1
EXHIBIT 2.3
ASSET PURCHASE AGREEMENT
MISSISSIPPI BELLE II, INC.
AS SELLER
AND
CROWN-MISSISSIPPI BELLE II, INC.
AS BUYER
JUNE 11, 1996
2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") dated on or as of
June 11, 1996, by and between CROWN-MISSISSIPPI BELLE II, INC., an Iowa
corporation (the "Purchaser"), CROWN CASINO CORPORATION, a Texas corporation
("Crown"), ROBERTS RIVER RIDES, INC., an Iowa corporation ("RRR, Inc."),
MISSISSIPPI BELLE II, INC., an Iowa corporation (the "Seller"), and the
shareholders of the Seller listed on Table I attached hereto (collectively, the
"Shareholders").
WITNESSETH:
WHEREAS, the Seller is engaged in the riverboat gaming business on the
Mississippi River in Clinton, Iowa (the "Seller's Gaming Operation"), and in
furtherance of such business owns and/or operates certain assets including the
excursion gaming riverboat known as the M/V Mississippi Belle II;
WHEREAS, a company related to Seller known as RRR, Inc., an Iowa
corporation, owns the M/V Mississippi Belle II, certain vehicles, and certain
kitchen equipment and leases same to Seller and will be merged into Seller or
will otherwise transfer said Vessel, vehicles and equipment to Seller prior to
the Closing of the transaction between Seller and Purchaser;
WHEREAS, the Purchaser desires to purchase, and the Seller desires to
sell, the Purchased Assets (as hereinafter defined) used in connection with the
Seller's Gaming Operation at the price and on the terms and conditions set
forth herein; and
WHEREAS, the Shareholders are the owners of one hundred percent (100%)
of the issued and outstanding shares of capital stock of the Seller.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and subject to the terms and conditions set
forth herein, the Purchaser, the Seller and the Shareholders hereby agree as
follows:
1. Acquisition.
(a) Purchased Assets. Subject to and upon the terms and
conditions hereof and the representations and warranties herein set forth, on
the Closing Date (as hereinafter defined), the Seller agrees to sell, assign,
transfer and deliver to the Purchaser, and the Purchaser agrees to purchase
from the Seller, free and clear of all liens, claims and encumbrances
whatsoever, all of the Seller's assets employed in the Seller's Gaming
Operation (collectively, the "Purchased Assets"). The Purchased Assets shall
include, without limitation:
3
(i) The riverboat gaming vessel known as the M/V
Mississippi Belle II, Official Number 1026746 (the
"Vessel");
(ii) The Seller's barges and improvements thereon, upon
which the Seller's offices and other facilities
relating to the Seller's Gaming Operation are located
(specifically, Belle's Landing Barge, Guest Services
Barge, Utility Barge, Work Barge, and one (1) flat
Barge, collectively the "Barges");
(iii) All furniture, fixtures and equipment (including
computer equipment, walkways and awnings) owned or
leased by the Seller or which the Seller otherwise
has the right to use in connection with the Seller's
Gaining Operation, including without limitation,
those assets listed on Schedule l(a)(iii) hereto
(collectively, the "FF&E");
(iv) The automobiles and other vehicles listed on Schedule
1(a)(iv) hereto;
(v) All customer lists, sales records, files, supplier
lists, credit information, business records and
plans, sales and promotional literature and other
selling material, and computer software used in the
Seller's Gaming Operation;
(vi) All rights for public utility connection access, if
any, including water, electrical, telephone, waste
water, sewage and drainage "hook-ups" with state or
local government agencies or public utilities, and
all transferable licenses, permits, certificates or
similar governmental approvals or authorizations,
including occupancy, life-safety, and elevator
operation permits issued by state or local government
agencies;
(vii) The name and service mark "Mississippi Belle II" and
any other names and service marks used in connection
with the Seller's Gaming Operation;
(viii) All coin operated gaming devices and associated
equipment ("Slot Machines") table games and
money-handling/counting equipment, including those
listed on Schedule 1(a)(viii) hereto;
(ix) The stock-in-trade and inventory used in the Seller's
Gaming Operation, including, without limitation, all
dice, playing cards, forms and casino chips and
tokens; Purchaser acknowledges that the use of said
items by Purchaser is subject to Purchaser obtaining
prior approval from the Iowa Racing and Gaming
Commission authorizing such use;
(x) All of the Seller's dishes, servers, glassware,
utensils, cooking equipment, and related food and
beverage preparation, cooking and service items,
including kitchen equipment currently owned by RRR,
Inc. which will be conveyed to the Seller on or
before the Closing by merger or otherwise;
(xi) All rights of the Seller under that certain Lease
Agreement dated January 24, 1991 (the "CCGA Lease"),
between the City of Clinton, Iowa and Clinton County
Gaming Association, Ltd. ("CCGA, Ltd."), covering a
certain riverfront dock site and the first level of
the City of Clinton, Iowa Showboat, Clinton, Iowa
(the "City of Clinton Property"), which Lease was
assigned to Seller by CCGA, Ltd. by written
assignment dated February 6, 1991;
(xii) Those certain agreements entered into by the Seller
which relate to the operation of the Purchased Assets
listed on Schedule l(a)(xii) (the "Operating
Agreements") including, without limitation, service
agreements and personal property leases, including
all Operating Agreements (if any) entered into by the
Seller after the date hereof which are approved by
the Purchaser, subject to the limitation set forth in
Section l(b) hereof;
2
4
(xiii) All transferable governmental licenses, permits and
approvals relating to the Purchased Assets;
(xiv) All of the Seller's leasehold improvements including
those listed on Schedule l(a)(xiv) attached hereto;
(xv) The casino bankroll in an amount equal to the
liabilities assumed by Purchaser under Paragraph
1(b)(ii) below (the "Bankroll Amount");
(xvi) All rights of the Seller under that certain agreement
dated December 12, 1990, as amended on January 13,
1991, June 6, 1991, and April 30, 1993 (the "CCGA
Gaming Agreement") with the CCGA, Ltd.;
(xvii) The telephone numbers 319-243-9000 and
1-800-457-9975;
(xviii) The kitchen equipment listed on Schedule 1(a)(xviii);
(xix) The real estate and improvements thereon situated in
Clinton County, Iowa legally described as shown on
Schedule 1(a)(xix) (the "Real Estate");
(xx) Seller's inventories of food, beverages, gift shop
items, plastic cups, wet wipes, napkins, matches,
garbage bags, and table covers existing as of the
Closing; and
(xxi) All utility security deposits made by Seller and
being held by any utility in connection with Seller's
Clinton, Iowa operations.
(b) Assumption of the Operating Agreements, the CCGA Lease, Etc.
The Purchaser shall assume the Seller's (i) obligations under the Operating
Agreements, the CCGA Lease and the CCGA Gaming Agreement arising on or after
the Closing Date; and (ii) progressive Caribbean stud liability, progressive
slot liability, players club liability as shown on Schedule 1(b), and fifty
percent (50%) of gaming chip liability (collectively, the "Gaming Liabilities")
existing on the Closing Date in an amount equal to the Bankroll Amount.
(c) Excluded Assets. The Purchased Assets shall not include the
following assets which will be retained by the Seller:
(i) All cash in excess of the Bankroll Amount, all cash
equivalents, all notes, accounts receivable, security
deposits (except utility security deposits), unbilled
receivables and any other current assets of Seller
not specifically listed in Section 1(a) above;
(ii) All notes receivable from RRR, Inc., affiliated
entities, and shareholders of RRR, Inc. and
affiliated entities;
(iii) All federal, state and local income tax or franchise
tax credits, refunds claims and federal tax benefits;
(iv) The Seller's corporate stock and minute book(s) and
other records related exclusively to the structure of
the Seller, and such files, papers and records of the
Seller as consist of its federal, state and local
income tax returns and related documents and records;
provided, however, the Seller shall provide to the
Purchaser copies of personnel records relating to
personnel hired by Purchaser and such other records
of Seller referenced above, upon request made within
one year after Closing; further provided, however,
such personnel
3
5
records will not be provided by Seller to Purchaser
without an authorization executed by the employee
involved;
(v) All rights of Seller under, and all funds of property
held in trust pursuant to, any pension,
profit-sharing or retirement plan, any other employee
benefit plan or any deposits or payments made by
Seller or its insurance carriers with respect to any
workers' compensation or other employee protection
scheme that is applicable to employees of the Seller;
(vi) All insurance policies of Seller relating to the
Purchased Assets and all rights of Seller to
insurance claims and proceeds arising from or
relating to the operation of Seller's businesses
prior to or on the Closing Date except to the extent
any such insurance policies are purchased by or
assigned to Purchaser hereunder;
(vii) Two (2) 1992 Cadillacs owned by RRR, Inc.;
(viii) Tools, equipment, and personal property (including
pictures and paintings) owned by employees; and
(ix) One (1) 1996 Cadillac leased by Seller.
All of the aforementioned assets are hereinafter referred to as the "Excluded
Assets".
(d) Instruments of Transfer; Further Assurances. At Closing, the
Seller shall execute and deliver to the Purchaser such instruments of
conveyance, transfer and assignment as shall be necessary or appropriate to
transfer to the Purchaser all of the Seller's right, title and interest in and
to the Purchased Assets, the CCGA Lease, the CCGA Gaming Agreement and the
Operating Agreements. The form of Assignment and Assumption of Operating
Agreements, the form of Assignment and Assumption of the CCGA Lease, the form
of Assignment and Assumption of the CCGA Gaming Agreement, and the form of Bill
of Sale are attached hereto as Exhibits "A", "B", "C" and "D", respectively.
Subsequent to Closing, the Seller shall execute and deliver, upon the request
of the Purchaser, all such further instruments of conveyance, transfer and
assignment as may be reasonably requested by the Purchaser to transfer to and
vest in the Purchaser all of the Seller's right, title and interest in and to
all of the Purchased Assets, the CCGA Lease, the CCGA Gaming Agreement and the
Operating Agreements in accordance with the terms of this Agreement.
2. Purchase Price, Allocation and Non-Assumption of Liabilities.
(a) Purchase Price. The total purchase price for the Purchased
Assets shall be Forty Million Dollars ($40,000,000.00) (the "Purchase Price"),
plus the value of pre-payments and deposits relating to certain contracts
referred to in Paragraph 2(d) below, which shall be paid by the Purchaser to
the Seller as follows:
(i) Within five (5) days of the full execution of this
Agreement, Purchaser will deposit with Seller
marketable securities (the "Deposit Shares") in the
form of common stock of Casino America, Inc., a
Delaware corporation ("Casino America"), having a
Value (as hereinafter
4
6
defined) of not less than $750,000.00 and an
appropriate assignment of same to Seller. The
Deposit Shares shall be retained by Seller or
returned to Purchaser, in whole or in part, as
follows:
(A) The Deposit Shares shall be retained by and
become the property of Seller if the
condition to Closing specified in Paragraph
6(k) has not been satisfied or waived and the
transaction contemplated herein has not
closed by 11:59 p.m. on November 15, 1996
through no fault of the Seller and the
Shareholders. In such event, Seller shall
retain as its own only such Deposit Shares as
shall then have a Value of $750,000.00 and
shall return to Purchaser all such Deposit
Shares in excess of $750,000.00 in value; or
(B) Deposit Shares as shall then have a Value of
$500,000.00 shall be retained by and become
the property of Seller if any or all of the
conditions of Closing specified in Paragraphs
6(c), 6(d), 6(f), 6(g), and/or 6(h) have not
been satisfied or waived by 11:59 p.m. on
November 15, 1996, and the Purchaser fails to
close the transaction contemplated hereunder
through no fault of the Seller and the
Shareholders. In such event, Seller shall
retain as its own only such Deposit Shares as
shall then have a Value of $500,000.00 and
shall return to Purchaser all such Deposit
Shares in excess of $500,000.00 in Value; or
(C) The Deposit Shares and the assignment shall
be returned to Purchaser if (i) any or all of
the conditions of Closing specified in
Paragraphs 6(a), 6(b), 6(e), 6(i), and/or
6(j) have not been satisfied or waived and
the transaction contemplated herein is not
closed by 11:59 p.m. on November 15, 1996,
or (ii) upon the Closing of the transaction
which is the subject of this Agreement.
(D) The term "Value" shall be the price per share
of stock represented by the average of the
closing bid and asked prices of Casino
America common stock, as quoted by the
National Association of Securities Dealers,
Inc. Automated Quotations System (NASDAQ) (or
such other securities association, quotation
system or securities exchange on which the
Casino America common stock is then listed or
authorized for quotation), for the ten (10)
trading days prior to the date of the
Agreement, or in the event the Deposit Shares
(or a portion thereof) are retained by the
Seller pursuant to subparagraphs (A) or (B)
above, the Value shall be based upon the
average of the closing bid and asked prices
of Casino America common stock for the ten
(10) trading days prior to November 15, 1996.
Seller and Purchaser agree that it is their
intention that if on the date Seller is
entitled to retain all or a portion of the
Deposit Shares as its own (the "Retention
Date"), the Value of the Deposit Shares is
less than the amount specified ($750,000.00
or $500,000.00 as the case may be), Purchaser
shall promptly pay to Seller in cash or
additional Deposit Shares the difference
between the Value and the amount specified,
to the end that Seller will have received a
total of $750,000.00 or $500,000.00 as the
case may be in Deposit Shares and/or cash on
the Retention Date.
(ii) The Purchase Price shall be paid by Purchaser to
Seller by certified or cashier's check or wire
transfer of immediately available funds to Seller's
account at Dubuque Bank and Trust Company, Dubuque,
Iowa on the Closing Date.
(b) Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets as described in Schedule 2(b) hereto. The
parties hereto acknowledge that such allocation is based on the fair market
5
7
values of the Purchased Assets and the parties agree to reflect the sale and
purchase of the Purchased Assets for all purposes, including income tax
purposes, in a manner wholly consistent with the foregoing.
(c) Non-Assumption of Liabilities. Except for the obligation to
fulfill the Operating Agreements, the CCGA Lease, the CCGA Gaming Agreement and
the Gaming Liabilities and other liabilities specifically assumed by Purchaser
as set forth herein (collectively, the "Assumed Liabilities"), the Purchaser
does not and will not assume any debts, obligations or liabilities of the
Seller whatsoever, and the Seller covenants to timely pay and discharge all of
its debts, obligations and liabilities.
(d) Reimbursement for Pre-Payments and Deposits. In addition to
payment of the Purchase Price, the Purchaser shall reimburse the Seller for the
remaining balance of any pre-paid contracts or deposits, including, but not
limited to, any pre-payments or deposits made by Seller relating to
maintenance, entertainment, and insurance, but only to the extent Purchaser
receives or is entitled to receive the remaining goods, services, or value of
said prepaid maintenance, entertainment, or insurance.
3. Representations and Warranties of the Seller and the
Shareholders. The Seller and the Shareholders, jointly and severally,
represent and warrant to and agree with the Purchaser that:
(a) Organization and Standing of the Seller. The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Iowa. The Seller has full corporate power and authority
to conduct its business as it is now being conducted and to enter into this
Agreement, to perform its obligations hereunder and to consummate the
transaction contemplated hereby.
(b) Authorization. The execution, delivery and performance of
this Agreement by the Seller have been duly authorized by all necessary
corporate proceedings on the part of the Seller and this Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable in
accordance with its terms.
(c) Financial Statements. The Seller has delivered to the
Purchaser (i) the Seller's unaudited balance sheet as of April 30, 1996 and the
related statements of operations for the four (4) month period then ended, as
certified by the Chief Financial Officer of the Seller at April 30, 1996, (ii)
audited balance sheets of the Seller as of December 31, 1993, 1994 and 1995,
and the related statements of operations, cash flows and stockholders' equity
for the fiscal years then ended, together with the related notes and schedules
thereto, as certified by Honkamp Krueger & Co., certified public accountants.
The Seller will also deliver to the Purchaser between the date hereof and
Closing monthly unaudited balance sheets and statements of operations. All of
such financial statements referred to in the
6
8
immediately preceding sentences are hereinafter referred to as the "Seller's
Financial Statements". The Seller's Financial Statements (A) reflect all
transactions at fair value (including transactions with related or affiliated
parties), (B) reflect all costs and expenses associated with operating the
Vessel as if the Vessel had been owned by the Seller for all periods presented
(except deducting rent and adding in depreciation), (C) are in accordance with
the books of account and records of the Seller and fairly present the financial
position of the Seller at the dates indicated, (D) contain and reflect reserves
for all material liabilities and (E) were prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior
accounting periods. Except to the extent reflected or reserved against in the
Seller's Financial Statements, the notes thereto, or any Schedule provided for
in this Section 3, neither the Seller nor the Purchased Assets are subject to
any liabilities (whether accrued, absolute, contingent or otherwise) or adverse
obligations, whether or not such liabilities or obligations are normally shown
or reflected on a balance sheet, other than liabilities and obligations arising
in the ordinary course of business since the date of the Seller's Financial
Statements. none of which are material and adverse.
(d) Absence of Certain Changes or Events. Except as set forth in
any Schedule delivered to the Purchaser pursuant to this Section 3 or except as
contemplated by this Agreement, since December 31, 1995, the Seller and the
Purchased Assets have been operated in the ordinary course of business and
there has not been:
(i) Any material damage, destruction or loss (whether or
not covered by insurance) adversely affecting the
Purchased Assets (the Purchaser is aware of the May
10, 1996 storm damage to the Vessel, Belle's Landing
Barge, Guest Services Barge, and Utility Barge which
will be repaired by Seller by December 31, 1996) and
shall be done in a good and workmanlike manner;
(ii) Any strike, work stoppages or other material labor
disputes adversely affecting the Purchased Assets or
their operation;
(iii) Any sale, transfer, pledge, mortgage or other
disposition of any tangible (real or personal) or
intangible assets of the Seller relating to the
Purchased Assets, except (a) in the ordinary course
of business and (b) for an amount less than
$1,000.00; provided, that Seller may dispose of
storm-damaged items which are replaced;
(iv) Any termination, waiver or cancellation of rights or
claims under any of the CCGA Lease, the CCGA Gaming
Agreement or the Operating Agreements;
(v) Any agreement or commitment by the Seller to take any
of the actions described in Sections 3(d)(ii), (iii)
or (iv) above;
(vi) To the knowledge of Seller and the Shareholders, any
statute, rule, regulation or order adopted or
promulgated or proposed or discussed by a
governmental body which adversely affects the
Purchased Assets and/or the Seller's Gaming
Operation; or
(vii) Any other change in the condition (financial or
otherwise) or business operations of the Seller which
has, or could reasonably be expected to have, a
material adverse affect on the
7
9
Purchased Assets. Furthermore, there has not been
any statute, rule, regulation or order adopted or
promulgated or other change in the Seller's Gaming
Operation occurring prior to January 1, 1996 which
could reasonably be expected to have a material
adverse effect on the Purchased Assets or the
operation thereof.
(e) Tax Matters. The Seller has paid or made adequate provisions
for all United States, state, county and local and other taxes, including
without limitation, income taxes, payroll taxes, corporate franchise taxes,
gaming taxes, admission taxes, sales, excise and use taxes and ad valorem taxes
with respect to the Purchased Assets and all payments required by the Seller
pursuant to the CCGA Gaming Agreement. The Seller has timely filed in correct
form all tax returns and reports required to be filed by it on or before the
date of this Agreement with all such taxing authorities.
(f) Operating Agreements. Schedule l(a)(xii) lists all Operating
Agreements and the remaining term thereof. Each and all of the Operating
Agreements have been duly executed by the Seller, are currently in effect, are
valid and binding upon the parties thereto and are enforceable in all material
respects in accordance with their terms. Neither the Seller nor the
Shareholders are aware of any facts or existing circumstances that would
prevent the performance of any of the Operating Agreements. Except as set
forth on Schedule l(a)(xii), neither the Seller nor any other party is in
default under any of the Operating Agreements, nor has any claim of default
been asserted or notice of termination issued by the Seller or any such other
party. The Seller has committed no act and there has been no omission which
will result in the breach by it of any Operating Agreement. The Seller has
provided the Purchaser with true and correct copies of such Operating
Agreements.
(g) CCGA Lease and CCGA Gaming Agreement. Each of the CCGA Lease
and the CCGA Gaming Agreement have been duly executed by the Seller, are
currently in effect and are valid and binding upon the parties thereto and are
enforceable in all material respects in accordance with their respective terms.
Neither the Seller nor the Shareholders are aware of any facts which would
prevent the performance of the CCGA Lease or the CCGA Gaming Agreement.
Neither the Seller nor the other party to the CCGA Lease or the CCGA Gaming
Agreement is in default thereunder nor has any claim of default been asserted
or notice of termination issued by the Seller or any such other party. The
Seller has committed no act and there has been no omission which will result in
the breach by it of either the CCGA Lease or the CCGA Gaming Agreement. The
Seller has provided the Purchaser with true and correct copies of the CCGA
Lease and the CCGA Gaming Agreement. The term of the CCGA Gaming Agreement
expires on April 30, 2000 and the term of the CCGA Lease expires on April 30,
2000 or upon termination of the CCGA Gaming Agreement, whichever occurs first.
8
10
(h) Vessel. To the knowledge of Seller and Shareholders, the
Vessel has been constructed in compliance with applicable United States Coast
Guard ("USCG") regulations, C.F.R. 46 Subchapter T, and classified as a
passenger vessel for the carriage of a maximum of 1,250 passengers and crew.
The Vessel has a current, valid Certificate of Inspection. The Seller agrees
to assign to the Purchaser all transferable warranties relating to equipment
located on the Vessel to the Purchaser.
(i) Title to Properties and Related Matters. The Purchased Assets
will be owned by the Seller on the Closing Date by good title, free and clear
from all security interests, mortgages, liens, claims, title defects and
encumbrances. By executing this Agreement, RRR, Inc. agrees to convey to
Seller by merger or otherwise on or before the Closing Date, the Vessel, the
vehicles identified as owned by RRR, Inc. on Schedule 1(a)(iv), and the kitchen
equipment identified as owned by RRR, Inc. on Schedule 1(a)(xviii). The Vessel
and vehicles and kitchen equipment owned by RRR, Inc. shall have been conveyed
to the Seller by merger or otherwise on or before Closing so that such assets
may be conveyed by Seller to the Purchaser in accordance with the terms hereof.
All of the Purchased Assets are in good operating condition and repair, subject
to ordinary wear and tear. All of such Purchased Assets have been properly
maintained, with no extraordinary maintenance planned or anticipated, and are
adequate and sufficient for the operation of a riverboat gaming facility as
historically operated by the Seller. There are no material capital
expenditures currently contemplated or necessary to maintain the Seller's
Gaming Operation or the Purchased Assets. The deadline for the next scheduled
hull inspection of the Vessel is October, 1999.
(j) Capital Leases. Seller has no capital leases.
(k) Litigation and Proceedings. Except as described in Schedule
3(k), no action or suit has been served and, to the knowledge of the Seller or
the Shareholders, no proceedings are pending or threatened against or affecting
the Seller, at law or in equity, or before or by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind, that might adversely affect or relate to the
Purchased Assets or the operation thereof, or the transaction contemplated
hereby, whether or not fully covered by insurance; and the Seller is not in
default with respect to any judgment, order, writ, injunction, decree, award,
or in default with respect to any rule or regulation of any court, arbitrator
or governmental department, commission, board, bureau, agency or
instrumentality applicable to the Purchased Assets. To the knowledge of Seller
and Shareholders, the Seller has complied in all material respects with all
applicable Federal, state, municipal and other political subdivision or
governmental agency (including, without limitation, the Iowa Racing and Gaming
Commission) statutes,
9
11
ordinances and regulations, in every applicable jurisdiction, in respect of the
ownership and/or operation of the Purchased Assets.
(l) Indebtedness. Attached as Schedule 3(l) is a list of all
indebtedness, liens and security interests to which the Purchased Assets are
subject, including a description of such indebtedness and the terms thereof,
all of which shall be paid by the Seller and released on or prior to Closing.
(m) Employee Relations. Attached as Schedule 3(m) is a list of
all employees of the Seller employed in the Seller's Gaming Operation (the
"Employees") and their respective annual salaries, and separately indicating
any bonuses and incentive compensation paid to such employees. There are no
persons performing work on behalf of the Seller who are not employees of the
Seller. Except as set forth in Schedule 3(m), there are no written employment
agreements in effect between the Seller and any Employees and there are no
collective bargaining agreements covering any Employees. The Employees are not
members of a collective bargaining group and no union organizing activities are
in process or contemplated. There is no labor strike, dispute, slowdown or
representation campaign or work-stoppage pending or threatened with respect to
the Employees of the Seller.
(n) Employee Plans. The Seller heretofore has either delivered to
the Purchaser or made available for inspection by the Purchaser true and
complete copies (or a written description of the material terms and
conditions), of any and all bonus, profit-sharing, stock option, pension,
employee benefit, severance and similar plans and arrangements maintained by
the Seller for the Employees (collectively, the "Employee Plans") as listed on
Schedule 3(n) hereto.
(o) OSHA. Except as shown on Schedule 3(o), the Seller has not
received notice nor is Seller aware of any violation by the Seller, and to the
knowledge of Seller and Shareholders, the Seller is not in violation of and has
not been in violation of, the Occupational Safety and Health Act of 1970,
including rules and regulations thereunder, or any other federal, state, local
or foreign laws, including rules and regulations thereunder, regulating or
otherwise affecting employee health and safety, with respect to any Purchased
Assets or the operations thereof.
(p) Absence of Adverse Agreements; No Violations. The Seller is
not a party to any instrument or agreement or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree, award,
rule or regulation which, to the best of the Seller's and the Shareholders'
knowledge and belief, materially and adversely affects the Purchased Assets.
To the knowledge of Seller and Shareholders, except as shown in Schedule 3(k),
neither the Purchased Assets nor the Seller's Gaming Operation is in violation
of any federal, state,
10
12
county, or local law or regulation (including, without limitation, any rule or
regulation of the Iowa Racing and Gaming Commission), which violation, if not
corrected, may have a material, adverse affect on the Purchased Assets and/or
the operation thereof.
(q) No Defaults. The Seller is not in default under, nor, to the
best of the Seller's and the Shareholders' knowledge and belief, has any event
occurred which with notice or lapse of time or both, could result in a waiver
(except caused by the statute of limitations) of any material right or default
under, any outstanding indenture, mortgage, lease, contract or agreement to
which the Seller is a party or by which the Seller or the Purchased Assets may
be bound.
(r) No Conflicts. The execution and performance of this Agreement
and the transactions contemplated hereby will not violate any provision of or
result in a breach of or constitute a default under the Articles of
Incorporation or By-Laws of the Seller, or under any order, writ, injunction or
decree of any court, governmental agency or arbitration tribunal, or under any
contract, agreement or instrument to which the Seller is a party or by which
its properties may be bound, including, without limitation, the CCGA Lease, the
Operating Agreements or the CCGA Gaming Agreement, or, to the best of the
Seller's and the Shareholders' knowledge and belief, under any law, statute or
regulation. Seller has advised Purchaser and Purchaser acknowledges that
approval of this Agreement by the Iowa Racing and Gaming Commission must be
obtained.
(s) Environmental Violations. To the knowledge of Seller and
Shareholders, the Seller is not in violation of any federal, state, country or
local law, rule or regulation, including, without limitation, any applicable
building, zoning or other land use requirement or any law relating to pollution
or protection of the environment or Hazardous Substances (as hereinafter
defined), or any regulation of the National Board of Fire Underwriters, which
violation if not corrected may materially adversely affect the Purchaser's
operation of the Purchased Assets, nor has the Seller received any notice or is
aware that any governmental authority, insurer or other person is asserting any
violation of the same.
(t) Hazardous Substances. Except as shown on Schedule 3(t), to
the knowledge of Seller and Shareholders, there are no Hazardous Substances
located on any property utilized by the Seller, including the Vessel, the
Barges, property leased from the City of Clinton, and Real Estate sold
hereunder. As used herein, "Hazardous Substances" shall mean any material or
substance defined as "hazardous substances", "hazardous materials", "toxic
11
13
substances", "pollutants", or "hazardous waste" (including asbestos), under
federal, state and local laws regulating hazardous or toxic substances.
(u) Insurance Policies. Included in Schedule 3(u) is a true and
complete schedule of all policies of fire, public liability and other kinds of
insurance maintained as of the date hereof by the Seller relating to the
Seller's Gaming Operation and the Purchased Assets, which schedule includes,
without limitation, the kind of insurance, the insurer, the amount of coverage,
the expiration date, the annual premium, the person(s) to whom the proceeds are
payable, the policy number and any pending claim(s) thereunder. All such
policies are binding and in full force and effect, and there exists no default,
or event that with notice or the lapse of time or both, would constitute a
default, under any such insurance policy by the Seller or, to the best
knowledge of the Seller and the Shareholders, by the insurance company issuing
such policy.
(v) Inventories. To the knowledge of Seller and Shareholders, the
Inventories are not obsolete or defective and such items are saleable or usable
in the ordinary course of business. The levels of the Inventories currently on
hand are not, and the amount of Inventories on hand as of the Closing will not
be, materially in excess of or less than that necessary for the operation of
the Seller's Gaming Operation in the ordinary course of business consistent
with past practices of the Seller (approximately 30 days for meat, poultry and
fish and approximately 30 days for plastic cups, wet wipes, napkins, matches,
garbage bags, and table covers).
(w) Brokers. Neither the Seller nor any Shareholder is a party
to or in any way obligated under a contract or other agreement, and there are
no outstanding claims against any of them, for the payment of any broker's or
finder's fees in connection with the origin, negotiation, execution or
performance of this Agreement.
(x) Disclosure. Neither this Agreement, the Schedules attached
hereto, nor any other document furnished by the Seller to the Purchaser contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein and therein not misleading,
and except as disclosed herein or therein, there is no fact (other than matters
of a general economic or a political nature which do not effect the business of
the Seller uniquely) known to the Seller or the Shareholders which materially
adversely affects or in the future can be reasonably expected to materially
adversely affect the Purchased Assets.
(y) DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE
LIMITED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH
REGARD
12
14
TO ANY OF THE PURCHASED ASSETS, INCLUDING, BUT NOT LIMITED TO, THE VESSEL. THE
ONLY WARRANTIES OF SELLER TO PURCHASER ARE THOSE SET FORTH IN THIS AGREEMENT.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE VESSEL AND ALL PERSONAL
PROPERTY INCLUDED IN THIS SALE ARE BEING SOLD IN THEIR "AS IS" AND "WHERE IS"
CONDITION ON THE CLOSING DATE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, PURCHASER AGREES TO ACCEPT THE VESSEL, ANY EQUIPMENT, AND ANY
PERSONAL PROPERTY IN THEIR "AS IS" AND "WHERE IS" CONDITION ON THE CLOSING
DATE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SUITABILITY OF THE VESSEL FOR
ANY USE INTENDED BY PURCHASER.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING ANY BUSINESS CLIMATE TO BE
EXPERIENCED BY PURCHASER AFTER THE CLOSING, OR THE PROFITABILITY OF PURCHASER'S
OPERATIONS AFTER THE CLOSING, OR THE SUITABILITY OF THE PURCHASED ASSETS, OR
ANY OF THEM, FOR PURCHASER'S INTENDED USE OR PURPOSES.
4. Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to the Seller and the Shareholders that:
(a) Organization, Standing and Authority of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Iowa, and has full corporate power and
authority to conduct its business as it is now being conducted, and to enter
into and carry out the provisions of this Agreement.
(b) No Violation. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any provision of the Articles of Incorporation or By-Laws of the
Purchaser, (ii) violate any provision of any agreement or other obligation to
which the Purchaser is a party or by which the Purchaser is bound or to which
its assets are subject, or (iii) violate or result in a breach of, constitute a
default under, any judgment, order, decree, rule or regulation of any court or
governmental agency to which the Purchaser is subject.
13
15
(c) Corporate Proceedings of the Purchaser. The execution,
delivery and performance of this Agreement by the Purchaser have been
authorized by the Board of Directors of the Purchaser, and this Agreement will
constitute the valid and legally binding obligation of the Purchaser,
enforceable in accordance with its terms.
(d) Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of Purchaser, threatened against or
affecting the Purchaser, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind, that might adversely affect or
relate to the transaction contemplated hereby.
(e) Consents and Approvals. Purchaser shall use its commercially
reasonable best efforts to obtain prior to the Closing any and all requisite
consents and approvals of and licensure by third parties of Purchaser and its
officers, directors, and employees, including, but not limited to, federal,
state or local public authority, including regulatory agencies, required to be
received by or on the part of Purchaser for the execution and the delivery of
this Agreement and the performance of its terms.
Crown shall use its commercially reasonable best efforts to obtain
prior to the Closing any and all requisite consents and approvals of and
licensure by third parties of Crown and its officers, directors, and
employees, including, but not limited to, federal, state or local public
authority, including regulatory agencies, required to be received by or on the
part of Crown for the execution and the delivery of the Guarantee Agreement and
the performance of its terms.
(f) Brokers. The Purchaser is not a party to or in any way
obligated under a contract or other agreement, and there are no outstanding
claims against it, for the payment of any broker's or finder's fees in
connection with the origin, negotiation, execution or performance of this
Agreement.
(g) Misstatements or Omissions. No written representation or
written warranty made by Purchaser in any document, written statement,
certificate or schedule which was furnished to the Seller by or on behalf of
Purchaser in connection with this Agreement, contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements or facts contained therein not materially misleading.
5. Additional Covenants and Agreements of the Seller.
(a) Access to Records. At all reasonable times prior to Closing,
the Seller shall give the Purchaser, its counsel, accountants and other
representatives, full and free access to all the properties, books, financial
statements, contracts, commitments, records and Purchased Assets of the Seller
so the Purchaser may have full
14
16
opportunity to make such investigation as it shall desire to make of the
business and affairs of the Seller, provided that such investigation shall not
unreasonably interfere with the operations of the Seller. Purchaser shall have
the right to conduct all due diligence investigations and inquiries that it
deems necessary or advisable to satisfy itself as to the accuracy of the
warranties and representations of Seller set forth in Section 3 above.
Purchaser shall give prompt written notice to Seller if, during Purchaser's
investigations, Purchaser discovers any information which is inconsistent with
any representation or warranty made by Seller hereunder. If this Agreement is
terminated, the Purchaser shall keep confidential and shall not use in any
manner any information or documents obtained from the Seller concerning the
business affairs of the Seller, unless readily ascertainable from public or
published information. trade sources, or already known or subsequently
developed by the Purchaser independently of any investigation of the Seller, or
received from a third party not under an obligation to the Seller to keep such
information confidential. If this Agreement is terminated, the Purchaser shall
immediately return to the Seller any documents obtained from the Seller
together with all copies thereof in the Purchaser's possession or under the
Purchaser's control.
(b) Preservation of Assets. From the date hereof until the
Closing Date, subject to prudent business judgment, the Seller will use its
best efforts to preserve the Purchased Assets, reasonable wear and tear
excepted, to keep available to the Purchaser the services of employees of the
Seller related to the Purchased Assets and to preserve the goodwill of all
suppliers, customers, regulators, City of Clinton officials, CCGA, Ltd. and
others having business relations with them.
(c) Consents. Prior to Closing, the Seller shall use its
commercially reasonable best efforts to obtain all approvals and consents which
must be obtained in order to effectuate the transaction contemplated hereby and
to satisfy the terms and conditions of this Agreement, including, without
limitation, consents to the assignment of all Operating Agreements requiring
such consent, the CCGA Lease and the CCGA Gaming Agreement. Seller shall use
its commercially reasonable best efforts to obtain prior to the Closing any and
all requisite consents of third parties required to be obtained by Seller,
including, but not limited to, governmental or other regulatory agencies,
foreign or domestic, required to be received by or on the part of Seller for
the execution and delivery of this Agreement and the performance of its terms.
(d) Employee Plans. The Seller shall take such action as may be
appropriate with respect to any Employee Plans so that after the Closing Date,
the Purchaser shall not be obligated to any Employees, whether or not hired by
the Purchaser, with respect to and under such Employee Plans. Further, the
Seller shall be responsible for
15
17
any continuation of coverage of group health plans for any such Employees under
Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
The Seller and the Shareholders, jointly and severally, agree to indemnify the
Purchaser and hold the Purchaser harmless from and against any liability under
the Employee Plans, including any liability to any such Employees pursuant to
COBRA.
(e) Employment Agreements. The Purchaser and the Shareholders
listed on Schedule 5(e) agree to execute and enter into employment agreements,
effective as of the Closing Date, for the duration, compensation, vacation and
benefits shown thereon, which employment agreements shall be in the form
attached hereto as Exhibit "E". In addition, Purchaser agrees to execute and
enter into employment agreements, effective as of the Closing Date, in the form
attached hereto as Exhibit "E", with the individuals listed on Schedule 5(e)
who are not Shareholders of Seller, for the duration, compensation, vacation
and benefits shown thereon.
(f) Reimbursement for Gift Certificates. Seller agrees to
reimburse Purchaser for all gift certificates issued by Seller prior to Closing
and presented to Purchaser for redemption within one year from the Closing
Date, excluding gift certificates donated by Seller.
6. Conditions to Obligations of the Purchaser. The obligations
of the Purchaser to consummate the transaction contemplated hereby shall be
subject to the satisfaction, on or before the Closing Date, of all of the
following conditions unless expressly waived in writing by the Purchaser:
(a) Representations and Covenants. All representations and
warranties of the Seller and the Shareholders contained in this Agreement shall
be true in all material respects on and as of the Closing Date as if such
representations and warranties were made on and as of such date (except to the
extent any such representation or warranty is made as of a specified date), and
the Seller and the Shareholders shall have performed all agreements and
covenants to be performed by them on or prior to the Closing Date, and the
Purchaser shall have received a certificate dated the Closing Date, signed by
the President or a Vice-President of the Seller and the Shareholders, to the
effect that such is the case.
(b) Certified Resolutions. The Purchaser shall have received
certified copies of resolutions of the Board of Directors and the Shareholders
of the Seller, certified by the Secretary or an Assistant Secretary of the
Seller, duly authorizing and approving the execution, delivery and performance
of this Agreement and consummation of the transaction contemplated hereby.
16
18
(c) Approvals and Consents. The Seller and the Shareholders shall
have obtained and delivered to the Purchaser all approvals and consents which
must be obtained in order to effectuate the transaction contemplated hereby and
to satisfy the terms and conditions of this Agreement, including, but not
limited to, any consents required to assign the Operating Agreements, the CCGA
Lease and the CCGA Gaming Agreement to the Purchaser, and all approvals and
consents from all regulatory agencies having authority over any matter covered
by this Agreement including, without limitation, the Iowa Racing and Gaming
Commission; provided, however, that Purchaser shall have the sole
responsibility for obtaining an operator's license and occupational licenses
for its key persons and employees from the Iowa Racing and Gaming Commission.
(d) Regulatory Approval. The Purchaser and Crown, if necessary,
and their respective officers, directors and employees shall have been licensed
by all regulatory authorities having jurisdiction over the riverboat gaming
operation and related activities of the Purchaser to be conducted by the
Purchaser with the Purchased Assets, including without limitation, the Iowa
Racing and Gaming Commission. Purchaser agrees to use its commercially
reasonable best efforts to obtain prior to Closing such licensure and any and
all requisite consents of third parties to be obtained by Purchaser, including
all necessary regulatory approvals.
(e) Opinion of Counsel. The Purchaser shall have received the
opinion of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., counsel for the
Seller, dated the Closing Date, to the effect that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Iowa, and, in such counsel's opinion, has
full power and authority to carry on its business as
it is now being conducted and to enter into this
Agreement and perform its obligations thereunder;
(ii) In such counsel's opinion, the Agreement has been
duly and validly authorized, executed and delivered
by the Seller and the Shareholders, and (assuming
valid execution and delivery by the other party
thereto) constitutes the legal, valid and binding
obligation of the Seller and the Shareholders
enforceable against the Seller and the Shareholders
in accordance with its terms (except as otherwise
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors'
rights and except that such counsel need not express
an opinion as to whether any covenant contained
herein is specifically enforceable);
(iii) In such counsel's opinion, the execution and delivery
of the Agreement by the Seller, the consummation by
the Seller of the transaction contemplated thereby
and compliance by the Seller with the provisions
thereof will not (1) conflict with or result in any
breach of any provision of the Articles of
Incorporation or By-Laws of the Seller, (2) violate
any court order, writ, injunction or decree
applicable to the Seller, (3) violate any material
contract, agreement, undertaking, understanding or
commitment to which the Seller is a party or by which
it or its properties may be bound, (4) violate any
applicable law, rule or regulation, or (5) result in
the creation of any lien on any of the Purchased
Assets;
17
19
(iv) In such counsel's opinion, the instruments of
conveyance and assignment which will be executed and
delivered to the Purchaser by the Seller at the
Closing pursuant to the Agreement will be valid and
binding in accordance with their terms and have been
duly authorized, executed by the appropriate officers
of Seller, and will be delivered to Purchaser at
Closing;
(v) To the best of such counsel's actual knowledge and
belief, there are no legal actions or governmental
proceedings pending or threatened to which the Seller
is a party which may adversely affect the Purchased
Assets or the Purchaser's use thereof.
(f) No Material Adverse Changes. The Seller and the Shareholders
shall have delivered to the Purchaser their certificate stating that there has
been no material, adverse change in the business, operations, financial
condition or properties of the Seller, and the Purchased Assets shall not have
been materially and adversely affected due to fire, accident, other casualty or
Act of God.
(g) Pre-Acquisition Review. The Purchaser shall have completed a
pre-acquisition review of (i) the Purchased Assets, (ii) the Operating
Agreements, the CCGA Lease and the CCGA Gaming Agreement, and the respective
terms and provisions thereof, and (iii) the financial statements and books and
records of the Seller relating to the Purchased Assets and shall have
discovered no conditions, facts, circumstances or change in the business,
properties, operations, condition (financial or otherwise) or prospects of the
Purchaser's operation of the Purchased Assets which, in the reasonable, good
faith opinion of the Purchaser, could have a material and adverse effect on the
value to the Purchaser of the Purchased Assets.
(h) Absence of Litigation. No litigation, governmental action,
insolvency, receivership or other proceeding shall have been threatened,
asserted or commenced which materially adversely affects the Purchased Assets
and the transaction contemplated hereby.
(i) Release of Liens. Prior to the Closing, all liens, mortgages
or other encumbrances to which the Purchased Assets are subject shall have been
released and the Purchaser shall be provided with evidence of such releases
having been filed in the appropriate offices of governmental authorities in
each jurisdiction where such filing is necessary for proper filing in
accordance with applicable law.
(j) Transfer Documents. The Seller shall have tendered for
delivery to the Purchaser the Bill of Sale, Assignment and Assumption of
Operating Agreements, the Assignment and Assumption of the CCGA Lease, the
Assignment and Assumption of the CCGA Gaming Agreement, and such other
instruments of conveyance as reasonably shall be necessary to transfer to the
Purchaser all right, title and interest in and to the Purchased Assets in form
reasonably satisfactory to the Purchaser.
18
20
(k) Financing. The Purchaser shall have obtained financing for
not less than $20,000,000.00 of the Purchase Price upon terms and conditions
reasonably satisfactory to Purchaser; provided, however, Purchaser covenants
and agrees Purchaser will use its commercially reasonable best efforts to
obtain prior to Closing said financing and agrees that it will not decline any
offer of financing which includes a term of three (3) years or more, payments
calculated on an amortization schedule over seven (7) years or more, an
interest rate of national prime plus one (1) point or less, a requirement that
the loan be guaranteed by Crown, no personal guarantees, and no other terms or
conditions which are unreasonable in Purchaser's good faith judgment, which
terms may relate to, without limitation, financial covenants, affirmative and
negative covenants, restrictions on acquisitions of properties or business,
yield enhancement obligations (such as warrants) or excessive loan closing or
origination points. The Purchaser's failure to close the transaction
contemplated hereunder for failure of the condition set forth in this Section
6(l) shall entitle Seller to retain the Deposit Shares in accordance with
Section 2(a) hereof and, in such event, neither the Purchaser nor Crown shall
have any further obligation or liability hereunder.
(l) Extension Option - CCGA Lease. The CCGA Lease shall be
amended to grant to the Purchaser an option or options to extend such
agreement through April 30, 2003 on terms substantially similar to the
existing terms.
(m) Extension Option - CCGA Gaming Agreement. The CCGA Gaming
Agreement shall be amended to grant to the Purchaser an option or options to
extend such agreement through April 30, 2003 on terms substantially similar to
the existing terms, including cost of living adjustments to the fees paid to
CCGA.
7. Conditions to Obligations of the Seller and the Shareholders.
The obligation of the Seller and the Shareholders to consummate the transaction
contemplated hereby shall be subject to the satisfaction, or, or before the
Closing Date, of all of the following conditions, unless expressly waived in
writing by the Seller and the Shareholders:
(a) Representations and Covenants. All representations and
warranties of the Purchaser contained in this Agreement shall be true in all
material respects on and as of the Closing Date as if such representations and
warranties were made on and as of such date (except to the extent any such
representation or warranty is made as of a specified date), and the Purchaser
shall have performed all agreements and covenants to be performed by it on or
prior to the Closing Date, and the Seller shall have received a certificate
dated the Closing Date, signed by the President or a Vice-President of the
Purchaser, to the effect that such is the case.
19
21
(b) Opinion of Counsel. The Seller shall have received the
opinion of T. J. Falgout, III, legal counsel for the Purchaser, dated the
Closing Date, to the effect that:
(i) The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Iowa and, in such counsel's opinion,
has full power and authority to carry on its business
as it is now being conducted and to enter into this
Agreement and perform its obligations thereunder;
(ii) In such counsel's opinion, the Agreement has been
duly and validly authorized, executed and delivered
by the Purchaser, and (assuming valid execution and
delivery by the other parties thereto) constitutes
the legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in
accordance with its terms (except as otherwise
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors'
rights, and except that such counsel need not express
an opinion as to whether any covenant contained
herein is specifically enforceable); and
(iii) In such counsel's opinion, the execution and delivery
of the Agreement by the Purchaser, the consummation
by the Purchaser of the transaction contemplated
thereby and compliance by the Purchaser with the
provisions thereof will not (1) conflict with or
result in any breach of any provision of the Articles
of Incorporation or ByLaws of the Purchaser, (2)
violate any court order, writ, injunction or decree
applicable to the Purchaser, (3) violate any material
contract, agreement, undertaking, understanding or
commitment to which the Purchaser is a party or by
which it or its properties may be bound, or (4)
violate any applicable law, rule or regulation.
(c) Consent to Assignment of the CCGA Lease. The Seller shall
have obtained the consent and approval of the City of Clinton to the assignment
of the CCGA Lease from the Seller to the Purchaser.
(d) Approval of Iowa Racing and Gaming Commission. The Seller
shall have obtained the consent and approval of the Iowa Racing and Gaming
Commission to the transactions contemplated by this Agreement. The Purchaser
understands and acknowledges that Purchaser has the sole responsibility for
obtaining an operator's license and occupational licenses for its key persons
and employees from the Iowa Racing and Gaming Commission.
(e) Certified Resolutions. The Seller shall have received
certified copies of resolutions of the Board of Directors of the Purchaser,
certified by the Secretary or an Assistant Secretary of the Purchaser,
authorizing the execution, delivery and performance of this Agreement.
8. The Closing. The closing hereunder (the "Closing") shall take
place at the offices of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., 200
Security Building, Dubuque, Iowa 52001, at 10:00 a.m. local time on the date
which is no later than five (5) business days after all conditions of the
Closing set forth in Sections 6 and 7 hereof have been satisfied or waived, or
at such subsequent time and day or other location as may be mutually agreed by
the Purchaser, the Seller and the Shareholders, but in no event later than
November 15, 1996, unless otherwise mutually agreed by the parties hereto. The
date and time of the Closing is herein called the "Closing Date".
20
22
This Agreement shall automatically terminate and be of no further force and
effect if any of the conditions of the Closing set forth in Sections 6 and 7
hereof have not been satisfied or waived by 11:59 p.m. on November 15, 1996,
unless otherwise mutually agreed by the parties hereto.
Seller and Shareholders shall not be liable under this Agreement or
deemed in default of this Agreement, including but not limited to Seller's
obligations with respect to delivery, for any failure of performance of any
part of this Agreement resulting directly or indirectly from any delay caused
by Purchaser or any force majeure event, including without limitation,
lightning; fire; strikes or labor disputes; floods; acts of God; the elements,
including rain, tornadoes, and hurricanes; war; civil disturbances; acts of
civil or military authorities or the public enemy; condemnation or taking by
eminent domain. If a force majeure event prevents timely performance of this
Agreement by Seller and Shareholders, the Purchaser may extend the period for
Closing for a reasonable period, but not later than 11:59 p.m. on December 31,
1996, or may terminate this Agreement by serving written notice on the Seller
within thirty (30) days after such force majeure event.
In the event of a partial destruction of any or all of the Purchased
Assets prior to Closing, meaning a destruction which can be repaired within
sixty (60) days after the occurrence, Seller shall repair such damages within
sixty (60) days of its occurrence and shall deliver the repaired Purchased
Assets to Purchaser according to this Agreement, except that the Closing and
delivery of such repaired Purchased Assets shall be extended by the time for
such repairs, not to exceed sixty (60) days.
9. Nature and Survival of Representations and Warranties.
(a) Nature of Statements. All statements contained in this
Agreement and any schedule, document or any certificate or other instrument
delivered by or on behalf of the Seller and the Shareholders or the Purchaser
pursuant to this Agreement or in connection with the transactions contemplated
hereby shall be deemed representations and warranties made by the Seller and
the Shareholders or the Purchaser, as the case may be.
(b) Survival of Representations and Warranties. All
representations, warranties, covenants, agreements and undertakings contained
herein or in any schedule, certificate or other document shall remain operative
and in full force and effect, and shall survive the Closing Date and the
delivery of all consideration and documents pursuant to this Agreement for a
period of three (3) years from the date of Closing.
10. Indemnification by the Seller and the Shareholders and
Related Matters.
21
23
(a) Indemnification by the Seller and Shareholders. The Seller
and the Shareholders, jointly and severally, agree to defend, indemnify and
hold harmless the Purchaser and its respective successors and assigns, from,
against and in respect of any and all loss or damage resulting from:
(i) The breach by the Seller or the Shareholders of any
of their warranties, representations, covenants,
agreements or undertakings contained herein;
(ii) The Seller's failure to pay or otherwise satisfy any
accounts payable, debts, obligations or liabilities
whatsoever of the Seller, whether accrued, absolute,
fixed, contingent or otherwise, and whether now known
or hereafter discovered and whether presently
existing or hereafter arising, unless expressly
assumed by the Purchaser pursuant to Section l(b)
hereof;
(iii) Any acts or omissions of the Seller occurring prior
to the Closing Date; and
(iv) Any liability arising out of any and all actions,
suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable legal and
accounting fees) incident to any of the foregoing
(collectively, the "Losses"). Notwithstanding the
foregoing, the Seller and the Shareholders shall not
be liable until the Losses exceed $2,000.00 in the
aggregate.
(b) Procedure for Making Claims. If and whenever the Purchaser
desires to claim indemnification by the Seller and the Shareholders pursuant to
the provisions of this Section 10, the Purchaser shall promptly deliver to the
Seller and the Shareholders a certificate signed by the President or
Vice-President of the Purchaser (the "Notice of Claim") (i) stating that the
Purchaser its successors and assigns, will pay or accrue losses, damages or
expenses in an aggregate stated amount if known to which the Purchaser is
entitled to indemnification pursuant to this Section and (ii) specifying the
individual items of loss, damage or expense included in the amount if known so
stated and the nature of the misrepresentation, breach of warranty or claim to
which such item is related, provided, however, failure to notify the Seller and
the Shareholders shall relieve the Seller and the Shareholders from liability
only if it is prejudiced thereby. If the misrepresentation, breach of warranty
or claim to which such items relates is not cured within ten (10) days of the
Seller's and the Shareholders' receipt of the Notice of Claim, the Purchaser,
its successors and assigns, shall be entitled to pay or accrue such loss,
damage or expense and obtain indemnification from the Seller and the
Shareholders in accordance with this Section 10. The Seller and the
Shareholders shall have the right to defend any claim by a third party at the
expense of the Seller and the Shareholders. The Purchaser shall provide to the
Seller and the Shareholders prompt and complete disclosure of all pertinent
information in the possession of or available to the Purchaser and shall extend
full and timely assistance in the cooperation in the investigation of the
defense of the claim, suit or action, with respect to which such
indemnification is claimed. The Seller and the Shareholders, in the defense of
any such suit, action or proceeding, shall not consent to the entry of any
judgment or
22
24
decree except with the written consent of the Purchaser nor enter into any
settlement (except with the written consent of the Purchaser) which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to the Purchaser of a complete release from every liability in
respect of such claim, suit, action or proceeding. In any defense of any claim
by a third party, the Purchaser shall have the right (but shall not be
obligated) to participate in such defense through counsel of its own selection
and at its own expense.
11. Indemnification by the Purchaser and Related Matters.
(a) Indemnification by the Purchaser. The Purchaser agrees to
defend, indemnify and hold harmless the Seller and Shareholders, their
successors and assigns from, against and in respect of any and all loss or
damage resulting from:
(i) The breach by the Purchaser of any of its warranties,
representations, covenants, agreements or
undertakings contained herein;
(ii) The Purchaser's failure to pay or otherwise satisfy
any of the Assumed Liabilities;
(iii) Any acts or omissions of the Purchaser occurring on
or after the Closing Date;
(iv) All liabilities and obligations of Seller and
Shareholders for any claim, dispute or litigation
relating to, arising out of, or in connection with
any event pertaining to the Purchaser's operation of
the Purchased Assets and occurring on or after the
Closing Date;
(v) All liabilities and obligations of Seller for
workers' claims and Jones Act claims relating to any
work injury, any occupational injury (including, but
not limited to occupational hearing loss), or any
occupational disease suffered or contracted on or
after the Closing Date, or any aggravation or
re-occurrence of any such injury or disease where
such aggravation or re- occurrence is suffered or
contracted on or after the Closing Date by an
employee of the Purchaser;
(vi) All liabilities and obligations arising or occurring
on or after the Closing Date which are the subject of
any lawsuit, grievance, arbitration, charge or other
proceeding or employee complaint made or filed
against Seller, any Shareholder or Purchaser, which
complaints relate directly to the operation of the
Purchased Assets on or after the Closing Date; and
(vii) Any liability arising out of any and all actions,
suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable legal and
accounting fees) incident to any of the foregoing.
(b) Procedure for Making Claims. If and whenever the Seller
desires to claim indemnification by the Purchaser pursuant to the provisions of
this Section 11, the Seller shall promptly deliver to the Purchaser a
certificate signed by an officer of the Seller (the "Notice of Claim") (i)
stating that the Seller, its successors or assigns, will pay or accrue losses,
damages or expenses to which the Seller is entitled to indemnification pursuant
to this Section 11, and (ii) specifying the individual items of loss, damage or
expense included in the amount so stated and the nature of the
misrepresentation, breach of warranty or claim to which such item is related,
provided, however, failure to notify
23
25
the Purchaser shall relieve the Purchaser from liability only if it is
prejudiced thereby. If the misrepresentation, breach of warranty or claim to
which such item relates is not cured within ten (10) days of the Purchaser's
receipt of the Notice of Claim, the Seller, its successors or assigns shall be
entitled to pay or accrue such loss, damage or expense and obtain
indemnification from the Purchaser in accordance with this Section 11. The
Purchaser shall have the right to defend any claim by a third party at the
expense of the Purchaser. The Seller shall provide to the Purchaser prompt and
complete disclosure of all pertinent information in the possession of or
available to the Seller and shall extend full and timely assistance in the
cooperation in the investigation of the defense of the claim, suit or action,
with respect to which such indemnification is claimed. The Purchaser, in the
defense of any such suit, action or proceeding, shall not consent to the entry
of any judgment or decree except with the written consent of the Seller nor
enter into any settlement (except the written consent of the Seller) which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to the Seller of a complete release from every liability in respect
of such claim, suit, action, or proceeding. In any defense of any claim by a
third party, the Seller shall have the right (but shall not be obligated) to
participate in such defense through counsel of its own selection and at its own
expense.
12. Prorations. All revenues, income and expenses of the
Purchased Assets with respect to the period prior to the Closing shall be for
the account of the Seller, and all revenues, income and expenses of the
Purchased Assets with respect to the period after the Closing, shall be for the
account of the Purchaser. Accordingly, the following expenses shall be
allocated and apportioned as of the Closing Date on the basis of a 30-day month
and a 365-day year, and shall be paid or credited by the Seller to the
Purchaser or by the Purchaser to the Seller, as the case may be (i.e.,
prorated): (i) rent and other sums payable under each lease, conditional sale
agreement or other contract pursuant to which the Seller leases or otherwise
holds any FF&E, and each other contract and commitment described in Section
3(f) hereof; (ii) real and personal property taxes, assessments and special
district levies applicable to the Purchased Assets (based on the tax bills for
the current year, copies of which bills shall be delivered by the Seller to the
Purchaser prior to or at the Closing; (iii) charges for electricity, gas,
telephone, water, sewage, cable and other utilities furnished to the Seller's
property; (iv) annual license, permit and/or inspection fees applicable to the
Purchased Assets; (v) personal property taxes applicable to the Slot Machines
or the other Purchased Assets (based on the tax bills for the current year,
copies of which bills shall be delivered by the Seller to the Purchaser at the
Closing); (vi) annual license, permit, inspection and/or similar fees
applicable to the Purchased Assets; and (vii) other expenses, incurred by the
Seller in connection with the ownership or operation of the Purchased Assets.
The
24
26
foregoing expenses shall be allocated as soon as practicable after the Closing
Date, and in any event no later than sixty (60) days after the Closing Date,
and the Seller or the Purchaser shall promptly pay to the other the sum
determined pursuant to such subsequent allocation.
Seller covenants and agrees that Seller will set aside and not
distribute to the Shareholders from the Purchase Price an amount sufficient to
cover Seller's proration obligations under this paragraph until all such
proration obligations have been satisfied.
13. Covenants Against Competition; Solicitation of Employees.
(a) The Seller and the Shareholders agree that from and after the
Closing Date, except as employees of the Purchaser, they will not, directly or
indirectly, for five (5) years, but not to exceed the maximum period allowed
by law, own, operate, engage in or be interested in, affiliated or connected
with any person, firm, corporation or other entity operating or purporting to
operate a business which engages in riverboat gaming activities within a
one-hundred fifty (150) mile radius of the location of the Seller's Gaming
Operation in Clinton, Iowa, except for (i) a currently operating gaming
property known as "Catfish Bend Casinos" in Ft. Madison/Burlington, Iowa (and
potentially Keokuk, Iowa) and/or (ii) a currently operating gaming property
known as "Miss Marquette" in Marquette, Iowa. No covenant of the Seller and
Shareholders under this paragraph shall be applicable to ownership of,
employment in, or other participation in any form in said Catfish Bend Casinos
in Ft. Madison/Burlington/Keokuk, Iowa and/or Miss Marquette in Marquette,
Iowa. Further, no covenant of the Seller and Shareholders under this paragraph
shall be applicable to ownership of, employment in, or other participation in
any form in the marine operations, as opposed to gaming and other operations of
any riverboat gaming operator, including, but not limited to vessel piloting.
The Seller and the Shareholders hereby acknowledge that the foregoing
restrictions are reasonable in scope and necessary for the protection of the
goodwill of the Purchaser and that a breach of this covenant would cause the
Purchaser substantial damage impossible of precise determination. Accordingly,
in addition to such other rights and remedies as may be available to the
Purchaser in the event of any breach, actual or threatened, of the foregoing
provisions of this Section 13, the Purchaser (or any successor or successors
thereof) shall be entitled to enjoin such breach, actual or threatened. The
Seller and the Shareholders further agree that should any portion of the
foregoing covenant be unenforceable because of the scope thereof or the period
covered thereby or otherwise, the covenant shall be deemed to be reduced and
limited to enable it to be enforced to the extent permissible under the laws
and public policies in the jurisdiction in which enforcement is sought.
25
27
(b) The Seller and the Shareholders agree that for a period of two
(2) years after the Closing Date, they will not, directly or indirectly, induce
any employees of the Seller that are hired by the Purchaser to leave the employ
of the Purchaser.
(c) The Seller and the Shareholders agree to keep confidential and
not to use or disclose, except in furthering the Purchaser's business after
Closing, any confidential information of the Seller, including, without
limitation, any customer lists, marketing data or other proprietary information
of the Seller related to the Seller's Gaming Operation. Seller and Purchaser
agree that the identity and marketing of non-local customers (except for those
in Seller's Player's Club) and bus and motor coach companies and the like shall
not be confidential or proprietary information of Seller or Purchaser.
(d) The Purchaser and the Shareholders have agreed in Section 5(e)
hereof to execute and enter into certain employment agreements in connection
with this transaction. The Purchaser and the Shareholders acknowledge and
agree that performance of such employment agreements by the Purchaser is
additional consideration for the covenants of Seller and the Shareholders under
this Section 13 and a breach of any of said employment agreements by the
Purchaser shall render the covenants of the affected Shareholder under this
Section 13 null, void and of no further force or effect.
14. Expenses. Each party hereto shall pay its own expenses
(including without limitation counsel and accounting fees and expenses)
incident to the preparation and carrying out of this Agreement and the
consummation of the transaction contemplated hereby.
15. Notices. All notices, demands and requests which may be given
or which are required to be given by any party to the others, shall be in
writing and shall be deemed effective when either: (a) personally delivered to
the intended recipient; (b) sent by certified or registered mail, return
receipt requested, addressed to the intended recipient at the address specified
below; (c) delivered in person to the address set forth below for the party to
which the notice was given; (d) deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation,
Airborne, Emery or Purolator, addressed to such party at the address specified
below; or (e) sent by facsimile, telegram or telex, provided that receipt for
such facsimile, telegram or telex is verified by the sender and followed by a
notice sent in accordance with one of the other provisions set forth above.
Notices shall be effective on the date of delivery or receipt or, if delivery
is not accepted, on the earlier of the date that delivery is refused or three
(3) days after the date the notice is mailed. For purposes of this Section,
the addresses of the
26
28
parties for all notices are as follows (unless changes by similar notice in
writing are given by the particular person whose address is to be changed):
If to the Seller, to MISSISSIPPI BELLE II, INC., 311 Riverview
Drive, Clinton, Iowa 52733-1234;
With a copy to Stephen J. Juergens, Fuerste, Carew, Coyle,
Juergens & Sudmeier, P.C., 200 Security Building, Dubuque, Iowa 52001;
fax (319) 556-7134;
Or if to the Shareholders, to the addresses set forth on Table
I attached hereto;
With a copy to Stephen J. Juergens, Fuerste, Carew, Coyle,
Juergens & Sudmeier, P.C., 200 Security Building, Dubuque, Iowa 52001;
fax (319) 556-7134;
Or if to the Purchaser, to CROWN-MISSISSIPPI BELLE II, INC.,
4040 North MacArthur Boulevard, Suite 100, Irving, Texas 75038;
Attention: Mark D. Slusser, Chief Financial Officer; fax (214)
719-4466;
With a copy to T. J. Falgout, III, General Counsel, Crown
Casino Corporation, 4040 North MacArthur Boulevard, Suite 100, Irving,
Texas 75038; fax (214) 719-4466;
Or if to Crown, to CROWN CASINO CORPORATION, 4040 North
MacArthur Boulevard, Suite 100, Irving, Texas 75038; Attention: Mark
D. Slusser, Chief Financial Officer; fax (214) 719-4466;
With a copy to T. J. Falgout, III, General Counsel, Crown
Casino Corporation, 4040 North MacArthur Boulevard, Suite 100, Irving,
Texas 75038; fax (214) 719-4466;
Or if to RRR, Inc., to ROBERTS RIVER RIDES, INC., P.O. Box
419, Dubuque, Iowa 52004;
With a copy to Stephen J. Juergens, Fuerste, Carew, Coyle,
Juergens & Sudmeier, P.C., 200 Security Building, Dubuque, Iowa 52001;
fax (319) 556-7134.
Any party hereto may designate a different address by written notice given to
the other parties.
16. Satisfaction of Conditions, Termination.
(a) Commercially Reasonable Best Efforts to Satisfy Conditions.
The Seller and the Shareholders agree to use commercially reasonable best
efforts to bring about the satisfaction of the conditions specified in Section
6 hereof, and the Purchaser agrees to use commercially reasonable best efforts
to bring about the satisfaction of the conditions specified in Section 7
hereof.
(b) Termination. This Agreement may be terminated on or before
the Closing, without liability on the part of any party hereto to any other
party hereto, by:
(i) The written agreement of Seller and Purchaser at any
time;
(ii) The Purchaser, if a material default shall be made by
the Seller or the Shareholders in the observance or
in the due and timely performance by the Seller or
the Shareholders of any of the covenants of the
Seller or the Shareholders herein contained, or if
there shall have been a material breach by the Seller
or the Shareholders of any of the warranties and
representations of the Seller or the Shareholders
herein contained, or if the conditions of this
Agreement to be complied with or performed at or
before the Closing shall not have
27
29
been complied with or performed at the time required
for such compliance or performance and such
non-compliance or non-performance shall not have been
waived in writing by the Purchaser. In the event of
any termination pursuant to this Section 16 (other
than pursuant to Section 8 or Section 16(b)(i)),
written notice setting forth the reasons therefor
shall forthwith be given by the terminating party; or
(iii) The Seller and the Shareholders, if a material
default shall be made by the Purchaser in the
observance or in the due and timely performance by
the Purchaser of any of the covenants of the
Purchaser herein contained, or if there shall have
been a material breach by the Purchaser of any of its
warranties and representations herein contained, or
if the conditions of this Agreement to be complied
with or performed by the Purchaser at or before the
Closing shall not have been complied with or
performed at the time required for such compliance or
performance and such non-compliance or
non-performance shall not have been waived in writing
by the Seller. In the event of any termination
pursuant to this Section 16 (other than pursuant to
Section 8 or Section 16(b)(i)), written notice
setting forth the reasons therefor shall forthwith be
given by the terminating party.
17. Remedies; Limitation of Damages.
(a) In the event Purchaser breaches this Agreement, Seller and/or
Shareholders shall have a right to seek specific performance of this Agreement
or, at Seller's election, in lieu of specific performance, to seek damages,
including, but not limited to, those relating to lost profits and/or revenues;
(b) In the event the Seller fails to deliver the Vessel and other
Purchased Assets to Purchaser and such failure constitutes a breach of this
Agreement, because the Seller (i) has sold the Vessel and/or a substantial
portion of the Purchased Assets to another party; or (ii) the Seller continues
to own or operate the Vessel and the Purchased Assets itself, the Purchaser
shall have the right to seek specific performance of this Agreement or, at the
Purchaser's election, in lieu of specific performance, to seek damages,
including, but not limited to, those relating to lost profits and/or revenues.
(c) In the event the Seller fails to deliver the Vessel and other
Purchased Assets to the Purchaser for any reason other than the reasons set
forth in Section 17(b)(i) or (ii) above, and such failure constitutes a breach
of this Agreement, the Purchaser shall have the right to seek specific
performance of this Agreement or, at the Purchaser's election, in lieu of
specific performance, to seek damages, including, but not limited to, those
relating to lost profits and/or revenues, provided, however, that in no event
shall the Seller and the Shareholders be obligated to the Purchaser for lost
profits and/or revenues in excess of the sum of Five Million Dollars
($5,000,000.00).
(d) In the event Seller or the Shareholders breach a
representation, warranty or covenant of Seller or the Shareholders contained
herein after Closing and such breach constitutes a breach of this Agreement,
the Purchaser shall have the right to seek direct damages, but in no event
shall the Seller and the Shareholders be obligated to the
28
30
Purchaser for direct damages in excess of the Purchase Price and in no event
shall the Purchaser be entitled to recover indirect, special or consequential
damages, including but not limited to, those relating to lost profits and/or
revenues.
18. Miscellaneous.
(a) Assignment. This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties, provided,
however, the Purchaser shall have the right at any time prior to Closing to
assign this Agreement to its parent corporation, Crown, or to a corporation
wholly owned by Crown. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
(b) Taxes. All sales, use, excise, transfer, stamp, recording and
other taxes or fees incurred incident to the sale of the Purchased Assets to
the Purchaser shall be borne and shall be timely paid by the Seller.
(c) Bulk Sales Law. Purchaser waives compliance by Seller with
the provisions of the so-called bulk sales law of Iowa, specifically the
provisions of Section 554.6101 through 554.6111 of the Code of Iowa. The
Seller, the Shareholders and the Purchaser hereby acknowledge that the parties
will not comply with the requirements of the Iowa Bulk Sales Act. The Seller
and the Shareholders hereby agree to indemnify the Purchaser and hold it
harmless from and against any and all claims, costs, expenses (including
attorney's fees) and other damages the Purchaser may incur as a result of the
parties' failure to comply with the Iowa Bulk Sales Act.
(d) No Shopping. Unless and until this Agreement is terminated
pursuant to Section 16(b) hereof, the Seller shall not, and shall insure that
its directors, officers, agents and advisers do not, institute, pursue or enter
into any discussions or negotiations, whether or not preliminary in nature,
with any person or entity, relating to any acquisitive transaction or change in
control involving the Purchased Assets.
(e) Section and Paragraph Headings. The Section and Paragraph
headings of this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(f) Amendment. This Agreement may be amended only by an
instrument in writing executed by the parties hereto.
(g) Entire Agreement. This Agreement and the Exhibits, Schedules,
certificates and documents referred to herein constitute the entire agreement
of the parties, and supersede all understandings with respect to the subject
matter hereof. Any agreements entered into prior hereto are revoked and
superseded by this Agreement, and no
29
31
representations, warranties, inducements or oral agreements have been made by
any of the parties except as expressly set forth herein, or in other
contemporaneous written agreements.
(h) Public Announcements. No publication and/or press release of
any nature shall be issued pertaining to this Agreement or the transaction
contemplated hereby without the prior written approval of the Purchaser and the
Seller, except as may be required by law.
(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
(j) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF IOWA.
(k) Expenses of Transfer. Purchaser shall be responsible for, and
shall pay or reimburse promptly when and if due, all applicable sales,
transfer, excise, use, documentary stamps or any other similar taxes which may
be imposed in any jurisdiction, or by any authority, in connection with or
arising from the transaction contemplated by this Agreement, and shall timely
prepare and file all returns, instruments and other documents associated
therewith.
(l) Hart-Scott Rodino. Prior to Closing, Purchaser shall comply
with, or be exempted from, the Hart-Scott Rodino Act. Seller shall reasonably
cooperate with Purchaser, at Purchaser's expense, in obtaining such compliance
or exemption.
(m) Worker Assistance and Relocation Notification Act. Prior to
Closing, Seller shall comply with the Worker Assistance and Relocation
Notification Act.
(n) Jurisdiction and Venue. The jurisdiction and venue for any
litigation with respect to any term or condition of this Agreement will be the
Iowa District Court, Clinton County. The Purchaser hereby consents to the
jurisdiction of the Iowa District Court, Clinton County and agrees that the
jurisdiction and venue of any action concerning this Agreement shall be with
such court. Each party hereby waives any objection to the jurisdiction and
venue for any such litigation.
(o) Time. Time is of the essence of this Agreement and each and
every provision hereof. Except as otherwise provided in this Agreement, any
extension of time for performance of any duty under this Agreement must be in
writing signed by the parties to this Agreement.
30
32
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of
the date and year first above written.
PURCHASER:
---------
CROWN-MISSISSIPPI BELLE II, INC.
By:
----------------------------------
Edward R. McMurphy, President
By:
----------------------------------
Mark D. Slusser, Secretary
31
33
SELLER:
-------
MISSISSIPPI BELLE II, INC.
By:
---------------------------------
Kenneth J. Bonnet, President
By:
---------------------------------
Christina M. Kehl, Secretary
SHAREHOLDERS:
------------
--------------------------------------
Robert A. Kehl
--------------------------------------
Daniel J. Kehl
--------------------------------------
Kevin A. Kehl
--------------------------------------
Christina M. Kehl
--------------------------------------
Cynthia A. Winter
--------------------------------------
Kenneth J. Bonnet
AS TO PARAGRAPH 3(i):
ROBERTS RIVER RIDES, INC.
By:
---------------------------------
Kenneth J. Bonnet, President
By:
---------------------------------
Christina M. Kehl, Secretary
AS TO PARAGRAPH 4(e):
CROWN CASINO CORPORATION
By:
---------------------------------
Edward R. McMurphy, President
By:
---------------------------------
Mark D. Slusser, Secretary
32
34
TABLES, SCHEDULES AND EXHIBITS
TABLES DESCRIPTION
- --------- -----------
Table I Names and Addresses of Shareholders
SCHEDULES DESCRIPTION
- --------- -----------
l(a)(iii) FF&E
l(a)(iv) Vehicles
l(a)(viii) Slot Machines
l(a)(xii) Operating Agreements
l(a)(xiv) Leasehold Improvements
1(a)(xviii) Kitchen Equipment
1(a)(xix) Real Estate
1(b) Players Club Liability
2(b) Allocation of Purchase Price
3(k) Litigation and Proceedings (Seller and Shareholders)
3(l) Indebtedness
3(m) Employee Relations
3(n) Employee Plans
3(o) OSHA
3(t) Hazardous Substances
3(u) Insurance Policies
4(d) Litigation and Proceedings (Purchaser)
5(e) Officers and Property Managers of Seller
EXHIBITS DESCRIPTION
- -------- -----------
"A" Assignment and Assumption of Operating Agreements
"B" Assignment and Assumption of CCGA Lease
"C" Assignment and Assumption of CCGA Gaming Agreement
"D" Bill of Sale
"E" Employment Agreements
35
TABLE I
SHAREHOLDERS
No. of Shares of Common Stock,
Name and Address No Par Value, Owned of
of Shareholder MISSISSIPPI BELLE II, INC.
- -------------- -------------------------
Kenneth J. Bonnet 312.50
11 Rose Lane
Clinton, Iowa 61252
Christina M. Kehl 1,187.50
5130 Dunn Road
East Dubuque, Illinois 61025
Daniel J. Kehl 1,187.50
3 Blackhawk Heights
Fort Madison, Iowa 52627
Kevin A. Kehl 1,187.50
3701 Valley Oaks Drive
Clinton, Iowa 52732
Robert A. Kehl 1,187.50
1622 Pershing Road
Clinton, Iowa 52732
Cynthia A. Winter 1,187.50
618 34th Avenue, North
Clinton, Iowa 52732
36
SCHEDULE 5(E)
OFFICERS AND PROPERTY MANAGERS OF SELLER
Name Duration Compensation/Benefits
- ---- -------- ---------------------
Patrick J. Anglin 5 Years As shown in Exhibit "E"
Kenneth J. Bonnet 5 Years
Christina M. Kehl 5 Years As shown in Exhibit "E"
Robert A. Kehl 5 Years As shown in Exhibit "E"
Ricky D. Winter 5 Years As shown in Exhibit "E"
37
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the ____ day
of __________, 1996 between CROWN-MISSISSIPPI BELLE II, INC., an Iowa
corporation (the "Company") and ___________________________ (the "Employee").
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Asset Purchase
Agreement dated as of June ___, 1996 (the "Purchase Agreement"') by and
between the Company, Mississippi Belle II, Inc., ("MBII"), and the shareholders
of MBII, the Company has acquired substantially all of the assets of MBII; and
WHEREAS, until the Closing Date (as defined in the Purchase
Agreement), the Employee has been an employee of MBII; and
WHEREAS, the Company desires to employ the Employee, and the Employee
desires to provide such services upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Employment. The Company hereby employs the Employee as an
employee of the Company and the Employee hereby accepts such employment.
During the term of employment under this Agreement (the "Employment Term"), the
Employee shall perform such duties as shall be reasonably required of an
employee of the Company, and shall serve in the capacity of a Property Manager
for the Company. The Employee's duties will not be substantially changed from
present without the Employee's consent. The Employee, the President or General
Manager, and the other Property Managers employed by the Company shall serve on
an Executive Management Committee, which will make, by majority vote, decisions
relating to the day-to-day operation of the Company's gaming operation in
Clinton, Iowa; provided, however, it is understood that any and all decisions
of the Executive Management Committee are subject to approval of the Company.
2. Performance. The Employee agrees to devote his fulltime
efforts to the performance of his duties hereunder; provided, however, that the
Employee may engage in other business and personal investment activities not
involving the Company so long as they do not interfere with the performance of
his/her duties hereunder.
3. Term. Unless otherwise terminated in accordance with the
terms hereof, the Employment Term shall be for a term of ______ ( ) year(s)
commencing on the Closing Date; provided, however, that the Employee
38
shall have the option, at the Employee's sole discretion, to terminate this
Agreement every six (6) months by giving the Employer not less than thirty (30)
days written notice of such termination.
4. Compensation. The Employee shall be paid (i) $28.00 per hour
($42.00 per hour for each hour worked per week in excess of forty (40) hours
per week) (the "Hourly Pay") and (ii) a quarterly bonus of $2,500 per quarter
(the "Quarterly Bonus"). The Hourly Pay shall be paid at the same time other
employees of the Company are paid. The Quarterly Bonus shall be paid three (3)
months after the Closing Date and each three (3) months thereafter during the
term hereof. The Hourly Pay shall be adjusted upward on each anniversary of
the Closing Date by the greater of (i) the increase in the Consumer Price Index
for the previous twelve (12) month period, or (ii) five (5%) percent. The
Company will devise and provide an annual Officer/General Manager/Property
Manager bonus program based on profitability. Nothing contained herein shall
affect or in any way limit the Employee's rights as an employee of the Company
to participate in any Company profit sharing plan, medical and life insurance
programs or any other fringe benefits offered by the Company to its employees,
all of which shall be available to the Employee to the same extent as if this
Agreement had not existed, and compensation received by the Employee hereunder
shall be in addition to the foregoing.
5. Expense Account and Vacations. The Company agrees to
reimburse the Employee for all expenses reasonably incurred by him on behalf of
the Company in accordance with the prevailing practice and policy of the
Company. The Employee shall be entitled to three (3) weeks paid vacation per
year. In addition, the Employee shall be entitled to that number of days of
paid sick leave as is consistent with the prevailing practice and policy of
the Company for other employees in the same or similar position as that held by
the Employee hereunder.
6. Confidential Information. The Employee has had and will have
possession of or access to confidential information relating to the business of
the Company, including but not limited to writings, equipment, processes,
reports, manuals, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, arrangements with
suppliers and customers, computer programs or other material embodying trade
secrets, customer or product information or technical or business information
of the Company. All such confidential information, other than any information
which is in the public domain through no act or omission of the Employee or
which he is authorized to disclose, is referred to collectively as the "Company
Information". The Company and Employee agree that the identity and marketing
of non-local customers (except for those in
2
39
Company's Player's Club) and bus and motor coach companies and the like shall
not be confidential or proprietary information of the Company or included in
Company Information. The Employee agrees that, so long as he is employed by
the Company and for an indefinite period thereafter, he shall not (i) use or
exploit in any manner the Company Information for himself or any other person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company, and (iii) treat Company Information
otherwise than in a confidential manner.
7. Remedies. The Employee expressly agrees that the remedy at
law for any breach of Section 6 will be inadequate and that upon any such
breach or threatened breach, the Company shall be entitled as a matter of right
to injunctive relief in any court of competent jurisdiction, in equity or
otherwise, to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to
the Company or the inadequacy of a legal remedy. The rights conferred upon the
Company by the preceding sentence shall not be exclusive of, but shall be in
addition to, any other rights or remedies which the Company may have at law, in
equity or otherwise.
8. Termination Without Compensation.
(a) The Employment Term will terminate as of the end of the
Employment Term, unless terminated earlier in accordance with Sections 8, 9, 10
or 11 of this Agreement.
(b) The Employment Term may also be terminated by the Company with
written notice to the Employee upon the occurrence of any of the following:
(i) the commission by the Employee of any deliberate and
premeditated act involving moral turpitude
detrimental to the economic interests of the Company;
(ii) the conviction of the Employee of a felony;
(iii) the determination by the Iowa Racing and Gaming
Commission or other similar state body having
jurisdiction over the Company's affairs, that the
Employee is unsuitable to be an employee of the
Company;
(iv) the willful failure or refusal of the Employee to
perform his duties hereunder (which failure or
refusal persists after ten (10) business days written
notice from the Company to the Employee complaining
of such failure or refusal) or the Employee's gross
negligence of a material nature in connection with
the performance of such duties; or
(v) the breach by the Employee of any provision of this
Agreement which is not cured within thirty (30) days
subsequent to written notice from the Company to the
Employee of the breach.
3
40
(c) Upon termination of the Employment Term under Subsections (a)
or (b) above, the parties hereto will be relieved of any further obligations
hereunder except for any obligations set forth in Section 6.
9. Death of the Employee. If the Employee dies during the
Employment Term, (a) the Employment Term shall terminate and (b) the Company
will pay to the Employee's estate the Employee's Salary through the end of the
calendar month in which such death occurs.
10. Disability of the Employee. If the Employee becomes disabled
during the Employment Term, (a) the Company may terminate the Employee's
position hereunder, but this Agreement shall otherwise remain in full force and
effect, and (b) any amounts payable to the Employee under the Company's
disability insurance policy shall be deducted from the amounts payable to the
Employee hereunder. For the purposes of this Agreement, the Employee shall be
deemed to be disabled when he is deemed to be disabled under the Company's
disability insurance policy.
11. Governing Law. The terms of this Agreement shall be governed
by the laws of the State of Iowa.
12. Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement. The rights and obligations of the
Company hereunder may be assigned only by operation of law in connection with a
merger in which the Company is not the surviving corporation or in connection
with the sale of substantially all of the assets of the Company, and in the
latter event such assignment shall not relieve the Company of its obligations
hereunder.
13. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns.
14. Notices. All notices, demands and requests which may be given
or which are required to be given by either party to the other, and any
exercise of a right of termination provided by this Agreement, shall be in
writing and shall be deemed effective when either: (a) personally delivered to
the intended recipient; (b) sent by certified or registered mail, return
receipt requested, addressed to the intended recipient at the address specified
below; (c) delivered in person to the address set forth below for the party to
which the notice was given; (d) deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation,
Emery or Purolator, addressed to such party at the address specified below; or
(e) sent by facsimile, telegram or telex, provided that receipt for such
facsimile, telegram or telex is verified by the sender and followed by a notice
sent in accordance with one of the other provisions set forth above. Notices
shall be effective on the date of delivery or receipt, of, if
4
41
delivery is not accepted, on the earlier of the date that delivery is refused
or three (3) days after the date the notice is mailed. For purposes of this
paragraph, the addresses of the parties for all notices are as follows (unless
changes by similar notice in writing are given by the particular person whose
address is to be changed):
If to the Employee, to ______________________________________
_______________________________________;
If to the Company, to CROWN-MISSISSIPPI BELLE II, INC., 4040
North MacArthur Boulevard, Suite 100, Irving, Texas 75038; Attention:
Mark D. Slusser, Chief Financial Officer; Fax 214-719-4466;
With a copy to T. J. Falgout, III, General Counsel, Crown
Casino Corporation, 4040 North MacArthur Boulevard, Suite 100, Irving,
Texas 75038; Fax 214-719-4466.
Any party hereto may designate a different address by written notice given to
the other parties.
15. Entire Agreement; Modification. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof and may not be modified or amended in any way except in writing by the
parties hereto.
16. Duration. Notwithstanding the termination of the Employment
Term and of the Employee's employment by the Company, this Agreement shall
continue to bind the parties for so long as any obligations remain under this
Agreement, and in particular, the Employee shall continue to be bound by the
terms of Section 6.
17. Waiver. No waiver by the Company of any breach by the
Employee of this Agreement shall be construed to be a waiver as to succeeding
breaches.
18. Enforceability. In the event any portion or portions of this
Agreement are declared to be void for illegality, then the remaining portions
of the Agreement shall remain and shall be valid and binding.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
20. Condition of Effectiveness. This Agreement shall become
effective if and only if the Company consummates the transactions contemplated
by the Purchase Agreement.
21. Related Covenant Not To Compete. The Employee is a party to
the Purchase Agreement in which the Employee agreed to a covenant not to
compete as set forth in Section 13 thereof. The Company and the Employee
acknowledge and agree that performance of this Agreement by the Company is
additional consideration for such covenant not to compete and a breach of this
Agreement by the Company shall render such covenant not to compete null, void
and of no further force or effect.
5
42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
or as of the date and year first above written.
COMPANY:
--------
CROWN-MISSISSIPPI BELLE II, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EMPLOYEE:
---------
--------------------------------------
Name:
-------------------------------
6
43
NOTE: The Employment Agreements between the Company and Patrick J. Anglin
("Anglin") and between the Company and Christina M. Kehl ("Kehl")
will contain the following, additional provisions:
1. Anglin and Kehl shall be allowed the private use of the
apartment on the property for living quarters, as presently
provided;
2. Subject to Paragraph 4 below, Anglin and Kehl shall be
scheduled to work the same hours;
3. The Company, at its option, shall either reimburse Anglin or
Kehl for gasoline and oil used in a personal vehicle for
travel to and from home to work, or provide to Anglin or Kehl
a company vehicle for such travel;
4. Anglin will be regularly scheduled to work between 40 and 45
hours per week. Kehl will be regularly scheduled to work
between 35 and 45 hours per week;
5. If the effective date of the Employment Agreements is prior to
the event, Anglin and Kehl will attend a certain gaming show
in Las Vegas, Nevada at Company expense; and
6. Anglin and Kehl will be allowed to bring their dog (Sasha) to
work.
7. Anglin's Employment Agreement will contain a covenant not to
compete in substantially the same form as found in Section 13
of the Purchase Agreement, which negative covenant shall
commence on the date of execution of the Employment Agreement.
The Employment Agreement between the Company and Rickie D. Winter will
contain the following additional provision:
1. Winter's Employment Agreement will contain a covenant not to
compete in substantially the same form as found in Section 13
of the Purchase Agreement, which negative covenant shall
commence on the date of execution of the Employment Agreement.
44
GUARANTEE AGREEMENT
This Guarantee Agreement ("Guarantee Agreement") is made effective
this 11th day of June, 1996, by and between Mississippi Belle II, Inc. ("MBII")
and Crown Casino Corporation ("Guarantor").
WITNESSETH:
WHEREAS, MBII has agreed to sell a vessel known as the M/V Mississippi
Belle II, associated personal property and equipment, and other assets for
$40,000,000.00 to Crown-Mississippi Belle II, Inc., an Iowa corporation,
("Purchaser") in accordance with an Asset Purchase Agreement executed by MBII
as Seller and Crown-Mississippi Belle II, Inc. as Purchaser on or as of the
11th day of June, 1996, (hereafter called the "Agreement"); and
WHEREAS, the agreement of MBII to sell the vessel, personal property,
equipment, and other assets to Purchaser as set forth above is conditioned
upon, and subject to the execution, validity and enforceability of this
Guarantee Agreement; and
WHEREAS, Guarantor is the sole stockholder of Purchaser.
THEREFORE, in consideration of, and as an inducement to MBII to enter
the Agreement and sell the aforesaid assets to Purchaser, Guarantor hereby
agrees to and with MBII as follows:
1. Extent of Guarantee
Guarantor absolutely and unconditionally guarantees full and prompt
performance, payment and discharge of any liabilities, claims, obligations,
indebtedness, expenses, or costs of whatever kind or nature, now or hereafter
due and owing from Purchaser, its successors or assigns, arising from, or in
connection with the Agreement and the performance by the Purchaser of all of
the terms and conditions of the Agreement required to be performed by the
Purchaser as contemplated by the Agreement (all of the foregoing obligations of
Purchaser under the Agreement being hereafter referred to as the "Guaranteed
Obligations").
2. Waiver
Guarantor hereby waives presentment for payment, demand for payment,
protest, notice of protest, or notice of dishonor in connection with the
Guaranteed Obligations now or hereafter to become due and owing from or to be
performed by Purchaser; agrees that no act or thing, except full payment of or
performance of the Guaranteed Obligations, which but for this provision could
or might in law or in equity act as a release of the liability of Guarantor
hereunder, shall in any way alter or impair the obligations of this Guarantee
Agreement.
3. Payment of Guaranteed Obligations
Upon the non-payment or non-performance by Purchaser of any of the
Guaranteed Obligations when due, or at any time thereafter, an amount equal to
the outstanding balance of the Guaranteed Obligations, shall, at MBII's sole
option, become immediately due and payable by Guarantor upon ten (10) days
written notice to Guarantor.
4. Impairment
The liability of Guarantor hereunder shall in no way be affected,
impaired or reduced by the sale, pledge, surrender, release, extension,
indulgence, alteration, substitution, exchange, modification (other than any
settlement or compromise with Purchaser the effect of which is to extinguish
all or part of the Guaranteed Obligations) or other disposition of the
Guaranteed Obligations, any evidence thereof, or any security or any collateral
therefor, or by any failure, neglect or omission to realize upon or enforce the
Guaranteed Obligations, or any collateral or security therefor, or to exercise
or foreclose any lien upon or right of appropriation of any moneys, credits, or
property toward the liquidation or satisfaction of the Guaranteed Obligations,
or by any application of payment or credits thereon.
45
5. Term of Guarantee
This Guarantee Agreement shall remain in force until the satisfaction
of all of the Guaranteed Obligations as contemplated by the Agreement.
Thereafter, this Guarantee Agreement shall be of no further force or effect.
6. Right to Proceed Directly Against Guarantor, Additional Waivers
This is a guarantee of payment and not merely of collection.
Guarantor hereby waives any right (a) to require that any action be brought
against the Purchaser or any other person or entity, (b) to require that MBII
pursue any other remedy within its power, (c) to require that resort be had to
any security or collateral held by MBII with respect to the Guaranteed
Obligations, or (d) to require the property of Purchaser or any other person or
entity first be applied to the discharge of the Guaranteed Obligations, prior
to the exercise of any right that MBII may have by virtue of this Guarantee
Agreement. Guarantor waives, to the fullest extent permitted by law, any
rights and benefits, at law, in equity or pursuant to statutory enactment,
purporting to reduce the Guarantor's obligations in proportion to the
Guaranteed Obligations. In addition, Guarantor hereby waives, to the fullest
extent permitted by law, any defense arising as a result of MBII's election, in
any proceeding instituted under the Bankruptcy Code by or against Purchaser, to
apply Section llll(b)(ii) of the United States Bankruptcy Code. Guarantor
further waives any right to require marshaling of liens or collateral. Until
the entirety of the Guaranteed Obligations have been satisfied in full,
including such part thereof, if any, as may exceed the liability of Guarantor
hereunder, Guarantor shall have no right of subrogation to and waive any right
to enforce any remedy which MBII now has or may hereafter have against
Purchaser, and Guarantor waives any benefit of, and any right to participate
in, any security now or hereafter held by MBII with respect to the Guaranteed
Obligations.
7. Notices
All notices given hereunder shall be in writing, sent by certified or
registered mail, postage prepaid, at:
If to MBII:
Mississippi Belle II, Inc.
311 Riverview Drive
Clinton, Iowa 52733-1234
ATTN: Kenneth J. Bonnet
With a copy to:
Stephen J. Juergens, Esq.
200 Security Building
Dubuque, Iowa 52001
If to Purchaser:
Crown-Mississippi Belle II, Inc.
4040 North MacArthur Boulevard, Suite 100
Irving, Texas 75038
ATTN: Mark D. Slusser
With a copy to:
T. J. Falgout, III
General Counsel
Crown Casino Corporation
4040 North MacArthur Boulevard, Suite 100
Irving, Texas 75038
2
46
If to Guarantor:
Crown-Mississippi Belle II, Inc.
4040 North MacArthur Boulevard, Suite 100
Irving, Texas 75038
ATTN: Mark D. Slusser
With a copy to:
T. J. Falgout, III
General Counsel
Crown Casino Corporation
4040 North MacArthur Boulevard, Suite 100
Irving, Texas 75038
or at such other place as the parties may from time to time designate.
Personal service shall be deemed to be effective substitute for such mailing.
8. Effect on Successors
The obligations and rights set forth in this Guarantee Agreement shall
be binding upon Guarantor and upon its successors and assigns, and shall inure
to the benefit of MBII, its successors and assigns.
9. Counterparts
This Guarantee Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. Captions
The captions of the paragraphs of this Guarantee Agreement are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation.
11. Governing Law
The laws of the State of Iowa shall govern the rights, duties and
remedies of the parties to this Guarantee Agreement. Guarantor hereby consents
and submits to the personal jurisdiction of the Iowa District Court, Clinton
County, with respect to any legal proceedings arising out of or in connection
with this Guarantee Agreement.
12. Modification, Assignment
No amendment, modification or change in this Guarantee Agreement shall
be of any force or effect unless it has been executed by each of the parties
hereto. Guarantor shall not assign any of its obligations under this Agreement
without the prior express written consent of MBII which may be withheld in its
absolute and sole discretion.
13. Partial Invalidity
Should any one or more provisions of this Guarantee Agreement be
determined to be illegal or unenforceable, all other provisions shall
nevertheless remain in full force and effect.
3
47
14. Expenses of Enforcement
In addition to any other obligations assumed herein, Guarantor agrees
to pay all costs, expenses and reasonable attorney fees paid or incurred by
MBII in connection with the enforcement of this Guarantee Agreement.
15. Entire Agreement
The provisions of this Guarantee Agreement constitute the entire
agreement of the parties in regard to the subject matter hereof and supersede
all prior oral or written or contemporaneous oral agreements or understandings
between the parties in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
MISSISSIPPI BELLE II, INC. CROWN CASINO CORPORATION
By: By:
---------------------------- ------------------------------
KENNETH J. BONNET, EDWARD R. McMURPHY,
President President
By: By:
---------------------------- ------------------------------
CHRISTINA M. KEHL, MARK D. SLUSSER,
Secretary Secretary
4
48
STATE OF IOWA )
) ss:
DUBUQUE COUNTY )
On this 11th day of June, 1996, before me, the undersigned, a notary
public in and for the above county and state, personally appeared KENNETH J.
BONNET and CHRISTINA M. KEHL, to me personally known, who being by me duly
sworn, did say that they are the President and Secretary, respectively, of the
above corporation; that no seal has been procured by the corporation; that this
instrument was signed on behalf of the corporation by authority of its Board of
Directors and KENNETH J. BONNET and CHRISTINA M. KEHL, as such officers,
acknowledged the execution of this instrument to be the voluntary act and deed
of the corporation, by it and by them voluntarily executed.
------------------------------------------
Notary Public in and for the State of Iowa
STATE OF IOWA )
) ss:
DUBUQUE COUNTY )
On this 11th day of June, 1996, before me, the undersigned, a notary
public in and for the above county and state, personally appeared Edward R.
McMurphy and Mark D. Slusser, to me personally known, who being by me duly
sworn, did say that they are the President and Secretary, respectively, of the
above corporation; that no seal has been procured by the corporation; that this
instrument was signed on behalf of the corporation by authority of its Board of
Directors and Edward R. McMurphy and Mark D. Slusser, as such officers,
acknowledged the execution of this instrument to be the voluntary act and deed
of the corporation, by it and by them voluntarily executed.
------------------------------------------
Notary Public in and for the State of Iowa
5