later than three (3) Business Days following the expiration of the Diligence Period and making all necessary filings with the Commission no later than five (5) Business Days following the expiration of the Diligence Period, (b) provide such other information and communications to such Governmental or Regulatory Authorities or other Persons as such Governmental or Regulatory Authorities or other Persons may request in connection therewith and (c) provide cooperation to the Company in connection with the performance of their obligations under Sections 4.01 and 4.02 above. The parties acknowledge and agree that so long as Purchaser complies with clauses (a) and (b) of the foregoing sentence, any failure or refusal by the Commission to approve the transactions contemplated by this Agreement shall not be deemed to be a breach of the obligations of Purchaser or Parent hereunder; provided that nothing contained
<page>herein shall limit the obligations of Purchaser to comply with any other covenant or agreement contained in this Agreement or shall relieve Purchaser from liability for any breach of a representation or warranty contained in this Agreement. Purchaser will provide prompt written notification to the Company when any such consent, approval, action, order, authorization, registration, declaration, filing or notice referred to in clause (a) above is obtained, taken, made or given, as applicable, and will advise the Company of any communications (and, unless precluded by Law, provide copies of any such communications that are in writing) with any Governmental or Regulatory Authority or other Person regarding any of the transactions contemplated by this Agreement.
. In addition to and without limiting Purchaser's covenants contained in Section 5.01 above, Purchaser will (a) take promptly all actions necessary to make the filings required of Purchaser or its Affiliates under the HSR Act and in any event no later than three (3) Business Days following the expiration of the Diligence Period, (b) comply at the earliest practicable date with any request for additional information received by Purchaser or its Affiliates from the Federal Trade Commission or the Antitrust Division of the Department of Justice pursuant to the HSR Act and (c) cooperate with the Company in connection with the Company's filing under the HSR Act and in connection with resolving any investigation or other inquiry concerning the transactions contemplated by this Agreement commenced by either the Federal Trade Commission or the Antitrust Division of the Department of Justice or state attorneys general. Purchaser shall pay the filing fee, if any, required under the HSR Act.
. Purchaser will provide the Company and their respective Representatives with such documentation, data and other information as the Company may reasonably request in order to verify Purchaser's representations and warranties set forth in Section 3.07 above, but only to the extent that furnishing any such documentation, data or information would not violate any Law, Order, Contract or License applicable to Purchaser.
. Purchaser will, for a period of eighteen (18) months following the Closing Date, except as expressly permitted or required by Article IX of this Agreement, refrain from, either alone or in conjunction with any other Person, directly or indirectly, through its present of future Affiliates, soliciting for hire any employee of the Company or any Affiliate of the Company; provided, however, that Purchaser shall not be prohibited from soliciting for employment any Person whose employment with the Company or any of its Affiliates terminated prior to such solicitation.
. Purchaser shall redeem, in its capacity as the Company's agent if Purchaser has not elected to acquire such chips and tokens pursuant to Section 1.01(b)(ix) hereof, any gaming chips or tokens (from any series in use as of or prior to the Transfer Time) of the Company relating to the use and operation of the Business, which are presented by patrons of the Business or Purchaser for payment within the applicable Nevada statutory time periods for such redemptions. The Company's gaming chips and tokens redeemed by Purchaser shall be reimbursed, at Purchaser's election, as often as weekly for the first 30 Business Days following the Closing Date, and thereafter as often as monthly, by the Company, upon delivery by Purchaser to the Company of such gaming chips and tokens being
<page>redeemed. The Company agrees to make arrangements for the additional redemption of its gaming chips and tokens as may be required by Nevada law.
. At the Transfer Time, an authorized representative of the Company shall perform the following functions for all baggage, trunks and other property that was checked and placed in the care of the Company: (i) seal all pieces of baggage with tape: (ii) prepare an inventory ("Inventoried Baggage") of such items indicating the check number applicable thereto; and (iii) deliver the Inventoried Baggage to an authorized representative of Purchaser and secure a receipt for the Inventoried Baggage. Thereafter, Purchaser shall be responsible for such Inventoried Baggage, provided that the Company shall be liable to the owners of such Inventoried Baggage with respect to any missing or damaged contents of such Inventoried Baggage and such liability shall be a Retained Liability for the purposes of this Agreement to the extent that Purchaser is able to prove that such contents were missing or damaged prior to the Transfer Time.
. Safe deposit boxes in use by customers at the Transfer Time will be sealed in a reasonable manner mutually agreeable to Purchaser and the Company. At the Transfer Time, Purchaser and the Company shall designate in writing their initial safe deposit representatives. Representatives of Purchaser are to be present when a seal is broken. The Company will have no further responsibility for seals broken without the presence of the Company's representative. Purchaser will have no responsibility for loss or theft from a safe deposit box whose seal was broken in the presence of the Company representative. The Company will make a representative available within one (1) hour after Purchaser notifies a person or persons whom the Company will from time to time designate. All safe deposit keys, combinations and records shall be delivered at the Transfer Time to Purchaser.
. At the Transfer Time, an authorized representative of the Company shall perform the following functions for all motor vehicles that were checked and placed in the care of the Company: (i) mark all motor vehicles with a sticker or tape; (ii) prepare a report with respect to any damages to such vehicles; (iii) prepare an inventory of such vehicles ("Inventoried Vehicles") indicating the check number applicable thereto; and (iv) transfer control of the Inventoried Vehicles to an authorized representative of Purchaser and secure a receipt for the Inventoried Vehicles. Thereafter, Purchaser shall be responsible for the Inventoried Vehicles, provided that the Company shall be liable to the owners of such Inventoried Vehicles with respect to any damages occurring as a result of actions taken by the Company and its employees prior to the Transfer Time (including, without limitation, damages (as a result of actions taken by the Company and its employees) set forth in the damage report) or items missing from or damaged in such Inventoried Vehicles and such liability shall be a Retained Liability for the purposes of this Agreement, to the extent that Purchaser is able to prove that such items were missing or damaged prior to the Transfer Time.
. Purchaser (a) will execute and deliver at the Closing each certificate, document and instruments that Purchaser is hereby required to execute and deliver as a condition to the Closing, (b) will as promptly as practicable affirmatively take all steps necessary or desirable and proceed diligently and in good faith (i) to satisfy each other condition to the obligations of the Company contained in this Agreement and (ii) to consummate
<page>all of the transactions contemplated in this Agreement, and (c) will not take or fail to take any action that could reasonably be expected to result in the nonfulfillment of any obligation of the Company or Purchaser contained in this Agreement.
. Following the Closing Date, upon the request of the Company, Purchaser shall return to the Company all Books and Records relating to the Company that are not used primarily in the conduct of the Business, including, without limitation, the Books and Records relating to the businesses of Parent or its Affiliates (other than the Company).
. Purchaser, STN and their respective executive officers, directors and principal stockholders shall fully cooperate with any background investigation with respect to each of them required to be conducted by Parent pursuant to its Gaming Compliance Program to the extent required by the Commission.
The obligations of Purchaser hereunder to purchase the Assets are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Purchaser in its sole discretion):
. The representations and warranties made by the Company and Parent in this Agreement shall be true and correct, in all respects, on and as of the Closing Date as though made on and as of the Closing Date or, in the case of representations and warranties made as of a specified date earlier than the Closing Date, on and as of such earlier date, except in each case as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided, however, that for the purposes of determining the accuracy of such representations and warranties, all "Material Adverse Effect" qualifications and other materiality qualifications, and any similar qualifications, contained in such representations and warranties shall be disregarded.
. The Company and Parent shall have performed and complied with the agreements, covenants and obligations required by this Agreement to be so performed or complied with by the Company, as the case may be, at or before the Closing, except in each case as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
. The Company and Parent shall have delivered to Purchaser a certificate, dated the Closing Date and executed in the name and on behalf of the Company by an executive officer of the Company and on behalf of the Parent by an executive officer of the Parent, substantially in the form and to the effect of Exhibit C hereto, and certificates, dated the Closing Date and executed by the Secretary of the Company and the Secretary of Parent, substantially in the form and to the effect of Exhibit D hereto.
. There shall not be in effect at the time of Closing any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement.
. All consents, approvals, actions, Licenses, orders or authorizations of, all registrations, declarations or filings with and all notices to any Governmental or Regulatory Authority necessary to permit Purchaser and the Company to perform their respective obligations under this Agreement and to consummate the transactions contemplated hereby shall have been duly obtained, made or given and shall be in full force and effect, and all terminations or expirations of waiting periods imposed by any Governmental or Regulatory Authority necessary for the consummation of the transactions contemplated by this Agreement, including under the HSR Act, shall have occurred, except for such consents, approvals, actions, orders or authorizations the failure of which to obtain could not be reasonably expected to have a Material Adverse Effect.
. The Company shall have delivered to Purchaser the General Assignment and other Assignment Instruments.
. The third party consents listed in Section 6.07 of the Disclosure Schedule shall have been obtained and shall not have been revoked.
. Purchaser shall have received a title policy on substantially the same terms as the title commitment described in Section 4.10 hereof.
. Since the date hereof, there shall not have occurred any Material Adverse Effect or any events or series of events that constitute a Material Adverse Effect.
. The Company shall have cured all Open Diligence Matters to the reasonable satisfaction of Purchaser.
The obligations of the Company hereunder to sell the Assets are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by the Company in its sole discretion):
. The representations and warranties made by Purchaser in this Agreement shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date or, in the case of representations and warranties made as of a specified date earlier than the Closing Date, on and as of such earlier date, except in each case as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided, however, that for the purposes of determining the accuracy of such representations and warranties, all "Material Adverse Effect"
<page>qualifications and other materiality qualifications, and any similar qualifications, contained in such representations and warranties shall be disregarded.
. Purchaser shall have performed and complied with, in all material respects, the agreements, covenants and obligations required by this Agreement to be so performed or complied with by Purchaser at or before the Closing.
. Purchaser and STN shall have delivered to the Company a certificate, dated the Closing Date and executed in the name and on behalf of Purchaser and STN by an executive officer of Purchaser and STN, substantially in the form and to the effect of Exhibit E hereto, and a certificate, dated the Closing Date and executed by the Secretary of Purchaser and STN, substantially in the form and to the effect of Exhibit F hereto.
. There shall not be in effect at the time of Closing any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement.
. All consents, approvals and actions of, filings with and notices to any Governmental or Regulatory Authority necessary to permit the Company and Purchaser to materially perform their obligations under this Agreement and to consummate the transactions contemplated hereby, shall have been duly obtained, made or given, shall be in full force and effect and shall be in form and substance satisfactory to the Company and not subject to any material condition or contingency and all terminations or expirations of waiting periods imposed by any Governmental or Regulatory Authority necessary for the consummation of the transactions contemplated by this Agreement, including under the HSR Act, shall have occurred.
. Purchaser shall have delivered the Assumption Agreement and other Assumption Instruments.
. The third party consents listed in Section 7.07 of the Disclosure Schedule shall have been obtained and shall not have been revoked.
. The Company shall pay all sales, use, transfer, real property transfer, recording, stock transfer and other similar taxes and fees (other than Taxes of Purchaser and its Affiliates based upon or measured by net income or gains) ("Transfer Taxe s") arising out of or in connection with the transactions effected pursuant to this Agreement, and shall indemnify, defend, and hold harmless Purchaser and its Affiliates with respect to such Transfer Taxes. The Company and Purchaser shall equally share the costs of Gaming Device transfer fees. The Company shall file all necessary documentation and Tax Returns with respect to such Transfer Taxes.
.
.
<page>property being sold by Purchaser including permitting Purchaser to assign this agreement to an intermediary selected by Purchaser.
. Pursuant to the provisions of NRS 463.3455, the Company shall retain responsibility for the payment of any fees or taxes due pursuant to any subsequent deficiency determinations made under Chapter 463 of NRS which encompass any period of time before the Transfer Time.
.
<page>Purchaser agrees that it will not take any action which would give rise to liability under WARN or any similar state, local or federal Law or regulation.
.
. With respect to any accrued but unused vacation time to which any Transferred Employee is entitled pursuant to the vacation policy applicable to such employee immediately prior to the Closing Date (the "Vacation Policy"), Purchaser shall allow such Transferred Employee to use such accrued vacation, subject to the terms and conditions of Purchaser's vacation policy; provided, however, that if Purchaser deems it necessary to disallow such employee from taking such accrued vacation, Purchaser shall be liable for and pay in cash to each such Transferred Employee an amount equal to such vacation time in accordance with terms of the Vacation Policy; provided, further, that Purchaser shall be liable for and pay in cash an amount equal to any remaining accrued vacation time to any Transferred Employee whose employment terminates for any reason prior to the close of business on the last calendar day of the year during which the Closing Date occurs.
. Purchaser will provide. for the purposes of eligibility and vesting (but not for benefit accrual) each Transferred Employee with credit for all service with the Company and its Affiliates to the extent possible under each employee benefit plan, program, or arrangement of Purchaser or its Affiliates in which such employee is eligible to participate; provided, however, that in no event shall any employee be entitled to any credit to the extent that it would result in a duplication of benefits with respect to the same period of service.
. Except as provided in this Agreement, the parties hereto agree that Purchaser shall not assume any Benefit Plan and the Company shall
<page>retain and be responsible for any cost, expense, liability, damage or obligation relating to any Benefit Plan, whether arising before, on or after the Closing Date.
. The Company agrees to provide and be fully responsible for the continuation coverage required by Section 4980B of the Code and Sections 601 through 608 of ERISA ("COBRA") for all employees and former employees of the Company and their covered beneficiaries who incurred or will incur a qualifying event prior to the Closing Date, or will incur a qualifying event as a result of the consummation of the transactions contemplated herein, and who are entitled to COBRA coverage as a result thereof.
. Except for (i) this Article X, and Sections 2.06, 5.05, 5.06, 5.07, 5.08 and 5.10 above, Articles VIII and IX above, Sections 14.03, 14.04 and 14.07 below and the Company's agreements and covenants with respect to Retained Liabilities, which shall survive and remain enforceable indefinitely, (ii) Sections 4.06, 4.11 and 5.04 which shall survive for the period set forth therein, and (iii) Sections 2.10 and 2.15 which shall survive and remain enforceable for a period of five (5) years following the Closing Date, the representations, warranties, agreements and covenants contained in this Agreement shall survive the Closing for a period of eighteen (18) months following the Closing Date, after which time there shall be no liability in respect thereof on the part of either party or its officers, directors, employees, agents and Affiliates.
. Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 10.01 above, it is the explicit intent of each party hereto that the Company and Purchaser are making no representation or warranty whatsoever, express or implied, except those representations and warranties contained in Article II above and in any certificate delivered pursuant to Section 6.03 above. It is understood that, except to the extent otherwise expressly provided herein, Purchaser takes the Assets "as is" and "where is." In particular, but without limiting the generality of the foregoing, the Company and Parent make no representation or warranty to Purchaser with respect to any financial projection or forecast relating to the Company. With respect to any projection or forecast delivered by or on behalf of the Company to Purchaser, Purchaser acknowledges that (i) there are uncertainties inherent in attempting to make such projections and forecasts, (ii) it is familiar with such uncertainties, (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts furnished to it and (iv) it shall have no claim against the Company or Parent with respect thereto.
<page>
.
. All claims for indemnification by any Indemnified Party under Section 11.01 will be asserted and resolved as follows:
(i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 11.02(a), then the Indemnifying Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. The Indemnifying Party will have full control of such defense and proceedings, including that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates); provided that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense; and provided further that, if in the opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be responsible for reasonable fees and expenses of one counsel to such Indemnifying Party in connection with such defense. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
<page> (ii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to Section 11.02(a), then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnifying Party or any of its Affiliates). Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 11.02 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 11.02.
<page>dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 11.02.
. After the Closing, to the extent permitted by Law, the indemnities set forth in Article VIII and this Article XI shall be the exclusive remedies of Purchaser, Parent and the Company and their respective officers, directors, employees, agents
<page>and Affiliates for any misrepresentation, breach of warranty or nonfulfillment or failure to be performed of any covenant or agreement contained in this Agreement, and the parties shall not be entitled to a rescission of this Agreement or to any further indemnification rights or claims of any nature whatsoever in respect thereof, all of which the parties hereto hereby waive; provided, however, that no party hereto shall be deemed to have waived any rights, claims, causes of action or remedies if and to the extent such rights, claims, causes of action or remedies may not be waived under applicable law or actual fraud or intentional misrepresentation is proven on the part of a party by another party hereto.
. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned:
<page>Purchaser shall be a condition to the obligations of Purchaser to consummate the transactions contemplated hereby, or (z) the Company's standard of operating the Business materially and adversely differs from the average standard of operations employed by other owner-operators of similarly situated casino hotels serving the Las Vegas locals market (i.e., excluding the Las Vegas Strip and Las Vegas Downtown areas), or (ii) in accordance with the definition of "Disclosure Schedule";
. If this Agreement is validly terminated pursuant to the provisions of Section 12.01 above, this Agreement will forthwith become null and void, and, except as set forth in the following sentence, there will be no liability or obligation on the part of Parent, the Company, Purchaser or STN (or any of their respective officers, directors, employees, agents or other representatives or Affiliates), except that the provisions of Sections 14.02, 14.03, 14.04 and 14.07 below will continue to apply following any such termination. Notwithstanding any other provision in this Agreement to the contrary, upon any termination of this Agreement by the Company pursuant to Section 12.01(c), the non-terminating party shall remain liable to the terminating party for any and all willful breaches of this Agreement and the terminating party may seek such remedies, including damages and attorneys' fees, as are provided in this Agreement or as are otherwise available at Law or in equity.
. As used in this Agreement, the following defined terms have the meanings indicated below:
"AAA" has the meaning ascribed to it in Section 11.02(c).
"Accounting Firm" has the meaning ascribed to it in Section 1.05(c).
"Accounts Payable" has the meaning ascribed to it in Section 1.02(a).
"Accounts Receivable" has the meaning ascribed to it in Section 1.01(b).
"Accrued Expenses" has the meaning ascribed to it in Section 1.02(a).
"Acquisition Proposal" has the meaning ascribed to it in Section 4.07.
"Actions or Proceedings" means any action, suit, proceeding, arbitration or Governmental or Regulatory Authority investigation.
<page>"Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by Contract or otherwise and, in any event and without limitation of the previous sentence, any Person owning ten percent (10%) or more of the voting securities of another Person shall be deemed to control that Person.
"Agreement" means this Asset Purchase Agreement and the Exhibits, the Disclosure Schedule and the Schedules hereto and the certificates delivered in accordance with Sections 6.03 and 7.03, as the same shall be amended from time to time.
"Assets" has the meaning ascribed to it in Section 1.01(a).
"Assignment Instruments" has the meaning ascribed to it in Section 1.04.
"Assumed Liabilities" has the meaning ascribed to it in Section 1.02(a).
"Assumption Agreement" has the meaning ascribed to it in Section 1.04.
"Assumption Instruments" has the meaning ascribed to it in Section 1.04.
"Benefit Plan" means any Plan established by the Company, or any predecessor or Affiliate of any of the foregoing, existing at the Closing Date or at any time since December 31, 1997, to which the Company contributes or has contributed, or under which any employee, former employee or director of the Company or any dependent or beneficiary thereof is covered, is eligible for coverage or has benefit rights.
"Board of Arbitration" has the meaning ascribed to it in Section 11.02(c).
"Books and Records" means all files, documents, instruments, papers, books and records relating primarily to the Business or Condition of the Company, including, without limitation, financial statements, Tax Returns and related work papers and letters from accountants, budgets, pricing guidelines, ledgers, journals, deeds, title policies, minute books, stock certificates and books, stock transfer ledgers, Contracts, Licenses, customer lists, computer files and programs, retrieval programs, operating data and plans, environmental studies, audits, plans, surveys, designs, models and specifications.
"Business" has the meaning ascribed to it in the forepart of this Agreement.
"Business Books and Records" has the meaning ascribed to it in Section 1.01(a).
"Business Contracts" has the meaning ascribed to it in Section 1.01(a).
"Business Customer Lists" has the meaning ascribed to it in Section 1.01(a).
<page>"Business Day" means a day other than Saturday, Sunday or any day on which banks located in the States of location of the Company's principal executive offices are authorized or obligated to close.
"Business Licenses" has the meaning ascribed to it in Section 1.01(a).
"Business or Condition of the Company" means the business, financial condition or results of operations of the Company.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and the rules and regulations promulgated thereunder.
"Claim Notice" means written notification pursuant to Section 11.02(a) of a Third Party Claim as to which indemnity under Section 11.01 is sought by an Indemnified Party, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party's claim against the Indemnifying Party under Section 11.01, together with the amount or, if not then reasonably determinable, the estimated amount, determined in good faith, of the Loss arising from such Third Party Claim.
"Closing" means the closing of the transactions contemplated by Section 1.04.
"Closing Balance Sheet" has the meaning ascribed to it in Section 1.05(b).
"Closing Date" means (a) the second Business Day after the day on which the last of the conditions described in Articles VI and VII hereof above has been obtained, made or given or has expired, as applicable; provided, however, that in the event that the transactions contemplated by the Missouri Agreements have not been consummated, either party may extend the Closing Date (by providing written notice to the other party) such that the Closing will occur not more than 15 days after the consummation of the transactions contemplated by the Missouri Agreements; or (b) such other date as Purchaser and the Company mutually agree upon in writing;
"Closing Financial Statements Delivery Date" has the meaning ascribed to it in Section 1.05(b).
"COBRA" has the meaning ascribed to it in Section 9.06.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
"Commission" means the Nevada Gaming Commission and the Nevada Gaming Control Board, as applicable.
"Common Stock" means the common stock, no par value, of the Company.
"Company" has the meaning ascribed to it in the forepart of this Agreement.
<page>"Company Indemnified Parties" means Parent, the Company and their respective officers, directors, employees, agents and Affiliates.
"Company Plans" has the meaning ascribed to it in Section 2.09(a).
"Company's Accountant" has the meaning ascribed to it in Section 1.05(c).
"Competing Group" has the meaning ascribed to it in Section 4.09(a).
"Contract" means any agreement, lease, license, evidence of Indebtedness, mortgage, indenture, security agreement or other contract.
"Currently Existing Gaming Operation" has the meaning ascribed to it in Section 4.09(a).
"Cut-off Date" means, with respect to any representation, warranty, covenant or agreement contained in this Agreement, the date on which such representation, warranty, covenant or agreement ceases to survive as provided in Section 10.01 , as applicable.
"Deficiency" means the amount, if any, by which Net Current Asses as determined in accordance with Section 1.05 is a negative number.
"Determination Date" has the meaning ascribed to it in Section 1.05(c).
"Diligence Period" has the meaning ascribed to it in Section 12.01(d).
"Disclosure Schedule" means the record delivered to Purchaser by the Company as provided herein, containing all lists, descriptions, exceptions and other information and materials as are required to be included therein by the Company pursuant to this Agreement, as said record may be amended, supplemented or modified by the Company at any time prior to the Closing without any liability to the Company; provided, however, that Purchaser shall have the right until the expiration of the Diligence Period with respect to the initial delivery of the Disclosure Schedule and for five (5) Business Days after any amendment, supplement or modification of the Disclosure Schedule to terminate the Agreement based upon such amendment, supplement or modification of the Disclosure Schedule if such amendment, supplement or modification of the Disclosure Schedule reveals a matter which would have a Material Adverse Effect. Reference herein to the Disclosure Schedule shall mean and refer not only to the record itself, but to all items, documents, agreements and instruments referenced therein and to the content of each such item, document, agreement and instrument. Likewise, reference herein to a certain Section of the Disclosure Schedule shall refer not only to that portion of the Disclosure Schedule, but to the items, documents, agreements and instruments referenced in that Section and the contents of each such item, document, agreement and instrument. Further, matters disclosed for the purpose of one Section of the Disclosure Schedule shall constitute disclosure of such matters for the purposes of all other Sections of the Disclosure Schedule. The duplication or cross-referencing of any disclosures made in the Disclosure Schedule shall not, in any instance or in the aggregate, effect a waiver of the foregoing sentence.
<page>"Dispute Period" means the period ending sixty (60) days following receipt by an Indemnifying Party of either a Claim Notice or an Indemnity Notice.
"EBITDA" means, with respect to any Person for any period, the earnings before interest, taxes, depreciation and amortization of such Person for such period.
"Effective Date" has the meaning ascribed to it in the forepart of this Agreement.
"Environmental Claim" has the meaning ascribed to it in Section 2.15(c).
"Environmental Law" means any federal, state, or local law, statute, code, ordinance, order, rule, regulation, judgment, decree, injunction, writ, edict, award, authorization, or other legally binding and enforceable requirement by any Governmental or Regulatory Authority relating to any environmental, health or safety matters.
"Environmental Permits" has the meaning ascribed to it in Section 2.15(a).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
"Estimated Closing Balance Sheet" has the meaning ascribed to it in Section 1.05(a).
"Estimated Purchase Price" has the meaning ascribed to it in Section 1.05(a).
"Excluded Assets" has the meaning ascribed to it in Section 1.01(b).
"Excluded Books and Records" has the meaning ascribed to it in Section 1.01(b).
"Financial Statement Date" means December 31, 1999.
"Financial Statements" means the combined financial statements of the Company delivered to Purchaser pursuant to Section 2.05.
"GAAP" means generally accepted accounting principles, consistently applied throughout the specified period and in the immediately prior comparable period.
"Gaming Business" has the meaning ascribed to it in Section 4.09(a).
"Gaming Devices" means any gaming devices, associated equipment and slot tracking systems (as such terms are defined in NRS Chapter 463) that is an asset or property of the Company and is not an Excluded Asset.
"General Assignment" has the meaning ascribed to it in Section 1.04.
"Governmental or Regulatory Authority" means any court, tribunal, arbitrator, authority, administrative or other agency, commission, gaming authority, licensing board,
<page>official or other authority or instrumentality of the United States or any state, county, city or other political subdivision.
"Hazardous Material" means any chemical, or other material, or substance regulated under any Environmental Law including, without limitation, any which are defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "infectious waste," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," or "toxic pollutants" or words of similar import under any Environmental Law.
"HSR Act" means Section 7A of the Clayton Act (Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) and the rules and regulations promulgated thereunder.
"Improvements" has the meaning ascribed to it in Section 1.01(a).
"Indebtedness" of any Person means all obligations of such Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases and (v) in the nature of guarantees of the obligations described in clauses (i) through (iv) above of any other Person.
"Indemnified Party" means any Person claiming indemnification under any provision of Article XI.
"Indemnifying Party" means any Person against whom a claim for indemnification is being asserted under any provision of Article XI.
"Indemnity Notice" means written notification pursuant to Section 11.02(b) of a claim for indemnity under Article XI by an Indemnified Party, specifying the nature of and basis for such claim, together with the amount or, if not then reasonably determinable, the estimated amount, determined in good faith, of the Loss arising from such claim.
"Inventoried Baggage" has the meaning ascribed to it in Section 5.06.
"Inventoried Vehicles" has the meaning ascribed to it in Section 5.08.
"Knowledge of the Company" means the actual knowledge of the directors and executive officers of Parent or the Company and the General Manager of the Business.
"Knowledge of Purchaser" means the actual knowledge of the members, directors and officers of Purchaser and its Affiliates.
"Land" has the meaning ascribed to it in Section 1.01(b).
<page>"Laws" means all laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of the United States or any state, county, city or other political subdivision or of any Governmental or Regulatory Authority.
"Leased Real Property" has the meaning ascribed to it in Section 1.01(a).
"Lessee Security Deposits" has the meaning ascribed to it in Section 1.01(a).
"Lessor Security Deposits" has the meaning ascribed to it in Section 1.02(a).
"Levy Agreements and Land" has the meaning ascribed to it in Section 1.01(b).
"Levy Purchase Agreement" has the meaning ascribed to it in Section 1.01(b).
"Liabilities" means all Indebtedness, obligations and other liabilities of a Person (whether absolute, accrued, contingent, fixed or otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of authority, findings of suitability, authorizations, approvals, registrations, franchises and similar consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest, lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or any conditional sale Contract, title retention Contract or other Contract to give any of the foregoing.
"Loss" or "Losses" means any and all damages, fines, penalties, deficiencies, losses and expenses (including without limitation interest, court costs, reasonable fees of attorneys, accountants and other experts or other reasonable expenses of litigation or other proceedings or of any claim, default or assessment).
"Mark" has the meaning ascribed to it in Section 4.06(b).
"Material Adverse Effect" means any event or circumstance that has or will have, or could reasonably be expected to have, a material adverse effect on the Business or Condition of the Company after the Closing Date, it being understood that in no event shall any of the following shall be deemed by itself or by themselves, either individually or in the aggregate, to constitute a Material Adverse Effect: (a) a failure by the Company to meet internal earnings, revenue or other projections or earnings, revenue or other predictions of any analyst or (b) any event, circumstance or market condition occurring as a general economic or financial conditions or other developments which are not unique to the Company but also is applicable to the gaming industry generally, or the Nevada gaming industry in particular.
"Missouri Agreements" means, collectively, (i) that certain agreement dated as of October 17, 2000 by and among Ameristar Casino Kansas City, Inc, a Missouri corporation, Parent, Kansas City Station Corporation, a Missouri corporation, and STN, and (ii) that certain agreement dated as of October 17, 2000 by and among Ameristar Casino St. Charles, Inc., a
<page>Missouri corporation, Parent, St. Charles Riverfront Station, Inc., a Missouri corporation, and STN.
"Net Current Assets" means for any date of determination the net current assets of such Person at such date of determination calculated as set forth on Exhibit H attached hereto.
"NPL" means the National Priorities List under CERCLA.
"NRS" means the Nevada Revised Statutes.
"Objection Notice" has the meaning ascribed to it in Section 1.05(a).
"Open Diligence Matters" has the meaning ascribed to it in Section 12.01(d).
"Order" means any writ, judgment, decree, injunction or similar order of any Governmental or Regulatory Authority (in each such case whether preliminary or final).
"Owned Real Property" has the meaning ascribed to it in Section 1.01(a).
"Parent" has the meaning ascribed to it in the forepart of this Agreement.
"Permitted Lien" means (i) any Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of Law with respect to a Liability that is not yet due or delinquent and (iii) any minor imperfection of title, easements of public record or similar Liens which individually or in the aggregate with other such Liens would not have a Material Adverse Effect.
"Person" means any natural person, corporation, limited liability company, general partnership, limited partnership, proprietorship, other business organization, trust, union, association or Governmental or Regulatory Authority.
"Personal Property Leases" has the meaning ascribed to it in Section 1.01(a).
"Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workers' compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, whether written or oral, including, but not limited to, any "employee benefit plan" within the meaning of Section 3(3) of ERISA.
"Prepaid Expenses" has the meaning ascribed to it in Section 1.01(a).
"Purchase Price" has the meaning ascribed to it in Section 1.03(a).
"Purchaser" has the meaning ascribed to it in the forepart of this Agreement.
<page>"Purchaser Indemnified Parties" means Purchaser and its officers, directors, employees, agents and Affiliates.
"Real Property" has the meaning ascribed to it in Section 1.01(a).
"Real Property Leases" has the meaning ascribed to it in Section 1.01(a).
"Release" means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment.
"Representatives" has the meaning ascribed to it in Section 4.03.
"Required Consents" has the meaning ascribed to it in Section 1.08.
"Resolution Period" means the period ending ninety (90) days following receipt by an Indemnified Party of a written notice from an Indemnifying Party stating that it disputes all or any portion of a claim set forth in a Claim Notice or an Indemnity Notice.
"Retained Employees" has the meaning ascribed to it in Section 9.01(a).
"Retained Liabilities" has the meaning ascribed to it in Section 1.02(b).
"STN" means Station Casinos, Inc., a Nevada corporation.
"Surplus" means the amount, if any, by which Net Current Assets as determined in accordance with Section 1.05 is a positive number.
"Tangible Personal Property" has the meaning ascribed to it in Section 1.01(a).
"Tax Return" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
"Taxes" means (i) any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Sec. 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not and any expenses incurred in connection with the determination, settlement or litigation of any Tax liability and (ii) any liability for payment of amounts described in clause (i) above as a result of any express or implied agreement to pay or indemnify another Person with respect to such amounts or any liability for such amounts, any joint and/or several liability for such amounts, and any such amounts for which a Person is liable by operation of Law (including but not limited to successor liability).
"Test Month" has the meaning ascribed to it in Section 1.05(a).
<page>"Third Party" has the meaning ascribed to it in Section 4.07.
"Third Party Claim" has the meaning ascribed to it in Section 11.02(a).
"Transfer Taxes" has the meaning ascribed to it in Section 8.01.
"Transfer Time" has the meaning ascribed to it in Section 1.04.
"Transferred Employees" has the meaning ascribed to it in Section 9.01(a).
"Transferred Intellectual Property" has the meaning ascribed to it in Section 1.01(a)(xiii).
"Vacation Policy" has the meaning ascribed to it in Section 9.03.
"Vehicles" has the meaning ascribed to it in Section 1.01(a).
"WARN" means the Worker Adjustment Retraining and Notification Act of 1988.
. Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms "hereof," "herein," "hereby" and derivative or similar words refer to this entire Agreement; (iv) the terms "Article" or "Section" refer to the specified Article or Section of this Agreement; and (v) the phrase "ordinary course of business" refers to the business of the Company. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP. Any representation or warranty contained herein as to the enforceability of a Contract shall be subject to the effect of any bankruptcy, insolvency, reorganization, moratorium or other similar law affecting the enforcement of creditors' rights generally and to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law).
. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally, by facsimile transmission, by registered or certified mail (postage prepaid, return receipt requested) or by overnight express courier to the parties at the following addresses or facsimile numbers:
<page>If to Purchaser, to:
Lake Mead Station, Inc.,
c/o Station Casinos, Inc.
2411 West Sahara Ave.
Las Vegas, Nevada 89102
Facsimile No.: (702) 253-2926
Attn: Scott M Nielson, Esq.
with a copy to:
Milbank, Tweed, Hadley & McCloy LLP
601 South Figueroa, Suite 300
Los Angeles, California 90017
Facsimile No.: (213) 892-5063
Attn: Kenneth J. Baronsky, Esq.
If to STN:
Station Casinos, Inc.
2411 West Sahara Ave.
Las Vegas, Nevada 89102
Facsimile No.: (702) 253-2926
Attn: Scott M Nielson, Esq.
If to the Company or Parent, to:
Ameristar Casinos, Inc.
3773 Howard Hughes Parkway
Suite 490 South
Las Vegas, Nevada 89109
Attention: Craig H. Neilsen, President & CEO
Facsimile No. (702) 369-8860
with copies to:
Gordon R. Kanofsky, Esq.
Senior Vice President of Legal Affairs
Ameristar Casinos, Inc.
16633 Ventura Boulevard, Suite 1050
Encino, CA 91436-1864
Facsimile No. (818) 995-7099
and
<page>
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Attention: Jonathan K. Layne, Esq.
Facsimile No. (213) 229-6141
All such notices, requests and other communications will (a) if delivered personally to the address as provided in this Section 14.01, be deemed given upon delivery, (b) if delivered by facsimile transmission to the facsimile number as provided in this Section 14.01, be deemed given upon receipt, and (c) if delivered by mail in the manner described above to the address as provided in this Section 14.01, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section 14.01). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other party hereto.
. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.
. Whether or not the transactions contemplated hereby are consummated, Purchaser and the Company each shall pay the costs and expenses incurred by such party in connection with the negotiation, execution and closing of this Agreement and the transactions contemplated hereby.
. At all times at or before the Closing, the Company and Parent, on the one hand, and Purchaser and STN, on the other, will not issue or make any reports, statements or releases to the public or generally to the employees, customers, suppliers or other Persons to whom the Company sells goods or provides services or with whom the Company otherwise has significant business relationships with respect to this Agreement or the transactions contemplated hereby without the consent of the other, which consent shall not be unreasonably withheld. If either party is unable to obtain the approval of its public report, statement or release from the other party and such report, statement or release is, in the opinion of legal counsel to such party, required by Law in order to discharge such party's disclosure obligations, then such party may make or issue the legally required report, statement or release and promptly furnish the other party with a copy thereof. Purchaser and STN will obtain the Company's prior approval of any press release to be issued immediately following the execution of this Agreement or the Closing announcing this Agreement or the consummation of the transactions contemplated by this Agreement, which approval shall not be unreasonably withheld. The Company and Parent will obtain Purchaser's prior approval of any press release to be issued immediately following the execution of this Agreement or the Closing announcing this Agreement or the consummation of the transactions contemplated by this Agreement.
. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.
. Except for amendments, supplements and modifications to the Disclosure Schedule by the Company prior to the Closing (which shall be made in accordance with the terms and provisions set forth in the definition of the term "Disclosure Schedule"), this Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of Purchaser, on the one hand, and the Company, on the other hand.
. Each party hereto will hold, and will use its best efforts to cause its Affiliates , and in the case of Purchaser, any Person who has provided, or who is considering providing, financing to Purchaser to finance all or any portion of the Purchase Price, and their respective Representatives to hold, in strict confidence from any Person (other than any such Affiliate, Person who has provided, or who is considering providing, financing or Representative), unless (i) compelled to disclose by judicial or administrative process (including, without limitation, in connection with obtaining the necessary approvals of this Agreement and the transactions contemplated hereby of Governmental or Regulatory Authorities) or by other requirements of Law or (ii) disclosed in an Action or Proceeding brought by a party hereto in pursuit of its rights or in the exercise of its remedies hereunder, all documents and information concerning the other party or any of its Affiliates furnished to it by the other party or such other party's Representatives in connection with this Agreement or the transactions contemplated hereby, except to the extent that such documents or information can be shown to have been (a) previously known by the party receiving such documents or information, (b) in the public domain (either prior to or after the furnishing of such documents or information hereunder) through no fault of such receiving party or (c) later acquired by the receiving party from another source if the receiving party is not aware that such source is under an obligation to another party hereto to keep such documents and information confidential; provided that following the Closing the foregoing restrictions will not apply to Purchaser's use of documents and information concerning the Business, the Assets or the Assumed Liabilities furnished by Seller hereunder. In the event the transactions contemplated hereby are not consummated, upon the request of the other party, each party hereto will, and will cause its Affiliates, any Person who has provided, or who is considering providing, financing to such party and their respective Representatives to, promptly (and in no event later than five (5) Business Days after such request) redeliver or cause to be redelivered all copies of documents and information furnished by the other party in connection with this Agreement or the transactions contemplated hereby and destroy or cause to be destroyed all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon prepared by the party furnished such documents and information or its Representatives.
. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person other than any Person entitled to indemnity pursuant to Article XI hereof.
. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any party hereto without the prior written consent of the other party hereto and any attempt to do so will be void, except (a) for assignments and transfers by operation of Law and (b) that Purchaser may assign any or all of its rights, interests and obligations hereunder (including, without limitation, its rights under Article XI) to (i) a wholly-owned subsidiary, provided that any such subsidiary agrees in writing to be bound by all of the terms, conditions and provisions contained herein and Purchaser remains liable for its obligations under this Agreement, (ii) any post-Closing purchaser of the Business or a substantial part of the Assets or (iii) any financial institution or other entity providing purchase money or other financing to Purchaser from time to time as collateral security for such financing. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties hereto and their respective successors and assigns.
. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.
. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of Nevada or any court of the State of Nevada located in Clark County in any action, suit or proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby, and agrees that any such action, suit or proceeding shall be brought only in such court; provided, however, that such consent to jurisdiction is solely for the purpose referred to in this Section 14.12 and shall not be deemed to be a general submission to the jurisdiction of said courts or in the State of Nevada other than for such purpose. Each party hereby irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such action, suit or proceeding brought in such a court. Each party further irrevocably waives and agrees not to plead or claim that any such action, suit or proceeding brought in such a court has been brought in an inconvenient forum.
. This Agreement shall be governed by and construed in accordance with the Laws of the State of Nevada applicable to a Contract executed and performed in such State, without giving effect to the conflicts of laws principles thereof.
. In the event of a dispute between the parties hereto relating to this Agreement, the prevailing party to such dispute will be entitled to recover its reasonable attorneys fees and other costs and expenses relating to such dispute from the non-prevailing party.
. Time is of the essence in performing covenants and agreements hereunder.
. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
. Parent hereby, to the fullest extent permitted by applicable law, irrevocably and unconditionally guarantees to Purchaser and its successors and assigns the prompt performance and payment in full when due of all obligations of the Company to Purchaser under this Agreement and hereby agrees to take all reasonably necessary action as the sole shareholder of the Company to cause the Company to perform its obligations hereunder.
. STN hereby, to the fullest extent permitted by applicable law, irrevocably and unconditionally guarantees to the Company and its successors and assigns the prompt performance and payment in full when due of all obligations of Purchaser to the Company under this Agreement and hereby agrees to take all reasonably necessary action as the sole shareholder of Purchaser to cause Purchaser to perform its obligations under this Agreement.
<page>THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officer or trustee, as applicable, of each party hereto as of the date first above written.
"PURCHASER"
LAKE MEAD STATION, INC.,
a Nevada corporation
By: /s/ Glenn C. Christenson
Name:
Title:
"STN"
STATION CASINOS, INC.,
a Nevada corporation
By: /s/ Glenn C. Christenson
Name:
Title:
"THE COMPANY"
AMERISTAR CASINO LAS VEGAS, INC.,
a Nevada corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
"PARENT"
AMERISTAR CASINOS, INC.,
a Nevada corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Senior Vice President
and Chief Financial Officer
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