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EXHIBIT 99.4
ASSIGNMENT OF MEMBERSHIP INTERESTS
This ASSIGNMENT OF MEMBERSHIP INTERESTS ("ASSIGNMENT") in Ourway Realty, LLC, a
Massachusetts limited liability company ("OURWAY REALTY") is entered into as of
, 2000, by and between Anchor Gaming, a Nevada corporation ("ASSIGNOR"), a
member of Ourway Realty, and My Way Holdings, LLC, a Nevada limited liability
company ("ASSIGNEE" and taken together with Assignor, a "PARTY" or the
"PARTIES"), based on the following facts:
RECITALS
WHEREAS, Assignor is a member of Ourway Realty pursuant to that
certain Amended and Restated Operating Agreement of Ourway Realty dated May
16, 2000 (the "OPERATING AGREEMENT"), executed by all the members thereto as
such members (other than Assignor) are more fully set forth on Exhibit "A"
attached hereto and incorporated herein by reference (the "OTHER MEMBERS");
and
WHEREAS, Assignor, Stanley E. Fulton ("FULTON") and other parties,
are parties to that certain Stock Purchase Agreement dated of even date
herewith ("STOCK PURCHASE AGREEMENT"), and other agreements related thereto
or referenced therein (collectively, with the Stock Purchase Agreement, the
"AGREEMENTS"); and
WHEREAS, the transaction subject of the Agreements includes, among
other transactions, the assignment by Assignor of one hundred percent (100%)
of Assignor's ownership, right, title and interest in Ourway Realty (the
"INTEREST") to Fulton or an entity owned by Fulton; and
WHEREAS, Assignee is an entity wholly owned by Fulton; and
WHEREAS, Section 4 of the Operating Agreement and the Schedule to
the Operating Agreement provide that Assignor holds a twenty-five percent
(25%) interest in Ourway Realty; and
WHEREAS, Assignor desires to transfer and convey the Interest,
subject to the Operating Agreement and the terms in this Assignment, to
Assignee; and
WHEREAS, Assignee desires to accept the Interest, subject to the
Operating Agreement and the terms in this Assignment, such that Assignee
shall hold a twenty-five percent (25%) interest in, and be a full member of,
Ourway Realty.
NOW THEREFORE, based on the foregoing, and in consideration of the
mutual agreements, covenants, and conditions contained herein and in the
Agreements, the receipt by Assignor of One Hundred Dollars ($100) in-hand
paid, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Parties hereby agree as follows:
1. EFFECTIVE DATE. The effective date (the "EFFECTIVE DATE") of this
Assignment shall be the Closing Date (defined in Section 6). In the
event the Effective Date has not occurred by April 1, 2001, Assignee or
Assignor shall have the right, but not the obligation, to terminate
this Assignment.
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2. ASSIGNMENT OF INTEREST. For the purchase price of Five Million Dollars
($5,000,000) (the "PURCHASE PRICE"), Assignor hereby sells, transfers,
conveys, and assigns to Assignee the Interest, and all of Assignor's
associated rights and obligations under the Operating Agreement,
including, without limitation, (i) all associated rights of Assignor to
receive monies and other property or assets due and to become due to
Assignor under or pursuant to the Operating Agreement, (ii) all
associated claims of Assignor for damages arising out of or for breach
of or default under the Operating Agreement, (iii) all associated
rights of Assignor to receive the proceeds or benefits of any
indemnity, warranty, or other payments with respect to the Operating
Agreement, and (iv) all associated rights and obligations of Assignor
to perform thereunder and to compel performance and otherwise exercise
all remedies thereunder.
3. PAYMENT OF PURCHASE PRICE. Assignee shall pay to Assignor, in
immediately available U.S. Funds, the Purchase Price, on the Closing
Date and concurrent with the transfer of the Interest from Assignor to
Assignee.
4. EFFECT OF ASSIGNMENT OF INTEREST. As of the Effective Date, the
Interest shall be transferred from Assignor to Assignee. From and after
the Effective Date twenty-five percent (25%) of the portion of profits
or losses of Ourway Realty and the portions of all other items of
income, gain, loss, deduction, or credit allocable to such Interest on
or after such date shall be credited or charged, as the case may be, to
Assignee. Nothing in this Assignment will affect the allocation to
Assignor of profits, losses and other items of income, gain, loss,
deduction, or credit allocable to the Interest and attributable to any
period before the Effective Date hereof or any distribution or payments
made to Assignor in respect of the Interest before the Effective Date.
5. ASSIGNOR REPRESENTATIONS AND WARRANTIES. Assignor hereby represents and
warrants to Assignee as of the date hereof, and as of the Effective
Date as follows:
a. Intentionally Omitted.
b. The Articles of Organization of Ourway Realty are attached
hereto and incorporated herein by reference as Exhibit "B,"
and the Operating Agreement, including all schedules and
exhibits thereto, is attached hereto and incorporated herein
by reference as Exhibit "C." Each of such documents is true
and correct and in full force and effect.
c. The execution, delivery and, subject to obtaining the consents
required by the Operating Agreement, performance by Assignor
of this Assignment will not (i) modify, breach or constitute
grounds for the occurrence or declaration of a default under
or give rise to a right to terminate any agreement, license,
indenture, undertaking or other instrument to which Assignor
is a party or by which Assignor, or any of their respective
assets may be bound or affected, (ii) violate any provision of
law or any regulation or any order, judgment or decree of any
court or other agency of government to which Assignor is
subject, (iii) violate any provision of the Articles of
Incorporation or By-laws of Assignor, or (iv) result in the
creation or imposition of (or the obligation to create or
impose) any liens, mortgages, pledges, charges, claims or
other encumbrances on any of the properties of Assignor.
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d. Except to the extent applicable, the required filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR ACT"), and the expiration or early
termination of the waiting period thereunder, no consent,
approval, authorization, permit, waiver or license of or from,
notification to, or declaration or filing with, any federal,
state, local, municipal, foreign or other governmental body or
authority ("GOVERNMENTAL BODY"), on the part of Assignor is
required for the execution and delivery of this Assignment or
the performance or consummation of the transactions
contemplated by this Assignment.
e. As of the date hereof and through and including the Effective
Date, the Interest will be owned beneficially, and of record,
by Assignor, free and clear of any mortgage, security
interest, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, preference, priority or other
security agreement, option, warrant, attachment, right of
first refusal, preemptive right, conversion, put, call or
other claim or right, restriction on transfer, or preferential
arrangement of any kind or nature whatsoever (including,
without limitation, any restriction on the transfer of any
assets, any conditional sale or other title retention
agreement, any financing lease involving substantially the
same economic effect as any of the foregoing and the filing of
any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction), except for any of the
foregoing that may be set forth in the Operating Agreement
(collectively, "ENCUMBRANCES"). On the Closing Date, (i)
Assignor will deliver to Assignee valid, good and marketable
title to the Interest, free and clear of all free and clear of
any Encumbrance, and (ii) the Interest will not be subject to
any voting agreement or other contract, agreement,
arrangement, commitment or understanding, restricting the
voting, dividend rights, transfer or other disposition of the
Ourway Interest, except as may be set forth in the Operating
Agreement.
f. Intentionally Omitted.
g. Intentionally Omitted.
h. Intentionally Omitted.
i. Intentionally Omitted.
j. Intentionally Omitted.
k. Intentionally Omitted.
l. Intentionally Omitted.
m. No royalties or commissions are payable by Ourway Realty under
any license or franchise agreements to any shareholder,
officer or director of Assignor.
n. Except Wasserstein Perella & Co., Inc., there is no investment
banker, broker, finder or other intermediary that has been
retained by or is authorized to act on behalf of Assignor who
might be entitled to any fee or commission upon consummation
of the transactions contemplated by this Assignment.
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Notwithstanding any investigation made or information
obtained by Assignee, Fulton or their affiliates, the representations and
warranties made by Assignor in this Section 5 shall not survive the Closing
(except for Section 5(e) which shall survive indefinitely).
1. CONDITIONS PRECEDENT TO EFFECTIVE DATE. The closing of the
transactions contemplated by this Assignment (the "CLOSING DATE")
shall occur at the offices of Lionel Sawyer & Collins, or such other
location as the parties hereto may mutually agree. Unless this
Assignment is earlier terminated pursuant to Sections 1 or 7, the
Closing Date shall occur as promptly as practicable, but no later
than five (5) business days following the satisfaction or waiver by
Assignee and Assignor of the following conditions:
a. Ourway Realty and the manager and each member thereof shall
have waived their respective rights of first refusal under
the Operating Agreement with respect to the transfer of the
Interest pursuant to this Agreement.
b. Assignee shall have received a copy of the Operating
Agreement, executed by the manager of Ourway Realty and all
Other Members, and amended in conformity with the
requirements of the Operating Agreement to indicate that
all of Assignor's right, title and interest in the Interest
has been transferred and conveyed to Assignee.
c. Assignee shall have received any instrument of transfer, other
than this Assignment, that may be required by the Operating
Agreement or by law.
d. The representations and warranties of Assignor set forth in
Section 4 of this Assignment shall be true and correct in all
material respects (if not qualified by materiality) and in all
respects (if qualified by materiality) (i) as of the date
hereof and (ii) as of the Effective Date as if made on such
date (provided that in the cases of clauses (i) and (ii), any
such representation and warranty made as of a specific date
shall be true and correct in all material respects (if not
qualified by materiality) and in all respects (if qualified by
materiality) on and as of such specific date).
e. Assignor shall have performed in all material respects all
covenants and obligations herein required to be performed or
observed by it on or prior to the Closing Date.
f. On or prior to the Closing Date, Assignee shall have obtained
any and all consents, approvals, authorizations, permits,
licenses and waivers necessary for consummation of the
transactions contemplated by this Assignment and all of the
Agreements.
g. No order to restrain, enjoin or otherwise prevent the
consummation of the transactions contemplated hereby shall
have been entered by any court or Governmental Body and not
rescinded or overturned. No litigation instituted by any
Governmental Body shall be pending to restrain or invalidate
any material part of the transactions contemplated by this
Assignment.
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7. TERMINATION OF ASSIGNMENT. This Assignment may be terminated by
Assignee or Assignor in the event that any of the Agreements are
terminated or otherwise of no further force or effect.
8. OURWAY REALTY RECORDS. Prior to the Closing Date, upon Assignee's
request therefor, Assignor shall provide to Assignee copies of all
books and records, financial and accounting documents, reports,
returns, files, agreements and any other documents related to the
business, ownership, or operation of Ourway Realty that are in
Assignor's possession or control, or that are reasonably obtainable by
Assignor.
9. MISCELLANEOUS.
a. ATTORNEYS' FEES TO ENFORCE THIS ASSIGNMENT OR IN SUBSEQUENT
LITIGATION. In the event any Party shall maintain or
commence any action, proceeding, or motion against any
other Party to enforce this Assignment or any provision
thereof, the prevailing Party shall be entitled to recover
its reasonable attorneys' fees and costs incurred.
b. SEVERABILITY. Each provision of this Assignment is intended to
be severable. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such illegality or
invalidity shall not affect the legality or validity of the
remainder of this Assignment.
c. COSTS. Each Party shall pay its own legal fees and
expenses incidental to the execution of this Assignment
and the consummation of the transactions contemplated
hereby.
d. EXECUTION OF DOCUMENTS. Each Party agrees to execute all
documents necessary to carry out the purpose of this
Assignment and to cooperate with each other for the
expeditious filing of any and all documents and the
fulfillment of the terms of this Assignment.
e. CONTROLLING LAW. This Assignment has been entered into in the
State of Nevada, and this Assignment, including without
limitation, any rights, remedies, or obligations provided for
hereunder, shall be construed and enforced in accordance with
the laws of the State of Nevada.
f. COUNTERPART EXECUTION. This Assignment may be executed in
multiple counterparts each of which may be deemed an original
and shall become effective when the separate counterparts have
been exchanged among the Parties.
g. CONSTRUCTION. Every covenant, term, and provision of
this Assignment shall be construed simply according to
its fair meaning and not strictly for or against any Party.
h. HEADINGS. Section and other headings contained in this
Assignment are for reference purposes only and are not
intended to describe, interpret, define, or limit the scope,
extent, or intent of this Assignment or any provision hereof.
i. VARIATION OF PROVISIONS. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
or neuter, singular or plural, as the identity of the person
or persons may require.
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j. AMENDMENTS. Any amendment to this Assignment shall be in
writing and executed by Assignor and Assignee.
k. ENTIRE AGREEMENT. This Assignment and the other Agreements,
including, without limitation, all exhibits hereto and
thereto, contain the entire understanding among the Parties
and supersedes any prior written or oral agreements between
them respecting the subject matter of this Assignment. There
are no representations, agreements, arrangements, or
understandings, oral or written, between the Parties relating
to the subject matter of this Assignment that are not fully
set forth herein. This Assignment shall be considered part of
the Operating Agreement for all purposes.
l. NOTICES. All notices, requests, consents and other
communications hereunder shall be given to Assignor
and Assignee as set forth in the Stock Purchase Agreement.
m. ASSIGNMENT. It is specifically agreed that Assignee may
assign, transfer or convey any or all of its rights and
obligations hereunder to any person whomsoever; provided,
however, that in the event of such assignment, transfer or
conveyance, Assignee shall not be released from its
obligations pursuant to this Assignment, unless agreed to in
writing by Assignee and Assignor.
IN WITNESS WHEREOF, the Parties hereto have approved and
executed this Assignment as of the date first set forth above.
ASSIGNOR: ANCHOR GAMING
a Nevada corporation
By:
-----------------------------
Name:
---------------------------
Its:
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ASSIGNEE: My Way Holdings, LLC
a Nevada limited liability company
By:
-----------------------------
Name: Stanley E. Fulton
Its: Manager
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0
Exhibit "A"
Members in Ourway Realty LLC (other than Assignor)
<TABLE>
<S> <C>
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Alles Partners (attn: Robert Gopen) 1.5000%
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Altman, Arthur 0.7500%
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Chanowski, Fred 1.5000%
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Chimento, George L. 10.0000%
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Goodman, Allen 1.6500%
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Hassler, Allen 0.7500%
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Isenberg, Diane 1.2500%
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Kropa, Gomer 2.5000%
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Lank, Joseph 0.3750%
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Levine, Joseph 0.6875%
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Linsey Family Ltd Partnership 2.7500%
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Piontkowski, Gary T. 9.2800%
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Ross, Alfred, S. 29.3375%
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Schwartz, Joel 0.7500%
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Trembowicz, Richard 0.7500%
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Truesdale, Robert 2.5000%
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Tuch, Richard L. 7.7325%
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Whitehall Company attn: Marvin Gordon 0.9375%
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75.0000%
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</TABLE>
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Exhibit "B"
Articles of Organization of Ourway Realty LLC
(to be attached)
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Exhibit "C"
Operating Agreement of Ourway Realty, LLC
(to be attached)
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