**Exhibit 10.29**

 

**ASSET PURCHASE AGREEMENT**

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**BY AND AMONG**

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**MARKET STREET TRUCK PLAZA ACQUISITION CORP, L.L.C.,**

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**RICKPERNICI**

 

**AND**

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**GAMECO HOLDINGS, INC.**

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**DATED:  October 4,2006**

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# ** **

# **STATE OF LOUISIANA**

# ** **

**PARISH OFCADDO**

 

**ASSETPURCHASE AGREEMENT**

 

BE IT KNOWN, that before the undersigned NotariesPublic, and in the presence of the undersigned competent witnesses, personallycame and appeared:

 

**MARKET STREET TRUCK PLAZA ACQUISITION CORP, LLC,**a Delaware limited liability company (“MarketStreet”), domiciled and having its principal place of business in theParish of Caddo and whose mailing address is declared to be 1324 N. Market,Shreveport, Louisiana 71101, herein represented by its duly authorized agentRick Pernici;

 

**RICK PERNICI**, a Louisianaresident, whose mailing address is declared to be 6910 Gilbert, Shreveport,Louisiana 71106 (“Operating Member”);

 

 (Market Streetand the Operating Member shall collectively be referred to herein as “Sellers”and each individually as a “Seller”);

 

and

 

**GAMECO HOLDINGS, INC**, a Delawarecorporation (the “Purchaser”), domiciled and having a place of business in theParish of Lafayette, State of Louisiana and whose mailing address is declaredto be 718 S. Buchanan Street, Suite C, Lafayette, Louisiana 70507, hereinrepresented by its duly authorized agent Jeffrey P. Jacobs,

 

each of whom did execute this Asset Purchase Agreement(“Agreement”), to be effective as of this 4th day of October, 2006 (the “AgreementDate”).

 

**INTRODUCTION**

 

A.            Sellersown the assets of a truck stop located at 1324 N. Market, Shreveport, Louisiana71101 (the “Truck Stop”).

 

B.            TheTruck Stop, *inter alia*, is currently underconstruction and when completed will provide retail motor and diesel fuels,convenience store and restaurant operations for sale to or use by the generalpublic as well as the necessary location and other necessary physicalrequirements for the operation of video draw poker devices for play by thegeneral public.

 

C.            Buyer,for itself and its designees, desires to purchase and Sellers desire to sellthe Truck Stop.

 

NOW, THEREFORE, in consideration of the promises,obligations, representations and warranties contained herein, the receipt andsufficiency of which are hereby acknowledged, and upon the terms and subject tothe conditions hereinafter set forth, the parties agree as follows:

 

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Section 1.                                            Definitionsand Related Matters.

 

1.1           Definitions.  For the purposes of this Agreement, the followingterms have the meanings set forth below (such meanings to be applicable to boththe singular and plural forms of the terms defined):

 

“Acquired Assets” shall mean all assets,accounts receivable, privileges, rights, real and personal property, IntellectualProperty Rights, licenses, interests and claims (whether personal, tangible orintangible) of every type and description owned by Sellers (subject only to theleases identified on Schedule 6.9(a) and the PermittedEncumbrances) and used in the operation of the Business, other than theExcluded Assets.  Acquired Assets,include, but are not limited to, each of the following:

 

(a)          leasehold title arising pursuant tothe Property Lease (subject to Permitted Encumbrances hereinafter defined) inand to certain improved real property located at 1324 N. Market, Shreveport,Louisiana 71101 (the “Real Property”), consisting of approximately 5.1 acres,more or less, and all improvements, buildings, structures, issues, profits andrents, fixtures and all rights pursuant to any leases, recorded or unrecorded,respecting all or any part of the Real Property; together with, to the extentlegally transferable, all approvals, authorizations, consents, licenses,permits, privileges, rights, variances and waivers relating to the RealProperty from any Governmental Body having jurisdiction over the Real Property,if any, including, but not by way of limitation, those with respect tobuilding, effluent control, environmental protection, fire, foundation,pollution control, use, utilities and zoning heretofore held by or granted toSellers; together with any and all easements, rights and privileges appurtenantthereto, including all right, title and interest of the Sellers in and to anyland lying in the bed of any street, road or avenue currently adjoining, lyingacross or adjacent to or to be opened or proposed in front of or adjoining theReal Property, and all riparian rights; all of the foregoing being collectivelyreferred to as the Premises (the “Premises”) and being further described in Exhibit A;

 

(b)          the Sublessor’s interest in and underthe Restaurant Sublease;

 

(c)          those items of machinery, equipment,chattels and fixtures used in or supporting the Business, as identified on Schedule1.1(b);

 

(d)          all inventories of any kind related toor purchased for the operation of the Business, including, but not limited to,those items identified on Schedule 1.1(c);

 

(e)          all Intellectual Property Rights,subject to the qualifications in Section 6.10, used in or for thebenefit of the Business, excluding only those owned by the sublessee under theRestaurant Sublease;

 

(f)           accurate, certified copies of allbooks and records relating to the Business in the possession or under thecontrol of the Sellers, including, without limitation: (i) lists of allknown potential or past customers and suppliers; (ii) records with respectto all equipment, including warranties and service agreements, inventory andmachinery; (iii) any and all business plans and/or models; (iv) allfinancial records and reports; (v) all employee records; and (vi) allother books and records used by Sellers in the operation of the Business;

 

(g)          all approvals, authorizations,consents, licenses, permits, registrations, certificates, privileges, rights,variances and waivers relating to or necessary for the operation of theBusiness from any Governmental Body having jurisdiction over the Business, tothe extent the same are transferable;

 

(h)          all fixtures and improvements locatedon the Premises, other than those owned by the sublessee under the RestaurantSublease and subject to the rights of the Landlord under the Property Lease;

 

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(i)           all goodwill of the Business, subjectto the rights of the sublessee under the Restaurant Sublease; and

 

(j)           those Contracts identified on Schedule6.9(b), under terms and conditions contained in Schedule 6.9(b).

 

 “Affiliate”of any particular Person means any other Person directly or indirectlycontrolling, controlled by or under common control with such particularPerson.  The term “control” meansthe possession, directly or indirectly, of the power to direct the managementand policies of a Person whether through the ownership of securities, bycontract or otherwise.

 

“Annualized EBITDA”shall mean the sum of all of the monthly EBITDA (as defined below) arising fromor related to the operation of the Business and earned by the Purchaser (notincluding the EBITDA earned by any third party under a lease), calculated forthe last full twelve (12) calendar months of that period from the first fullcalendar month following the date upon which Devices are legally operating atthe Premises through the end of the eighteenth (18) full calendar monthfollowing the Closing Date (i.e. months 7 through 18, inclusive), after makingappropriate adjustments for any non-recurring transactions and incorporatingthe expenses limitations set forth in the Proforma Income Statement as definedbelow.

 

“Assumed Contracts” shall mean the contractsspecifically identified in Schedule 6.9(b).

 

“Business” shall mean all of the operations andbusiness of the Truck Stop located at 1324 N. Market, Shreveport, Louisiana71101, including, but not limited to, its gaming operations (if any),convenience store, restaurant facility and its motor and diesel fuel sales.

 

“Business Day” means any day other than aSaturday, Sunday or public holiday under the laws of the State of Louisiana orany other day on which banking institutions are obligated to close inShreveport, Louisiana.

 

“Capital Expenditures” means all expendituresfor any capital or fixed assets or improvements, or for replacements,substitutions or additions thereto, which have a useful life of more than one (1) year(including expenditures with respect to Capitalized Lease Obligations butexcluding expenditures which are fully expensed in the period incurred inaccordance with GAAP consistently applied).

 

“Capitalized Lease” means a lease under whichthe obligations of the lessee should, in accordance with GAAP consistentlyapplied, be included in determining total liabilities as shown on the liabilityside of a balance sheet of the lessee.

 

“Capitalized Lease Obligations” means theamount of the liability reflecting the aggregate discounted amount of futurepayments under all Capitalized Leases calculated in accordance with GAAPconsistently applied and Statement of Financial Accounting Standards No. 13.

 

 “Closing”has the meaning set forth in Section 2.2.

 

“Closing Certificate” has the meaning set forthin Section 7.1(c).

 

“Closing Date” has the meaning set forth in Section 2.2.

 

“Closing Reports” shall mean: (i) that certain contract, dated May 8,2006, by and between Market Street and John Philip Sipes for the constructionof the Truck Stop, together with all amendments, 

 

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modifications or changes thereto; (ii) any change orders related tothe foregoing; (iii) all payment applications, evidence of payments andany other records, instruments or agreements related to the construction of theTruck Stop; and (iv) the financial reports of the Business, excluding anyportion that shall be leased to a third-party unless any Seller has suchinformation in their possession or control, setting forth the income, expenses,assets, liabilities and cashflow of the Business monthly, from its opening tothe general public during the calendar year of 2006 through the Closing Date.

 

“Code” means the Internal Revenue Code of 1986,as amended, and any reference to any particular Code section shall beinterpreted to include any revision of or successor to that section regardlessof how numbered or classified.

 

“Completed” shall mean, as related to the TruckStop, that each of the following have been completed:  (i) the construction of the Truck Stophas been completed pursuant to the Plans and Specifications, to the Purchaser’sreasonable satisfaction, and in compliance with any and all building,construction or zoning laws, rules or regulations of any GovernmentalBody, including, but not limited to, the Liquor and Gaming Laws of the State ofLouisiana; (ii) an occupancy certificate or its equivalent has been issuedby the applicable Governmental Body(ies) for the unconditional occupation ofthe Truck Stop;  (iii) lien waiversand reasonable proof of payment has been received from the general contractorfor the construction of the Truck Stop and from any and all other contractors,sub-contractors, suppliers, material-men or laborers providing labor, materialsor services for the same; and (iv) the Truck Stop, as of the Closing Date,has all necessary improvements as required for the placement and operation offifty (50) Devices.

 

“Contract” has the meaning set forth in Section 6.9(a).

 

“Deposit” shall mean the sum of One HundredFifty Thousand and no/100 Dollars ($150,000.00).

 

“Devices” shall mean “Video Draw Poker Devices”as defined in the Video Draw Poker Devices Control Law, Louisiana RevisedStatutes, Title 27:301 *et seq*.,as amended from time to time.

 

“Earn-Out Payment” shall be the sum that equals 5.0 times AnnualizedEBITDA less the Minimum Purchase Price; *provided,however,* in no event shall the total Earn-Out Payment hereunderexceed One Million Five Hundred Thousand and no/100 Dollars ($1,500,000.00).

 

“EBITDA” shall mean for any one (1) calendar month periodthe sum of: (i) net income, plus (ii) interest expenses, plus (iii) theaggregate amount of federal, state and local taxes on or measured by income(whether or not payable during that period), and plus (iv) depreciationand amortization, all as shall be computed by the Purchaser’s accountants whichcomputation shall be made strictly in accordance with GAAP, consistentlyapplied, and verified by an accountant chosen by the Sellers.  Notwithstanding the past practices of the Sellers,when calculating EBITDA hereunder, the parties agree to use the accrual methodof accounting, including, but not limited to, accruing for all licenses,permits, any gaming licenses and occupational fees, insurance costs, vacationbenefits, payments due under the Property Lease and real property taxes if paidby the lessee under the Property Lease; *provided further, however,*that all monthly expenses used to calculate EBITDA will be based upon theProforma Income Statement.  Those lineitems identified with an “*” on the Proforma Income Statement shall be includedin the calculations of EBITDA in whatever amounts equal the actual expense foreach such line item during any given calendar month.   With regard to all other expense items asidentified on the Proforma Income Statement, if the actual amount of any suchexpense shall exceed the amount for that line item identified on the ProformaIncome Statement, any increase must first be approved by both the Purchaser andthe Sellers, and if not approved by the Sellers in their sole and absolutediscretion, such expense amount when calculating EBITDA hereunder shall notexceed the amount on an annual basis as set forth in the Proforma Income 

 

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Statement, regardless of theactual amount of such expenses; *provided, however,*Purchaser shall have no obligation to spend any amounts within each suchexpense category beyond the amount listed on the Proforma Income Statementregardless of the impact upon EBITDA.

 

“Environmental and Safety Requirements” meansall federal, state, parish and local statutes, regulations, rules, ordinancesand similar provisions having the force or effect of law, all licenses,permits, authorizations, approvals, covenants or criteria having the force oreffect of law, all guidelines having the force or effect of law, all judicialand administrative orders and determinations, all contractual obligations andall common law and equitable doctrines (including, without limitation,injunctive relief and tort doctrines such as negligence, nuisance, trespass andstrict liability), in each case concerning public health and safety, workerhealth and safety and pollution or protection of the environment (including,without limitation, all those relating to the presence, use, production,generation, handling, transportation, treatment, storage, disposal,distribution, labeling, testing, processing, discharge, release, threatenedrelease, control or cleanup of any hazardous or otherwise regulated materials,substances or wastes, chemical substances or mixtures, pesticides, pollutants,contaminants, toxic chemicals, petroleum products or byproducts, asbestos,polychlorinated biphenyls, noise or radiation), each as amended and as now orhereafter in effect, including, by way of illustration and not limitation, theOccupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, *et seq.*, the Comprehensive Environmental Response,Compensation and Liability Act of 1980, 42 U.S.C. §§9601, *et seq.*,the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901, *et seq.*, the Clean Air Act, 42 U.S.C. §§ 7401, *et seq.*, the Solid Waste Disposal Act, 42 U.S.C. §§ 6901, *et seq.*, the Clean Water Act, 33 U.S.C. §§1251, *et seq.*, and the Toxic Substances Control Act, 15 U.S.C. §§2601, *et seq.*, and any similar orcorresponding state, local, municipal and/or parish ordinance, rule,regulation, law or act, (or any successor legislation thereto).

 

“ERISA” shall mean the Employee RetirementIncome Security Act of 1974 (or any successor legislation thereto), as amendedfrom time to time and any regulations promulgated thereunder.

 

“Escrow Agent” shall mean United Title ofLouisiana having an address at 6452 Youree Drive, Shreveport, Louisiana 71105..

 

“Escrow Hold Back” shall equal Fifty Thousandand no/100 Dollars ($50,000.00).

 

“Excluded Assets” shall mean the following:

 

(a)                                  Allrestaurant equipment, inventory, furniture, fixtures and other items ofpersonal property owned by the sublessee under the Restaurant Sublease;

 

(b)                                 Theoriginal copies of all books and records of the Sellers and related to theTruck Stop;

 

(c)                                  Rightsof the Sellers pursuant to or under this Agreement;

 

(d)                                 Anyfederal, state or local tax refunds or tax credits of the Sellers;

 

(e)                                  Anyleases, not necessary to or used in the operation of the Business, by Sellersof any personal property other than the Assumed Contracts;

 

(f)                                    Allnotes, bonds, guarantees or other evidence of indebtedness of any Person heldby the Sellers;

 

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(g)                                 Allcash, cash equivalents, investments and all deposits of the Sellers, exceptingthere from, all cash, cash equivalents, investments and all deposits arisingfrom or related to the Business on or after the Closing Date which shall be theproperty of the Purchaser;

 

(h)                                 Anyand all insurance policies of the Sellers or any of their Affiliates and allrights to any refunds in connection therewith; *provided,however,* the Purchaser shall have no responsibility for any loss ofprepaid premiums or other costs, expenses or charges arising from or associatedwith the foregoing; and

 

(i)                                     Allrights, claims and causes of action relating to any of the property included inthe preceding description of Excluded Assets.

 

“GAAP” means United States generally acceptedaccounting principles as promulgated by the Financial Accounting StandardsBoard, as in effect from time to time.

 

“Governmental Body” means any federal, state,parish, municipal or other governmental or quasi-governmental agency, department,board, commission, bureau or other like entity or instrumentality.

 

“Indebtedness” means any indebtedness in anyform, nature or type whatsoever, including but not limited to: (i) anyindebtedness for borrowed money or issued in substitution for or exchange ofindebtedness for borrowed money; (ii) any indebtedness evidenced by anynote, bond, debenture or other debt instrument; (iii) any indebtedness forthe deferred purchase price of property or services with respect to which aPerson is liable, contingently or otherwise, as obligor or otherwise; (iv) anycommitment by which a Person assures a creditor against loss (including,without limitation, contingent reimbursement obligations with respect toletters of credit); (v) any obligations for which a Person is obligatedpursuant to a guarantee; (vi) any obligations under Capitalized Leaseswith respect to which a Person is liable, contingently or otherwise, asobligor, guarantor or otherwise, or with respect to which obligations a Personassures a creditor against loss; (vii) any indebtedness secured by a Lienon a Person’s assets; and (viii) net obligations under hedgingarrangements (including, without limitation, derivatives) designed to protect aPerson against fluctuations in interest rates, currency exchange rates,commodity prices or other financial transactions.

 

“Intellectual Property Rights” means all (i) patents,patent applications, patent disclosures and inventions, (ii) trademarks,service marks, trade dress, trade names, logos and business names andregistrations and applications for registration thereof, together with all ofthe goodwill associated therewith, (iii) copyrights (registered orunregistered) and copyrightable works and registrations and applications forregistration thereof, (iv) mask works and registrations and applicationsfor registration thereof, (v) computer software, data, databases anddocumentation thereof, (vi) trade secrets and other confidentialinformation (including, without limitation, ideas, formulas, compositions,inventions (whether patentable or unpatentable and whether or not reduced topractice), know-how, manufacturing and production processes and techniques,research and development information, drawings, specifications, designs, plans,proposals, technical data, copyrightable works, financial and marketing plansand customer and supplier lists and other information), (vii) otherintellectual property rights and (viii) copies and tangible embodimentsthereof (in whatever form or medium).

 

“Investment” as applied to any Person means (i) anydirect or indirect ownership, purchase or other acquisition by such Person ofany notes, obligations, instruments, stock, securities or ownership interests(including partnership interests, membership interests and joint ventureinterests) of any other Person and (ii) any capital contribution by suchPerson to any other Person.

 

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“Knowledge” or any derivation thereof whetheror not capitalized, shall mean, knowledge of a condition or set of facts as hasbeen obtained from any source, including, regardless of any common law orstatutory definition of the foregoing, information which would cause areasonable person to inquire further.

 

“Lien” means any mortgage, deed of trust, pledge,security interest, encumbrance, lien, claims, charge or other restriction ofany kind whatsoever (including any conditional sale or other title retentionagreement or lease in the nature thereof), any sale of receivables withrecourse against the Business, any filing of or agreement to file a financingstatement as debtor under the Uniform Commercial Code or any similar statuteother than to reflect ownership by a third party of property leased to theSellers for use in the Business under a lease which is not in the nature of aconditional sale or title retention agreement.

 

“Liquor and Gaming Laws of the State of Louisiana”shall mean the laws promulgated in the Louisiana Revised Statutes Title 27:1 *et seq*., and Title 26:1 *et seq*., as amended from time to time andthe Louisiana Administrative Code provisions interpreting the same.

 

“Material Adverse Effect” or “MaterialAdverse Change” means any matter or matters which would, alone or in theaggregate, have an adverse effect on  (i) thefinancial condition, operating results, assets, liabilities, operations,condition (financial or otherwise), business or prospects of the Sellers, theBusiness or any Affiliate of the Sellers, (ii) the ability of the Sellersor the Business to perform any of their obligations related to the operationsof the Business (each, a “Material Adverse Effect”), or (iii) the abilityof the Premises to qualify as a truck stop facility under the Liquor and GamingLaws of the State of Louisiana capable of placing and operating not less than50 Devices.  Material Adverse Effect orMaterial Adverse Change specifically includes, but is not limited to: (a) anyviolation by the Sellers or the Business, in any form and for any reason, ofthe Liquor and Gaming Laws of the State of Louisiana; or (ii) therevocation or suspension, for any period of time, of any liquor or gaminglicense issued by the State of Louisiana to the Sellers or the Business andused in the operations of the Business, or (iii) the ability of thePremises to qualify as a truck stop facility under the Liquor and Gaming Lawsof the State of Louisiana.

 

“Minimum Purchase Price”shall be the sum of Four Million and no/100 Dollars ($4,000,000.00).

 

“Plans and Specifications” shall mean thoseplans and specifications for the construction and furnishing of the Truck Stopas attached hereto as Exhibit B.

 

“PermittedEncumbrances” means:

 

(a)           real estate and *ad valorem*taxesnot yet due and payable;

 

(b)           interests or title of a lessor orlessee under any lease identified in Schedule 6.9(b); and

 

(c)           to the extent existing on the ClosingDate hereof, matters which are described on Schedule 1.1(Permitted Encumbrances), and approved of inwriting by the Purchaser prior to the Closing.

 

“Person” means an individual, a partnership, acorporation, a limited liability company, an association, a joint stockcompany, a trust, a joint venture, an unincorporated organization, agovernmental entity or any department, agency or political subdivision thereofand any other entity.

 

“Proforma Income Statement:” shall mean theproforma income statement attached hereto as Exhibit C.

 

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“Property Lease” shall mean that certain LeaseAgreement, dated July 15, 2004, between Earnest Properties, LLC, as Lessor,and Market Street Truck Plaza, LLC, as Lessee, as amended by those certainFirst and Second Addendums to the Lease Agreement, dated May 19, 2006 and August 7,2006, respectively, correct and complete copies of which are attached hereto asExhibit D.  Market Street TruckPlaza, LLC’s interest in the Property Lease Agreement was assigned to MarketStreet Truck Plaza Acquisition Corp., L.L.C., pursuant to that certain Amendedand Restated Memorandum of Understanding, effective as of December 20,2005, a correct and complete copy of which is also attached hereto as Exhibit D.

 

“Purchaser” means Gameco Holdings, Inc., aDelaware corporation, its successors, assigns and/or designees, in its solediscretion.

 

“Restaurant Sublease” shall mean that certainsublease agreement, dated January 30, 2006, by and between Market Street,as Sublessor, and D&M, L.L.C., dba Williams Fried Chicken, as Subleasee.

 

 “SettlementStatement” shall mean a statement, signed by the Sellers and the Purchaserand to be received by the Escrow Agent at least twenty-four (24) hours prior tothe Closing, identifying all funds to be received by the Escrow Agent as of theClosing and further identifying how and to whom all such funds are to be paidby the Escrow Agent, such that all Acquired Assets are transferred to thePurchaser free and clear of any and all Liens whatsoever, except PermittedEncumbrances.

 

“Survey” shall have the meaning given it in Section 3.4.

 

“Tax” or “Taxes” means any federal,state, county, parish, local, foreign or other income, gross receipts, advalorem, franchise, profits, sales or use, transfer, registration, excise,utility, gaming, environmental, communications, real or personal property,capital stock, membership interest, license, payroll, wage or other withholding,employment, social security, severance, stamp, occupation, alternative oradd-on minimum, estimated and other taxes or fees of any kind whatsoever(including deficiencies, penalties, additions to tax or fees, and interestattributable thereto) whether disputed or not.

 

“Tax Return” means any return, informationreport or filing with respect to Taxes, including any schedules attachedthereto and including any amendment thereof.

 

“Title Company” shall mean United Title ofLouisiana having an address at 6452 Youree Drive, Shreveport, Louisiana 71105.

 

“Title Evidence” shall mean the Title Policyand the Survey, as defined in Sections 3.3 and 3.4, respectively.

 

1.2           AccountingPrinciples.  The classification,character and amount of all assets, liabilities, capital accounts and reservesand of all items of income and expense to be determined, and any consolidationor other accounting computation to be made, and the interpretation of anydefinition containing any financial term, pursuant to this Agreement shall bedetermined and made in accordance with GAAP consistently applied.

 

1.3           OtherInterpretive Matters.  In thisAgreement, unless a clear contrary intention appears:  (a) the singular number includes theplural number and vice versa; (b) reference to any Person includes suchPerson’s successors and assigns but, if applicable, only if such successors andassigns are permitted by this Agreement and reference to a Person in aparticular capacity excludes such Person in any other capacity; (c) referenceto any gender includes each other gender; (d) reference to any agreement(including this Agreement and the Schedules and Exhibits hereto), document orinstrument means such 

 

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agreement, document or instrument as amended ormodified and in effect from time to time in accordance with the terms thereofand, if applicable, the terms hereof (and without giving effect to anyamendment or modification that would not be permitted in accordance with theterms hereof); (e) reference to any applicable law means such applicablelaw as amended, modified, codified or reenacted, in whole or in part, and ineffect from time to time, including rules and regulations promulgatedthereunder and reference to any particular provision of any applicable lawshall be interpreted to include any revision of or successor to that provisionregardless of how numbered or classified; (f) reference to any Article, Section orExhibit means such Article or Section hereof or such Exhibit hereto;(g) “hereunder,” “hereof,” “hereto” and words of similar import shall bedeemed references to this Agreement as a whole and not to any particular Section orother provision hereof; and (h) “including” (and with correlative meaning “include”)means including without limiting the generality of any description precedingsuch term.

 

Section 2.               Purchaseof Assets and Closing.

 

2.1           Purchaseand Sale of the Acquired Assets.

 

(a)           At the Closing, subject to the termsand conditions contained in this Agreement, the Sellers, as applicable, shallsell, assign, set-over, convey, deliver and transfer to the Purchaser, or itsdesignee, free and clear of any and all Liens and Indebtedness whatsoever,excepting only Permitted Encumbrances, and the Purchaser shall purchase fromthe Sellers, as applicable, all rights, title and interests in and to theAcquired Assets for the Minimum Purchase Price, and Purchaser shall pay to theSellers the Minimum Purchase Price, in immediately available funds, at theClosing subject to the Escrow Hold Back and any other prorations described inthis Agreement.

 

(b)           Within ten (10) Business Daysfollowing the execution of this Agreement by all parties hereto, the Purchasershall deliver the Deposit to the Escrow Agent. In every event, should the transaction contemplated by this Agreement beconsummated, the Deposit shall be applied as a credit toward the Purchase Priceby the Escrow Agent at the Closing.  Inthe event Purchaser shall terminate this Agreement for any reason prior to thatdate which is sixty-one (61) days after the Agreement Date (“Deposit ForfeitDate”), upon notice to the Escrow Agent and the Sellers of the Purchaser’selection to terminate this Agreement, the Escrow Agent shall promptly releasethe Deposit to the Purchaser in which event this Agreement shall thereafter benull and void and no party shall have any further liability or obligationhereunder.  Promptly following theDeposit Forfeit Date, and in no event later than 5 days following the same andprovided the Escrow Agent has not received a notice of termination from thePurchaser prior to the Deposit Forfeit Date, the Escrow Agent shall withoutfurther instruction release the Deposit to the Sellers.  In the event Purchaser shall terminate thisAgreement for any reason on or after the Deposit Forfeit Date, upon notice tothe Escrow Agent and the Sellers of the Purchaser’s election to terminate thisAgreement, this Agreement shall be null and void and no party shall have anyfurther liability or obligation hereunder and the Sellers shall retain theDeposit as full and final compensation for any and all damages they may haveincurred hereunder, and not as a penalty. Notwithstanding anything contained in this Agreement to the contrary, inno event shall the Purchaser have any liability for any damages to the Sellersin excess of the Deposit.

 

(c)           The Closing of the purchase and saleof the Acquired Assets shall take place at the offices of the Title Company orat such other place as may be mutually agreeable to the Sellers and thePurchaser.  At the Closing, upon paymentof the Minimum Purchase Price, the Sellers, as applicable, shall deliver to thePurchaser the Acquired Assets, together with such bills of sale, powers ofassignment, certificates, deed(s) and other documents and instruments ofconveyance as shall be reasonably satisfactory to the Purchaser and its counselto transfer record ownership of the Acquired Assets, including, but not limitedto, those items identified in Section 10 below.

 

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(d)           On that date that is not later thannineteen (19) full calendar months after Devices are legally operating at thePremises, the Purchaser shall pay to the Sellers, in immediately availablefunds, the Earn-Out Payment.

 

(e)           Sellers hereby instruct the Purchaserto pay the entire Minimum Purchase Price and the Earn-Out Payment to MarketStreet and each of the Sellers acknowledge that payment pursuant to theforegoing directive shall satisfy any and all of the Purchaser’s obligationsfor payment of the Minimum Purchase Price and the Earn Out Payment hereunder toeach of the Sellers.  Notwithstanding theforegoing, the parties agree that One Hundred Thousand and no/100 Dollars($100,000.00) of the Purchase Price, allocated equally between the Sellers isthe monetary consideration paid for the “obligation not to do” as contained in Section 11.21.  The parties acknowledge and agree that thisallocation is a reasonable allocation given the entities’ and their relativeabilities and experience in the gaming industry.  The parties each further acknowledge andagree that payment of the Minimum Purchase Price and the Earn Out Payment tothe Sellers as outlined on the Settlement Statement is appropriateconsideration and reasonably related to the value of the interests each partyis transferring under this Agreement.

 

2.2           Closing.   Subject to any extension under Section 2.5(b) below,the sale and transfer of the Acquired Assets from the Sellers, as applicable,to the Purchaser (“Closing”), pursuant to the terms and subject to theconditions hereof shall take place on January 12, 2007 (“Closing Date”).

 

2.3           Releaseof Sellers’ Interest and Claims against the Business and the Acquired Assets.  Sellers agree, concurrently with the Closing,to release all of their interests in and to and any claims against any of theBusiness or the Acquired Assets.  Sellersshall deliver to the Escrow Agent a fully executed assignment, terminationand/or modification agreement, to be effective as of and only upon the Closing,in form and substance reasonably acceptable to the Purchaser, terminating allinterests and  claims of the Sellers inthe Business to the Acquired Assets as of the Closing Date.  Nothing contained in the foregoing isintended to nor shall it operate to release any claims or causes of action theSellers’ or any one of them may have arising out of or under this Agreement.

 

2.4           Non-Assumption of Liabilities byPurchaser.

 

(a)           Except for the Assumed Obligations(as hereinafter defined), the Purchaser does not assume and shall not be liablefor any of the Indebtedness, debts, obligations, expenses, claims, liabilitiesor commitments, of any nature whatsoever (collectively “Obligations”) of theSellers, whether arising prior to, on or after the Closing, including, but notlimited to, Obligations arising from or related to the Acquired Assets and/orthe Business.  The Sellers agree,individually, that all Obligations, other than Obligations under the AssumedContracts that accrue after the transfer of the Acquired Assets (collectively,the “Assumed Obligations”), shall remain the obligations of the Sellers, asapplicable.  The Sellers, jointly andseverally, do hereby indemnify, defend and hold Purchaser harmless from andagainst any and all claims, losses, expenses, damages or liabilities assertedagainst or suffered by Purchaser arising out of or resulting from theObligations (other than the Assumed Obligations), and, provided the Closinghereunder is consummated by the Purchaser, the Purchaser does hereby indemnify,defend and hold the Sellers harmless from and against any and all claims,losses, expenses, damages or liabilities asserted against or suffered by theSellers arising out of or resulting from the Assumed Obligations and arising orrelated to the period after the Closing Date.

 

(b)           The parties acknowledge that as ofthe Agreement Date, the Truck Stop is under construction.  It is the intent and purpose of the partieshereunder that the Sellers: (i) shall fully Complete the Truck Stoppursuant to the Plans and Specifications; (ii) all mechanical systems andother improvements related to the Truck Stop shall be fully operating and ingood condition; and (iii) the 

 

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restaurant, convenience store and fueling operations (but not anygaming operations) of the Business shall be open to the general public prior tothe Closing hereunder.  Any and allcosts, fees or expenses arising from or related to the Sellers’ obligationsunder the foregoing, even if invoiced after the Closing Date, shall remain thesole obligation of the Sellers.  It isfurther acknowledged and agreed by the Purchaser that it has the soleobligation to obtain appropriate liquor and gaming licenses to sell liquor onthe Premises and permit the operation of the Devices on the Premises.  Purchaser’s failure to obtain any suchlicenses after the Closing Date, shall not invalidate this transaction or givethe Purchaser the right to seek reimbursement from the Sellers of the MinimumPurchase Price unless such failure is a result of a breach by the Sellers oftheir other obligations under this Agreement.

 

(c)           The Sellers do hereby indemnify,defend and shall hold harmless the Purchaser and the Title Company, and shallexecute such affidavits and instruments as shall be necessary to protect boththe Purchaser and the Title Company, from any material-men’s or mechanic’sliens that may be related to the foregoing construction and filed after theClosing.  Sellers shall secure anddeliver at the Closing lien releases, in form and substance acceptable to thePurchaser and the Title Company from the general contractor engaged toconstruct the Truck Stop and from any and all other contractors,sub-contractors or material-men and shall pay all sums due to the same or to anyother person arising from or related to the construction of the Truck Stop ator prior to the Closing. Sellers shall further deliver to the Purchaser atClosing an assignment of any enforcement rights under the construction contractagainst the general contractor such that the Purchaser may enforce suchcontract directly against the general contractor; *provided,however*, Sellers shall remain solely obligated to the generalcontractor for any performance under the same.

 

2.5           Release of Funds.

 

(a)           Upon completion of the transfers anddeliveries described in Sections 2.1, 2.2, 2.3 and 2.4 above and thedischarge of all Liens and Indebtedness, the Escrow Agent shall release,pursuant to the Settlement Statement, any and all funds then on deposithereunder.  Any fees charged by theEscrow Agent for its services hereunder shall be shared equally with thePurchaser responsible for one-half (1/2) of such costs and the Sellerresponsible for the remaining one-half (1/2).

 

(b)           Notwithstanding the foregoing, theparties agree that this Agreement and the Closing Date shall be subject to theissuance to or receipt by the Purchaser of the Consents (as defined on Schedule6.13 below) and the receipt by the Purchaser of the funds from anyfinancing source(s) being utilized by the Purchaser for the acquisitionscontemplated herein (collectively, the “Funds”).  If the Consents or any portion of the Fundshave not been received or issued as of the Closing Date, the Closing Date shallbe extended from day to day for no more than nineteen (19) days until the third(3rd) day following the date each such Consent and all Funds arereceived, satisfied or waived. Notwithstanding the foregoing, nothing contained in this paragraph shalldelay the Closing for more than nineteen (19) days.  After the expiration of such nineteen (19)day  period, any party may upon writtennotice terminate this Agreement, and thereafter this Agreement shall be nulland void and of no further force and effect and the Deposit shall be releasedpursuant to the terms and conditions of Section 2.1(b) above.

 

Section 3.               DueDiligence.  Beginning on theAgreement Date and continuing to and including the Closing Date (the “DueDiligence Period”), Purchaser shall have the right to perform the following duediligence pursuant to the terms and conditions hereof.

 

3.1           General Testing and Inspections.

 

(a)           During the Due Diligence Period,Purchaser shall (subject to the provisions of the Property Lease) have theright to conduct such engineering, environmental, general business and 

 

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feasibility studies, inspections, testing, audits and/or reviews of theAcquired Assets, the Premises and the Business and its assets, liabilities,operations (including operations and records), financial performance andaffairs as Purchaser deems necessary, including soil tests, borings, drainagetests and similar tests on any land or improvement owned by the Sellers andused in the Business, and audits and reviews of all of the Business’s financialand business records, operations, documents and instruments, including afinancial and tax audit of the Business held by or under the control of theSellers.  Such studies shall be conductedby Purchaser and its agents at the Purchaser’s sole cost and expense.

 

(b)           Subject to reasonable advance notice,the Sellers agree to allow Purchaser and/or its agents access to all assets,records, documents and instruments of the Business or the Acquired Assets toconduct such studies, tests, inspections, reviews and audits, provided suchaccess shall not unreasonably interfere with the activities of theSellers.  Purchaser shall save, defend,indemnify and hold the Sellers and the landlord under the Property Lease harmlessfrom and against all claims, lawsuits, judgments, losses, liabilities orexpenses of any kind or nature which may be asserted against or incurred by theSellers as the result of the examination, tests, inspections, reviews, auditsor studies of the Acquired Assets, the Premises or the Business by thePurchaser or any of its manager’s, employees, agents, contractors or designees(excluding the discovery of any preexisting condition on the Premises and anyconsequential damages arising from the foregoing).  Notwithstanding anything contained herein tothe contrary, Purchaser’s indemnity obligations set forth in this Section 3.1(b) shallsurvive any termination of this Agreement.

 

3.2           Zoning.  Prior to Closing, Purchaser shall haveconfirmed that the Premises and the current and intended uses thereof will bein compliance, as of the Closing Date, with all applicable building and zoningcodes and any restrictions unique thereto.

 

3.3           TitleCommitment; Defects.

 

(a)           Withinthirty (30) days following the Agreement Date, the Purchaser shall cause theTitle Company to issue and deliver its commitment (the “Commitment”) forissuance of an ALTA Owners Policy (Form B - revised 10-17-92) of titleinsurance covering the Premises in the full amount of the Purchase Price, whichCommitment shall show leasehold title to the Premises to be vested in theSellers, subject only to the Permitted Encumbrances.  Copies of the Commitment together with copiesof each document affecting title to the Premises referenced therein, except formonetary encumbrances which are to be released at Closing, shall be deliveredto Purchaser and the Sellers.

 

(b)           Purchasershall notify Sellers of Purchaser’s disapproval of any matter contained in theTitle Evidence within five (5) days after Purchaser’s receipt of all ofthe Title Evidence and copies of the documents referred to in the TitleEvidence as exceptions or exclusions from coverage.  If the Title Evidence is not satisfactory toPurchaser (collectively, “Defects”), those Defects shall, as a condition toPurchaser’s obligations under this Agreement, be cured or removed from theTitle Evidence at or prior to  theClosing Date.  If Sellers elect not to orare otherwise unable to cure and remove all Defects at or prior to the ClosingDate (or any extension thereof), this Agreement may be terminated, at Purchaser’ssole election, by written notice given to Sellers within five (5) daysafter expiration of the period allowed for cure and the Deposit, if not alreadyreleased, shall be promptly released by the Escrow Agent pursuant to Section 2.1(b) above,or Purchaser may, at Purchaser’s sole election, waive such uncured Defects andproceed to close this transaction with no diminution of the Purchase Price.

 

(c)           Notwithstandingany provision of this Section 3.3 to the contrary, Sellers shallhave the obligation, on or prior to the Closing Date, to secure releases,discharges or satisfactions, or otherwise cure at no cost to Purchaser, anyDefect which is a Lien for the payment of money only which arises by or throughthe Sellers (except real estate and *ad valorem*taxes and assessments which shall be prorated in 

 

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accordance with Section 10), including,without limitation, all construction mortgages, any Lien or encumbrance whichmay be released or discharged by the payment of a definite sum of money or anyexception to title which arose as the result of the act or violation of Sellersor anyone claiming by, from, through or under Sellers.

 

(d)           Itshall be a condition precedent to Purchaser’s obligation to consummate thetransaction contemplated hereby that the Title Company will, upon filing theinstruments for conveyance of record, issue its ALTA Owner’s Leasehold Policy (Form Brevised 10-17-92) of title insurance (the “Title Policy”) in the full amount ofthe Purchase Price, at standard rates, insuring Purchaser in leasehold title tothe Premises subject only to the Permitted Encumbrances, and without theexception for certain of the standard printed exceptions (encroachments,overlaps, boundary line dispute, or any other matters which would be disclosedby an accurate survey or inspection of the Premises, easements or claims ofeasements not shown by the public records, or any lien or right to a lien forservices, labor or materials furnished to the Premises, imposed by law, and notshown by the public records), unless and except to the extent that any suchmatters included in the so-called standard printed exceptions have beenapproved or waived by Purchaser.  TheTitle Policy shall also affirmatively insure: (i) Purchaser’s right to use any appurtenant easements inaccordance with their terms and conditions; (ii) contiguity of the parcelsdescribed in Exhibit A (if more than one parcel); (iii) thatthe Premises have the benefit of full and free ingress and egress, bothpedestrian and vehicular, directly to and from a public highway; and (iv) suchother and additional endorsements or conditions as the Purchaser may require.Sellers agree to execute and deliver to the Title Company such affidavits andinstruments as may be reasonably required to permit the Title Company to issuePurchaser’s Title Evidence in the form required by this subsection and toprovide a copy of such affidavits and instruments to Purchaser.  The cost and expense of such Owner’s Policyshall be borne solely by the Purchaser.

 

3.4  Survey.  Within ten (10) days of the AgreementDate, Sellers shall deliver to the Purchaser any surveys of the Premises inSellers’ possession, together with a copy of any reports, leases, documents,notices, citations or records of any type or form in the possession of theSellers relating to or identifying: (i) a physical deficiency in thePremises; (ii) an adverse effect on the Premises, including, but notlimited to, any records, notices or citations relating to or concerning anyaspect of the environmental condition of the Premises; or (iii) a changein the current, zoning, accessibility, physical characteristics, insurability,damage, condemnation, takings of or to any portion of the Premises.  Following the Agreement Date, Purchaser shallhave the right, at its sole election, to cause a registered surveyor orprofessional engineer to prepare a survey (the “Survey”) in form sufficient toenable the Title Company to delete from the Title Policy the so-called standardexception for matters disclosed by an accurate Survey.  A perimeter legal description of the Premisesas prepared by such surveyor or engineer shall be used to describe the Premisesin Exhibit A.  The cost andexpense of such Survey shall be borne by the Purchaser.  A copy of the Survey shall be furnished tothe Sellers.  In the event the Surveydiscloses any encroachments, overlaps, boundary line disputes or any othermatter affecting the Premises or which violates any law, rule orregulation or is otherwise unacceptable to the Purchaser, such matter(s) shallbe considered to be a Defect(s) and the relative rights and obligations ofthe parties with respect thereto shall be governed by the provisions of Section 3.3hereof.

 

3.5           EnvironmentalMatters.

 

Purchaser, at its sole election (subject to thelandlord’s consent under the Property Lease and Purchaser’s agreement to repairany damage caused thereby), may cause an environmental evaluation and/orconsulting firm (the “Consultant”) selected by Purchaser to conduct anenvironmental inspection and audit of the Premises (the “Audit”), including,without limitation, a Phase I, II or III site assessment study.  The cost and expense of such Audit shall beborne by the Purchaser.  To the extentenvironmental audits for the Premises have been previously obtained by Sellers;Sellers, as applicable, shall deliver 

 

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copies of same to Purchaser within fifteen (15) daysof the Agreement Date.  Purchaser andSellers shall cooperate in an attempt to achieve the result that the Audit isperformed as soon as practicable and is completed no later than the DepositForfeit Date.  In addition to providingany information reasonably requested by the Consultant, Sellers shall cooperatewith Purchaser and the Consultant throughout the course of the Audit and shallcooperate in any other way reasonably requested by Purchaser or the Consultant.

 

3.6           OtherRecords and Documents.

 

(a)           Inaddition to the foregoing and to the extent the below-listed documents are inthe possession of the Sellers, the Sellers agree to deliver to the Purchaser,within fifteen (15) days of the Agreement Date, a full and accurate list andreasonably complete details concerning each item described below and a copy ofeach document to the extent such copies are in the possession or control of theSellers:

 

(i)            copiesof any and all certificates of title, liens, encumbrances, leases, deeds oftrust, mortgages, judgments, rights-of-way, easements, covenants, conditions orrestrictions, other exceptions or matters of record relating to or affectingany real or personal property used in the Business;

 

(ii)           copiesof all certificates of occupancy, zoning variances, licenses, permits,authorizations and approvals relating to the Premises or the Business from anyGovernmental Body having jurisdiction over the Premises or the Business,together with any other notices and agreements related thereto, including, butnot limited to, any and all gaming and liquor licenses and permits and renewalsof the same or applications therefore;

 

(iii)          tothe extent not already required above, copies of any and all environmentalpermits, notices, demands, action letters, reports, assessments, audits,directives from any Governmental Body, documentation of any environmentalmatter related to the Premises; identification of which portion of the Premiseshas ever been or is now being used for the storage, generation, treatment,manufacture, disposal or release of any “hazardous substance” as defined by anyEnvironmental and Safety Requirements, identification of all waste disposalsites and the location of all underground storage tanks or lines, whether inuse or abandoned; a summary of all environmental testing done by the Sellers;and identification of any event of non-compliance with an Environmental andSafety Requirement;

 

(iv)          copiesof all real estate, personal property, fuel and *ad valorem*taxes, assessments, general and special, bills and returns, gaming and liquorlicense fees and renewals and any and all notices of violations, delinquenciesand/or assessments of the same received by the Sellers within twenty-four (24)months preceding the Agreement Date;

 

(v)           copiesof any and all leases affecting the Premises or the Business in any manner,including, but not limited to, the Property Lease and the Restaurant Subleaseand any and all amendments or addendums thereto;

 

(vi)          copiesof monthly financial statements, including an income and balance sheetstatement for each month of the Business’s operation if in the possession orcontrol of the Sellers (and will continue to provide Purchaser this informationwithin fifteen (15) days of the end of each calendar month during the term ofthis Agreement during which the Business is open to the general public, if thesame is in the possession or under the control of the Sellers);

 

(vii)         copiesof any and all Contracts (as defined hereinafter) affecting the Premises or theBusiness in any manner;

 

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(viii)        copiesof any and all invoices, bills, contracts, agreements, payment applications,records and evidence of actual payments, retainage statements, lien waivers,notices, etc., relating to the construction of the Truck Stop and/or any otherimprovements on the Premises; and

 

(ix)           anyother documents and information reasonably requested by the Purchaser.

 

# **Section 4.               Termination.  Notwithstanding anything contained in thisAgreement to the contrary and in addition to any other rights of termination ofthe Purchaser under this Agreement, if at any time prior to the Closing Date,any of the studies, Title Evidence, Survey, audits, inspections, testing,reviews or other activities performed pursuant to Sections 3.1, 3.2, 3.3,3.4, 3.5 or 3.6, or any other information (including information related tothe Purchaser’s financing), however gathered or obtained, shall revealinformation or conditions unacceptable to the Purchaser, in its solediscretion, then Purchaser shall have the option to terminate thisAgreement.  Upon receipt of such notice,this Agreement shall terminate and thereafter be null and void and of nofurther force and effect, and the Escrow Agent shall promptly return theDeposit to the appropriate party as identified in Section 2.1(b) above.**

# ** **

### Section 5.               Leases.

###  

### (a)           Within ten (10) Business Days ofthe Completion of the Truck Stop, Sellers and Purchaser shall enter into amutually agreeable Lease Agreement for the lease of the fueling  and convenience store operations of the TruckStop by the Purchaser.

###  

### (b)           Prior to the Deposit Forfeit Date,Purchaser shall have entered into an amendment to the Property Lease to beeffective upon the Closing hereunder, containing such terms and conditions asshall be acceptable to the Purchaser in its sole discretion.

###  

Section 6.               Representationsand Warranties of the Sellers.  As amaterial inducement to the Purchaser to enter into this Agreement and purchasethe Acquired Assets hereunder, the Sellers each hereby, jointly and severally,represent and warrant to the Purchaser as follows:

 

6.1           Organization, Power and Licenses.

 

(a)           MarketStreet is duly formed, validly existing and in full force and effect under thelaws of the State of Delaware and is qualified to do business in Louisiana andevery other jurisdiction in which its ownership of property or the conduct ofbusiness requires it to qualify.  MarketStreet possesses all requisite power and authority, and all licenses, permitsand authorizations necessary, to own and operate its properties, to carry onits businesses as now conducted and to carry out the transactions contemplatedby this Agreement.  Market Street is notin violation of any of the provisions of its Articles of Organization or OperatingAgreements.

 

(b)           All consents and any other necessarylimited liability company action required to permit Market Street to legallyenter into this Agreement and consummate the transactions described herein havebeen or will be completed and copies of the same shall be provided to the Purchasernot later than ten (10) days prior to the Closing hereunder..

 

(c)           Sellers, as applicable, own onehundred percent (100%) of all rights, title and interests in and to theAcquired Assets, free and clear of any Liens or Indebtedness, excepting onlythe Permitted Encumbrances, with full, valid, unencumbered power and authorityto convey the same, excluding only those assets identified on Schedule6.9(a).  There are no preemptiverights, warrants, options, or rights of first refusal with respect to the transferof the Acquired Assets hereunder.  TheAcquired Assets are all of the assets used in or necessary to the operation ofthe Business, excluding only those liquor or gaming 

 

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licenses which are to be acquiredby the Purchaser following the Closing hereunder to permit the operation ofDevices at the Premises.

 

(d)           Any individuals who have any spousalor dower rights in any of the Acquired Assets, the Premises or the Business,under any federal, state or local law have joined in the execution of thisAgreement and have consented to the transfers contemplated herein and upon suchtransfers shall have waived any and all interests, rights or titles they mayhave in and to the Acquired Assets or the Business.

 

6.2           Affiliates;Subsidiaries; Investments.  There areno Affiliates or other Persons in which the Sellers own, of record orbeneficially, any direct or indirect equity, Investment or other interest orany right (contingent or otherwise) to acquire the same, or in which theSellers otherwise participate, which would have or has any interest in theBusiness or the Acquired Assets.

 

6.3           Authorization;No Breach.  The execution, deliveryand performance of this Agreement and all other agreements, instruments andtransactions contemplated hereby and thereby to which any Seller is a partyhave been duly authorized by all requisite organizational approvals.  This Agreement and all other agreements andinstruments contemplated hereby to which any Seller is a party each constitutesa valid and binding obligation of the Sellers, as applicable, enforceable inaccordance with its terms.  Assuming thepayment of all Liens by the Sellers at the Closing, the execution and deliveryby the Sellers of this Agreement and all other agreements and instrumentscontemplated hereby to which the Sellers are a party, the offering and sale ofthe Acquired Assets hereunder and the fulfillment of and compliance with therespective terms hereof by the Sellers, does not and shall not: (i) conflictwith or result in a breach of the terms, conditions or provisions of, (ii) constitutea default under, (iii) result in the creation of any Lien upon theAcquired Assets pursuant to, (iv) give any third party the right tomodify, terminate or accelerate any obligation under, (v) result in aviolation of, or (vi) require any authorization, consent, approval,exemption or other action by or notice or declaration to, or filing with, anycourt or Governmental Body or third-party pursuant to, the Articles ofOrganization or Operating Agreements of the applicable Sellers or any law,statute, rule or regulation to which the Sellers are subject or anyagreement, instrument, order, judgment or decree to which the Sellers or theirassets are subject.

 

6.4           Absenceof Liabilities.

 

(a)           The Closing Reports, certified,individually, by the Sellers and attached hereto as Schedule 6.4(a), aretrue, accurate and complete copies of the agreements and contracts presentedtherein.  After giving effect to thetransactions to occur at the Closing, neither the Business nor the Sellers willhave any liabilities or Indebtedness, including, but not limited to, income taxliabilities, contingent or otherwise, other than as described on Schedule6.4(a).  The Closing Reports shall beupdated on the Closing Date and shall be true, accurate and complete andconsistent with any and all filings with any federal, state or localauthorities or agencies as of the most recent reporting date prior to theClosing Date.

 

(b)           Exceptas described on Schedule 6.4(b), none of the Sellers has:

 

(i)            anyliabilities or Indebtedness (whether accrued, absolute, contingent,unliquidated or otherwise, whether due or to become due, whether known orunknown, and regardless of when asserted) which will remain a Lien upon theBusiness or the Acquired Assets following the Closing hereof, nor which willbecome a liability, Indebtedness or obligation of the Purchaser on or after theClosing, other than the Assumed Contracts;

 

(ii)           asrelates to the Business, made any Capital Expenditures for which liability, inany form, will remain after the Closing Date; or

 

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(iii)          issued:(a) any notes, bonds or other debt securities which will remain or becomean obligation of the Acquired Assets, the Business or the Purchaser on or afterthe Closing Date, or (b) any shareholder/owner interests or other equitysecurities, membership interests or any securities convertible, exchangeable orexercisable into any ownership interests in the Business or Acquired Assets; or

 

(iv)          sold,assigned or transferred any of the Business’s Intellectual Property Rights orother intangible assets, or disclosed any of the Business’s proprietaryconfidential information to any Person; or

 

(v)           madeany loans or advances to, guarantees for the benefit of, or any Investments inthe Business or the Acquired Assets, that will not have been completely repaidand/or terminated as of the Closing Date; or

 

(vi)          knowledgeof, or have caused the Business or any Acquired Asset to suffer any, damage,destruction or casualty loss which has had or may in the future have a MaterialAdverse Effect on the Business, whether or not covered by insurance; or

 

(vii)         asrelates to the Business, borrowed any amount of, incurred or become subject to,any liabilities, except current liabilities consisting solely of accountspayable and trade payables incurred in the ordinary course of business andliabilities under leases identified elsewhere in this Agreement; or

 

(viii)        as relatesto the Business, discharged or satisfied any Lien or paid any obligation orliability, other than current liabilities paid in the ordinary course ofbusiness; or

 

(ix)           asrelates to the Business, mortgaged or pledged any of its properties or assetsor subjected them to any Lien, except Permitted Encumbrances; or

 

(x)            asrelates to the Business, sold, assigned or transferred any of its tangibleassets, except in the ordinary course of business, or cancelled any debts orclaims; or

 

(xi)           asrelates to the Business, suffered any extraordinary losses or waived any rightsof value, whether or not in the ordinary course of business or consistent withpast practice; or

 

(xii)          asrelates to the Business, made any commitments for Capital Expenditures that havenot expired as of the Agreement Date; or

 

(xiii)         agreedto do any of the foregoing.

 

6.5           NoAdverse Change.  From the AgreementDate to and through the Closing Date, there has not been nor shall there be anyadverse change in the operating results, operations, condition (financial orotherwise), prospects, employee relations or customer or supplier relations ofthe Business or the Acquired Assets, as applicable.  From the Agreement Date to and through theClosing Date, Sellers shall promptly give Purchaser notice of any adversechange in the operating results, operations, condition (financial orotherwise), prospects, employee relations or customer or supplier relations ofthe Business or the Acquired Assets, as applicable, of which they haveknowledge.

 

6.6           Absenceof Undisclosed Liabilities.  NoSeller nor any Affiliate has any obligation or liability (whether accrued,absolute, contingent, unliquidated or otherwise, whether due or to become dueand regardless of when asserted) related or attaching to or affecting in anymanner the Business or the 

 

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Acquired Assets and arising out of transactionsentered into at or prior to the Closing, or any action or inaction at or priorto the Closing, or any state of facts existing at or prior to the Closing,other than (a) liabilities set forth on the Closing Reports, and (b) otherliabilities and obligations expressly disclosed on Schedule 6.6.

 

6.7           BusinessProperty.  The Sellers, asapplicable, have good, valid and one hundred percent (100%) complete title toall of the Acquired Assets, free and clear of any Lien other than PermittedEncumbrances, and have full power and authority to convey and transfer the samefree and clear of any and all claims by any Person whatsoever.  The Acquired Assets constitute all of theassets and real property and improvements used by any of the Sellers in ornecessary for the operation of the Business as of the Closing Date, other thanliquor and gaming licenses to be acquired by the Purchaser following theClosing as necessary for the operation of Devices at the Premises.  The Sellers have secured the written consentsin form and substance reasonably acceptable to the Purchaser of all other membersor owners of Market Street to the sale hereunder, and as a condition precedentto the Closing shall deliver such written consent to the Purchaser.

 

6.8           Tax Matters.  The Purchaser shall have no liability for orexposure to any Taxes arising from the operation(s) of the Business priorto the Closing Date.  All necessary andrequired Tax Returns have been timely filed and are correct in all materialrespects as to the amount of tax owed and have been prepared in compliance withall applicable laws and regulations in all respects; the Sellers have paid allTaxes due and owing by any of them (whether or not such Taxes are required tobe shown on a Tax Return) and have withheld and paid over to the appropriatetaxing authority all Taxes which it or they are required to withhold fromamounts paid or owing to any employee, member, creditor or other third party;no Seller has waived any statute of limitations with respect to any Taxes oragreed to any extension of time with respect to any material Tax assessment ordeficiency; as of the Agreement Date, no foreign, federal, state, parish orlocal tax audits or administrative or judicial proceedings are pending or beingconducted with respect to the Business or any of the Acquired Assets; noinformation related to Tax matters has been requested by any foreign, federal,state or local taxing authority and no written notice indicating an intent toopen an audit or other review has been received by Sellers from any foreign,federal, state, parish or local taxing authority.

 

6.9           Contractsand Commitments.

 

(a)           Exceptas listed on Schedule 6.9(a), there are no agreements, contracts,leases, licenses, commitments or instruments (including any and all amendmentsthereto) (collectively, the “Contracts”) to which the Business is a party or bywhich the Business or any of the Acquired Assets are bound or subject.  There are no commitments or agreements withany third-party or Governmental Body affecting the Business or the AcquiredAssets which are not listed on Schedule 6.9(a).  Except as otherwise expressly noted on Schedule6.9(a), each agreement listed on Schedule 6.9(a) is in fullforce and effect and constitutes a legal, valid and binding obligation ofBusiness, assignable to the Purchaser hereunder, upon Purchaser’s writtenconsent to assume the same.   Except asotherwise expressly noted on Schedule 6.9(a), no such Contract is indefault or breach (with or without the giving of notice or the passage of timeor both) and no other party is in default or breach of any such Contracts andthe Sellers under each such Contract are or will be as of the Closing Datetimely in their payments of any and all sums or any performance obligationsunder each such Contract.

 

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(b)          Sellers agree to execute and deliver on the Closing Date suchdocuments, estoppels and instruments as are necessary and reasonably acceptableto the Purchaser and Purchaser’s counsel to completely transfer, set-over andassign to the Purchaser those contracts and only those contracts listed on Schedule6.9(b).

 

6.10        Intellectual Property Rights.

 

(a)           Schedule 6.10 contains a complete and accurate list of allIntellectual Property Rights, if any, owned or used by Sellers in the Business,other than rights under licenses of any original equipment manufacturers (“OEM”),i.e Windows, etc., or off-the-shelf software, such as word processing programs,etc.; *provided, however,* all ofthe Sellers’ ownership rights, if any, in and to any of the foregoing, shall constituteAcquired Assets and shall be transferred to the Purchaser hereunder.

 

(b)          The Sellers own all right, title and interest in and to all of theIntellectual Property Rights listed on Schedule 6.10, free and clear ofall Liens and there have been no claims made against Sellers asserting theinvalidity, misuse or unenforceability of any of such Intellectual PropertyRights and the Sellers shall transfer at the Closing hereunder any and allrights, title or interests, if any, they may have to the name “Market StreetTruck Plaza” or any variation thereof.

 

(c)           All Intellectual Property Rights used in or for the Business, whetherlisted or not listed on Schedule 6.10, shall be considered AcquiredAssets hereunder and shall be transferred to the Purchaser for the MinimumPurchase Price on the Closing Date. Sellers agree to execute and deliver on the Closing Date such documentsand instruments as are necessary and acceptable to the Purchaser and Purchaser’scounsel to completely transfer, set-over and assign each and every IntellectualProperty Right to the Purchaser.

 

6.11        Litigation, etc.

 

(a)           Except as set forth on Schedule 6.11, there are no actions,suits, complaints, proceedings, orders, investigations or claims pending or, tothe Sellers’ knowledge, threatened against or affecting the Sellers, theBusiness, the Acquired Assets or pending or threatened by the Sellers againstany third party, at law or in equity, and affecting in any manner the Businessor the Acquired Assets or the prospects thereof, before or by any federal,foreign, state, parish or local court, or Governmental Body (including anyactions, suits, complaints, proceedings or investigations with respect to orthreatening the transactions contemplated by this Agreement); nor has there beenany such actions, suits, complaints, proceedings, orders, investigations orclaims pending against or affecting the Business or the Acquired Assets duringthe two (2) years preceding the Agreement Date.  None of the Sellers, or any of theirAffiliates involved in the operation of the Business, are subject to anyarbitration proceedings or any governmental investigations or inquiries(including inquiries as to the qualification to hold or receive any license orpermit, including, but not limited to, the right to have Devices or sell liquorand sell or store petroleum products or byproducts); and, to the Sellers’knowledge, there is no basis for any of the foregoing.  None of the Sellers nor any of theirAffiliates is subject to any judgment, order or decree of any court or otherGovernmental Body, and has not received any written opinion or memorandum fromlegal counsel to the effect that it or they are exposed, from a legalstandpoint, to any liability which may involve or be related, in any manner, tothe Business or the Acquired Assets.

 

(b)          The Sellers do, jointly and severally, hereby indemnify, defend andhold harmless the Purchaser, and its owners, shareholders, members, directors,managers, officers, employees, agents, successors and assigns, from and againstany and all expenses, claims, fees, fines, damages or losses, includingreasonable attorney’s fees, which the Purchaser may suffer as a result of anylitigation matter, claim, arbitration, investigation or choses in actionexisting or accruing as of the Closing Date (whether or not set forth on Schedule6.11) or arising or filed at anytime and related, in any manner, to theoperation 

 

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orconstruction of the Business or ownership of the Acquired Assets by the Sellers(each, a “Litigation Matter”).  Purchasershall have the right, at its sole election, to participate in the defense ofany Litigation Matter, including, but not limited to, requiring the defense tobe conducted by legal counsel of its choice.

 

6.12        Brokerage.  There are no claims for brokeragecommissions, finders’ fees or similar compensation in connection with thetransactions contemplated by this Agreement based on any arrangement oragreement binding upon Sellers.

 

6.13        Required Consents.  Except as listed on Schedule 6.13 (the“Consents”), no consents, approvals or other like permission are required ornecessary from any Governmental Body or from any third party for theconsummation of the transactions contemplated by this Agreement.

 

6.14        Insurance.

 

(a)           All assets, propertiesand risks of the Business or the Acquired Assets are, and for the period oftheir operation and/ownership by the Sellers have been, covered by valid andcurrently effective insurance policies or binders of insurance (includinggeneral liability and property insurance) issued in favor of the Sellers, ineach case with responsible insurance companies, in such types and amounts andcovering such risks as are consistent with customary practices and standards ofcompanies engaged in businesses and operations similar to those of the Businessand such coverage shall continue through midnight of the Closing Date.  All refunds or costs associated with thecancellation of such policies shall be the sole asset of and responsibility ofthe Sellers.

 

(b)          In the event that any ofthe Acquired Assets or any portion of the Business is damaged or otherwise thesubject of a casualty or condemnation on or prior to the Closing Date, and thereduction in the fair market value of the Acquired Assets or the Business as aresult of the casualty or condemnation reasonably exceeds One Million Dollars($1,000,000.00), then either the Purchaser or Sellers shall have, in theirsole, independent discretion, the right to terminate this Agreement.  If the reduction in the fair market value asa result of any casualty or condemnation is less than One Million Dollars($1,000,000.00), only the Purchaser shall have the right to elect to terminatethis Agreement.  If following acondemnation or casualty that occurs on or prior to the Closing Date, neitherparty elects to terminate this Agreement, then Purchaser shall proceed to closewithout any reduction in the Purchase Price and any and all insurance proceedsand the right to contest or make a claim for the same shall become the propertyof the Purchaser after the Closing Date and no Seller shall have any right,title or interest in or to the same and each does hereby relinquish any and allinterest therein; *provided, however,*eachof the foregoing shall fully cooperate in assigning and securing any and allinsurance proceeds on behalf of the Purchaser. In the event Purchaser or Sellers shall elect to terminate thisAgreement pursuant to this Section 6.14(b) with the exceptionof the Purchaser’s indemnity set forth at Section 3.1(b), this Agreementshall thereafter be null and void and of no further force and effect and noparty hereto shall have any further obligation or liability hereunder, and theEscrow Agent shall promptly thereafter return the Deposit to the Purchaser.

 

6.15        Transactions withAffiliates.  Except as disclosed on Schedule6.15 or as otherwise provided for herein, the Business has no outstandingcontracts, agreements, loans, obligations, debts or other legally bindingarrangement with the Sellers or any of their Affiliates that will survive theClosing.

 

6.16        Employees, Officer andDirectors.

 

(a)           No Seller, on behalf ofthe Business, has ever maintained or contributed to, any employee benefit plan(as defined in Section 3(3) of ERISA) or any bonus, incentive,retirement, deferred compensation, retiree medical or life insurance,supplemental retirement, severance or other benefit plans, programs orarrangements, or any employment, termination, severance or other contracts oragreements, 

 

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and, except as set forthon Schedule 6.16(a), there exists no employee benefit plan for which theSellers could incur liability on behalf of the Business under Section 4069of ERISA in the event such plan has been or were to be terminated.  Any employee of the Business may beterminated without cause at any time for any lawful reason without obligationon the part of the Sellers to make any payment therefore.

 

(b)          The Sellers, asappropriate, agree to terminate and dismiss, for any lawful reason, withoutcreating any financial or other obligation to the Business or the Purchaser anyemployee or agent of the Business, as may be requested by the Purchaser, whichtermination shall be effective not later than midnight on the Closing Date.

 

(c)           Notwithstanding theforegoing, nothing contained in this Agreement shall prohibit the Purchaser, orits designee, from entering into an employment relationship under such termsand conditions as are acceptable to the Purchaser, with any employee, manageror agent of the Business.

 

6.17        Labor Matters.  As of the Agreement Date and the ClosingDate, Sellers shall have no employees and accordingly, no Seller is a party toany collective bargaining or other labor union contract applicable to personsemployed for the benefit of the Business, no collective bargaining agreement isbeing negotiated by the Sellers and none of the Sellers has knowledge of anyactivities or proceedings (a) involving any unorganized employees of theBusiness seeking to certify a collective bargaining unit or (b) of anylabor union to organize any of the employees of the Business.  There is no labor dispute, strike or workstoppage against the Sellers affecting or threatening to affect theBusiness pending or threatened which may interfere with the operation of thePremises or the Business.

 

6.18        Compliance with Laws.

 

(a)           Each Seller and theBusiness is now and at all times has been in material compliance (provided thelack of any compliance will not have or have had a Material Adverse Effect onthe Business or the Acquired Assets) with all applicable federal, state andlocal statutes, ordinances, rules, regulations, permits, consents, licenses,orders or other authorizations governing or related to the Acquired Assets orthe Business and the Business’s liquor and gaming related activities,including, but not limited to, the Liquor and Gaming Laws of the State ofLouisiana, as amended, and the rules and regulations promulgatedthereunder, and no Seller nor any Affiliates thereof, have received any notice,demand, complaint or order from any Governmental Body asserting that a licenseof or related to the Business should be revoked, suspended, not issued orissued with qualifications, or that they or the Business are not in fullcompliance with the same.

 

(b)          Except as set forth in Section 6.18(a),to each of the Sellers’ or their Affiliates’ knowledge, there is noinvestigation or review of the Acquired Assets or the Business now underway orthreatened by any Governmental Body, including, without limitation, anyinvestigation or review by any gaming authority, nor has any of the foregoingindicated an intention to conduct the same.

 

6.19        Environmental andSafety Matters.  Except as set forthon Schedule 6.19, with respect to the Business, the Premises and theAcquired Assets:

 

(a)           the Sellers and theirAffiliates, as applicable, have complied and are in compliance, in allrespects, with all Environmental and Safety Requirements;

 

(b)           without limiting the generalityof the foregoing, each of the Sellers and any of their Affiliates have obtainedand complied with, and are in compliance, in all respects, with all permits,licenses and other authorizations that may be required pursuant toEnvironmental and Safety Requirements for the occupation of the Premises andthe operation of the Business, including, but not 

 

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limited to, the sale andstorage of fuel and fuel oil and the disposal of the Business’s waste water, alist of all such permits, licenses and other authorizations is set forth on Schedule6.19(b);

 

(c)           none of the Sellers norany of their Affiliates have received any written or oral notice, report orother information or has any knowledge regarding any actual or allegedviolation of Environmental and Safety Requirements, including anyinvestigatory, remedial or corrective obligations, relating to the Business,the Premises or any Acquired Asset arising under Environmental and SafetyRequirements;

 

(d)          to each of the Seller’sknowledge, none of the following exists at the Premises:  (i) asbestos-containing material in anyform or condition; (ii) materials or equipment containing polychlorinatedbiphenyls; or (iii) landfills, surface impoundments (i.e. ground disposalsareas, covered or uncovered, in which trash or any other materials are storedor disposed of) or similar disposal areas;

 

(e)           none of the Sellers norany of their Affiliates have caused, will not knowingly cause, and there hasnot occurred during the time the Sellers have leased or operated the Premises,any of the Acquired Assets or the Business, the release of any “hazardoussubstance” on the Premises in violation of any Environmental and SafetyRequirements;

 

(f)           none of the Sellers orany of their Affiliates has, either expressly or by operation of law, assumedor undertaken any liability, including any obligation for corrective orremedial action, of any other Person relating to Environmental and SafetyRequirements; and

 

(g)          to each of the Seller’sknowledge, Schedule 6.19(g) is a full, complete and accurate listof all Underground Storage and Aboveground Storage Tanks (UST’s and AST’s,respectively) on the Premises, each of which is now and has at all times priorhereto been operated and maintained in full compliance with all applicableEnvironmental and Safety Requirements.

 

6.20        GovernmentalAuthorizations.  Any registration,declaration or filing with, or consent, approval, license, permit or otherauthorization or order by, any Governmental Body, domestic or foreign, that isrequired in connection with the valid execution, delivery, acceptance andperformance by the Sellers under this Agreement or the consummation by theSellers of any transaction contemplated hereby or as otherwise necessary forthe operation of the Business by the Sellers has been or will be completed, made or obtained on or before the ClosingDate, except: (a) any such filings or approvals that may be required ofthe transfer contemplated hereunder by the Louisiana State Police and theLouisiana Gaming Control Board; and (b) gaming and liquor licenses to beobtained by the Purchaser following the Closing hereunder.

 

6.21        Premises.  To the best of the Sellers’ knowledge,information and belief, there is not now pending nor threatened: (a) anylitigation or proceeding to take all or any portion of the Premises by eminentdomain or other condemnation proceeding; (b) any street widening orchanges in any highway or traffic lanes or patterns in the immediate vicinityof the Premises; or (c) other change or modification by a GovernmentalBody which would adversely affect the Premises, the Business or any of theAcquired Assets.  Further, (i) thePremises are connected to and serviced by adequate water, gas, sewage disposaland electric facilities; (ii) all material systems of the Premises,including, but not limited to, heating, ventilation, air conditioning,electrical, plumbing, roof, fuel pumps and lines, etc., are new and in goodoperating condition; and (iii) the Premises and all improvements locatedthereon are in full compliance with current building and zoning laws.  Sellers have no information or knowledge thatany portion of the Premises are being condemned or otherwise taken for use aspart of any street widening process.

 

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6.22        Disclosure.  To the best of the Sellers’ knowledge,information and belief, neither this Agreement, nor any of the exhibits,schedules, attachments, written statements, documents, certificates, reports orother items prepared or supplied to the Purchaser by or on behalf of theSellers or any of their Affiliates with respect to the transactionscontemplated hereby contain any untrue statement of a material fact or omit a material fact necessary tomake each statement contained herein or therein not misleading.

 

6.23        Operations.  There will be no Deviceslocated on the Premises at the Closing. All Restaurant and convenience store operations shall be conductedpursuant to the Restaurant Sublease and all fueling operations shall beconducted by the Purchaser pursuant to the lease referred to in Section 5(a) above.

 

6.24        Certain Payments.  Noofficer, director, employee or agent of the Business, the Sellers or any oftheir Affiliates, nor any other person acting with or on behalf of the Businesshas directly or indirectly offered, agreed to make or made any contribution,gift, bribe, rebate, payoff, influence payment, kickback or other payment toany Person, private or public, regardless of form, whether in money, propertyor services (i) to obtain favorable treatment in securing business,permits or licenses, (ii) to pay for favorable treatment for business,permits or licenses secured, (iii) to obtain any special concessionsor for special concessions already obtained or (iv) in violation of anylegal requirement.

 

6.25        Interest inCompetitors, Suppliers and Customers. Except as set forth on Schedule 6.25, none of the Sellersnor any Affiliates of the foregoing, have any ownership interest in any competitor,supplier or customer of the Business.

 

6.26        No-Shop.  Sellers,for themselves and for any Affiliates, agree that until the termination orexpiration of this Agreement, neither they nor any of their Affiliates shallenter into any agreements nor have discussions with any third parties for thesale of the Acquired Assets nor grant any rights of first refusal or options toacquire the same in any form whatsoever. Sellers acknowledge for themselves and for their Affiliates during theterm of this Agreement, Purchaser shall have the sole and exclusive right topurchase the Acquired Assets.

 

6.27        Representations andWarranties of the Purchaser.  As amaterial inducement to the Sellers to enter into this Agreement and sell theAcquired Assets hereunder, the Purchaser represents and warrants to each of theSellers as follows:

 

(a)           Purchaser is dulyformed, validly existing and in good standing under the laws of the State ofDelaware. Purchaser possesses all requisite power and authority, and alllicenses, permits and authorizations necessary, to own and operate itsproperties, to carry on its businesses as now conducted and presently proposedto be conducted and to carry out the transactions contemplated by thisAgreement.  Purchaser is not in violationof any of the provisions of its Articles of Incorporation or By-Laws.

 

(b)          The execution, deliveryand performance of this Agreement and all other agreements, instruments andtransactions contemplated hereby and thereby to which the Purchaser is a partyhave been duly authorized by all requisite company approvals.  This Agreement and all other agreements andinstruments contemplated hereby to which the Purchaser is a party eachconstitutes a valid and binding obligation of the Purchaser enforceable inaccordance with its terms.  The executionand delivery by the Purchaser of this Agreement and all other agreements andinstruments contemplated hereby to which the Purchaser is a party, the purchaseof the Acquired Assets hereunder and the fulfillment of and compliance with therespective terms hereof by the Purchaser, does not and shall not: (i) conflictwith or result in a breach of the terms, conditions or provisions of, (ii) constitutea default under, (iii) result in a violation of, the Articles of Incorporationor By-Laws of the Purchaser, or any law, statute, rule or regulation towhich the Purchaser is subject.

 

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Section 7.               ConditionsPrecedent.

 

7.1          Conditions to thePurchaser’s Obligations.  Theobligation of the Purchaser to purchase the Acquired Assets shall be expresslysubject to the satisfaction and fulfillment, at or before the Closing, of eachof the following conditions precedent and any other such conditions statedelsewhere in this Agreement.

 

(a)           Prohibition.  There shall have been no lawsuit, judgment,order, suit, complaint or preliminary or permanent injunction entered, pendingor threatened in any action or proceeding before any United States federal,state, parish or local court, or any foreign court, of competent jurisdictionor Governmental Body threatening or enjoining, in whole or in part, theBusiness’s current operations, making illegal or prohibiting the consummationof the transactions hereunder, including the transfer of the Acquired Assetsand the operation of Devices on the Premises.

 

(b)          Related Agreements.  Purchaser shall have received the leases andany amendments referred to in Section 5 above and any otheragreements referred to elsewhere in this Agreement.

 

(c)           Representations True.  The representations and warranties of theSellers set forth in this Agreement and the exhibits, schedules, attachments,written statements, documents, certificates, Closing Reports, financialstatements or other items prepared or supplied to the Purchaser by or on behalfof the Sellers, shall be true and correct in all material respects on theClosing Date with the same effect as though all such items had been made on andas of such date, and the Sellers shall each deliver to the Purchaser a certificatecertified by an officer of Market Street and each Seller, individually,certifying such or identifying any changes as of the Closing Date (the “ClosingCertificate”).

 

(d)          Good StandingCertificate.  The Purchaser shallhave received a good standing certificate for Market Street dated withinfifteen (15) days prior to the Closing Date.

 

(e)           Condition of Assets.  The Acquired Assets shall be in good physicaland operating condition, excepting normal wear and tear only.  No damage or casualty shall have occurred tothe Acquired Assets or operations of the Business prior to the Closing Date,excluding only ordinary non-material wear and tear.

 

(f)           Legal Opinion.  Purchaser shall have received a legalopinion, substantially in the form of Exhibit G attached hereto,from legal counsel for the Sellers.

 

(g)          No Adverse Change.  As of the Closing Date, there shall be nomaterial adverse change in the condition of the Acquired Assets.

 

(h)          Estoppel.  An estoppel certificate in form and substanceacceptable to the Purchaser in its sole discretion from Market Street and thelessor/landlord under the contracts identified on Schedule 6.9(b), a copy ofwhich shall be provided to the Sellers prior to the Deposit Forfeit Date.

 

(i)            AdditionalDocuments.  The Purchaser shall havereceived from the Sellers, as appropriate, each of the instruments and otherdocuments referred to elsewhere in this Agreement.

 

(j)            Assumed ContractConsents.  The Purchaser shall havereceived the consent(s) of the lessors under the leases and/or contractsidentified on Schedule 6.9(b).

 

(k)           Title Policy.  The Title Company shall be unconditionallyprepared to issue the Title Policy in the name of the Purchaser or itsdesignee, in the amount of the Purchase Price.

 

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(l)            Financing.  The Purchaser shall have received the fundsfrom any financing for the contemplated purchase of the Acquired Assets.

 

(m)          Certificate ofOccupancy.  A final certificate ofoccupancy or its equivalent has been issued by the appropriate GovernmentalBody permitting the unconditional occupation and operation of the Truck Stop.

 

7.2          Conditions to theSellers’ Obligations.  The obligationof the Sellers to sell the Acquired Assets to the Purchaser shall be subject tothe satisfaction and fulfillment, at or before the Closing, of the followingconditions precedent:

 

(a)           There shall have beenno lawsuit, judgment, order, suit, complaint or preliminary or permanentinjunction entered, pending or threatened in any action or proceeding beforeany United States federal, state, Parish or local court, or any foreign court,of competent jurisdiction or Governmental Body (which has jurisdiction over theenforcement of any applicable laws) making illegal or prohibiting theconsummation of the transactions hereunder, including the transfer of theAcquired Assets or the operation of Devices on the Premises;

 

(b)          Purchaser has timelydelivered or caused to be delivered the Minimum Purchase Price, plus or minusany applicable prorations and the Deposit hereunder, to the Escrow Agent;

 

(c)           Purchaser shall haveperformed all obligations and complied with all agreements and covenantsrequired hereunder to be performed by Purchaser on or before the Closing Date;

 

(d)          Purchaser’srepresentations and warranties contained herein and in any documents furnishedto the Sellers on or prior to the Closing Date shall be true and correct in allrespects as of the Closing Date;

 

(e)           The Title Company hasconfirmed to Sellers that the Title Company is unconditionally prepared todisburse the Minimum Purchase Price (plus or minus all applicable prorationsand less the Escrow Hold Back) to the Sellers or its designees subject only tothe performance by the Sellers of their respective obligations under this Agreement;

 

(f)           Sellers shall havereceived the Agreements referred to in Section 7.1(b).

 

(g)          The Sellers shall havereceived the consent(s) of the lessors under the leases and/or contractsidentified on Schedule 6.9(b).

 

(h)          Except for the consentsunder item (g) above, if any of the foregoing conditions are not satisfiedon or prior to the Closing Date for a reason other than a default under thisAgreement by the Sellers, Sellers shall give the Purchaser written notice ofthe foregoing conditions not satisfied and Purchaser shall have ten (10) BusinessDays during which to cure the same.  Inthe event the Purchaser is unable to cure the conditions within such period,the Sellers may terminate this Agreement and the Escrow Agent shall promptlyrelease the Deposit to the Seller as their liquidated damages and no as apenalty.  Acceptance by any of theSellers of any portion of the Minimum Purchase Price shall be evidence of thewaiver by each of the Sellers of the foregoing conditions precedent.

 

Section 8.               Omitted.

 

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Section 9.               Non-Solicitation.

 

9.1          Notwithstanding anythingcontained in this Agreement to the contrary, each of the Sellers, forthemselves and their Affiliates, agrees for a period of two (2) years followingthe Closing and as partial consideration for the Purchase Price, that neitherthey, nor their Affiliates, shall knowingly employ, solicit for employment orinduce to leave their employment or other relationship, any employee, customer,vendor or supplier of the Purchaser, its Affiliates or the Business, nor anyemployee who may be permanently hired by the Purchaser or Southern TradingCorporation.

 

9.2          Nothing contained inthis Section is intended nor shall it be construed as prohibiting anyparty from running “help wanted” ads or other general solicitations foremployees or from hiring respondents to such general solicitations, regardlessof whether such respondents are or have been employed by one of the parties tothis Agreement.

 

Section 10.             Assignment,Adjustments and Prorations, Closing.

 

10.1        Assignment.       Subject to Purchaser’sreview and acceptance of Title Evidence, Sellers shall convey the Premises toPurchaser by an Assignment (the “Assignment”), attached hereto as Exhibit H,conveying good, marketable and indefeasible leasehold title to the Premisessubject only to the following:

 

(a)           Zoning laws;

 

(b)          Currentreal estate and *ad valorem*taxes and assessments,if any, not yet due and payable; and

 

(c)           PermittedEncumbrances.

 

10.2        Taxes and Assessments:Closing Costs.

 

(a)           All amounts payableunder the Property Lease or the Restaurant Sublease,  utilities, costs, charges and expensesgenerated by the operations of the Acquired Assets and paid by the Sellers andother similar charges, as well as revenues generated by the Acquired Assetsthat accrued to the Sellers, shall be prorated between the Sellers and thePurchaser as of the Closing Date, such that credits, charges, costs, expensesand revenues up to noon local time on the Closing Date and all days precedingthe Closing Date shall be allocated to Sellers, as applicable, and credits,charges, costs, expenses and revenues after noon local time on the Closing Dateshall be allocated to Purchaser.  The PurchasePrice shall be adjusted at the Closing to reflect the prorations, in accordancewith the Settlement Statement.

 

(b)          If the actual amount ofReal Estate Taxes is not known on the Closing Date, Real Estate Taxes shall beprorated on the basis of the rate shown for the Premises on the last availabletax bill; provided, that there shall be deducted therefrom all applicablecredits.  Sellers represent and warrantthat there are no special assessments with regard to the Premises.  Upon receipt of the final tax bill for theperiod encompassing the Closing Date, the parties shall adjust, outside of theescrow, the proration of Real Estate Taxes based upon the actual tax bill.

 

(c)           If any errors oromissions are made regarding adjustments and prorations as aforesaid, theparties shall make the appropriate corrections promptly upon the discoverythereof. Any corrected adjustment or proration shall be paid in cash to theparty entitled thereto.

 

(d)          Sellers shall not assignany policies of liability or property damage insurance covering the Premises. Noinsurance premiums shall be prorated. Purchaser shall pay for recording fees. Purchaser shall pay any Louisiana transfer taxes and conveyance feesassociated with the conveyance of 

 

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the Sellers’ interests inthe Real Property.  Escrow fees shall bepaid by the Purchaser.  Each party shallpay its own attorneys’ fees and all expenses incurred by it other than expensesspecifically addressed elsewhere in this Agreement.  All revenues and expenses arising from theownership or operation of the Acquired Assets, or the Business (collectively,the “Operating Charges”) accruing, earned or incurred on or prior to theClosing Date shall be the sole responsibility of the Sellers (regardless ofwhen an invoice is issued or payment for such charges and expenses is due),including but not limited, to any salaries, utilities, taxes or other costs(together with all costs, expenses or fees related to the construction of theTruck Stop).  All Operating Chargesarising from the ownership or operation of the Acquired Assets and the Businessand incurred after the Closing Date shall be the sole responsibility of thePurchaser.  The parties shall make areasonable proration of the Operating Charges at Closing based upon the mostrecent invoice for each Operating Charges and shall adjust such proration uponreceipt of the final invoice encompassing the Closing Date for each suchOperating Charges.

 

(e)           Closing.  This transaction shall be closed through anescrow that is to be held by the Title Company, in accordance with the generalprovisions of the usual form of escrow agreement then in use by such TitleCompany for transactions similar to this with such special provisions insertedas may be required to conform with this Agreement.  Each party shall execute and deliver on atimely basis all escrow instructions, deeds, funds, the Settlement Statementand other documents reasonably necessary to accomplish Closing.  In addition to, and not in limitation of, theforegoing:

 

(i)            On or before theClosing Date, Sellers shall execute, deliver or cause to be delivered to theTitle Company all of the items listed below:

 

(a)           TheAssignment;

 

(b)           Anyother instruments then required pursuant to any other sections of thisAgreement;

 

(c)           MechanicsLien Affidavit required by the Title Company; and

 

(d)           EachSeller’s affidavit of non-foreign status, as contemplated by Section 1445of the Code attached hereto as Exhibit E.

 

(ii)           On or before theClosing Date, Purchaser shall deliver or cause to be delivered to Title Companythe Minimum Purchase Price, subject to the prorations and credits as hereinprovided, and execute and deliver to the Sellers an assumption agreement inform and substance reasonably satisfactory to Sellers and their counsel underwhich the Purchaser, or its designee, assumes and agrees to perform allobligations under the Assumed Contracts that accrue after the Closing Date.

 

(iii)          The transactionsprovided for in this Agreement shall be completed by the Title Company on theClosing Date by doing each of the following:

 

(a)           byfiling the Assignment for record in the Records of Caddo Parish, Louisiana;

 

(b)           bycausing the issuance of the Title Policy, subject only to the PermittedEncumbrances, and forwarding the Title Policy to Purchaser with a copy toSellers;

 

(c)           byprorating taxes, assessments and other amounts, in accordance with thisAgreement and the Settlement Statement with respect to the 

 

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Premises, andpaying and charging Purchaser or Sellers for those costs and expenses to bepaid by Sellers or Purchaser pursuant hereto;

 

(d)           bydelivering to Purchaser: (i) the Seller’s/Owner’s Affidavit and Indemnity,fully executed by the applicable Sellers, and attached hereto as Exhibit I;and (ii) the FIRPTA Affidavit attached hereto as Exhibit E;  and

 

(e)           bypreparing and forwarding to Purchaser and Sellers four (4) signed copiesof the Settlement Statement setting forth all receipts and disbursementsprovided for herein.

 

In addition to theobligations required to be performed hereunder by Sellers at the Closing,Sellers agree to perform such other acts, and/or to execute and deliver toPurchaser such further instruments, documents and other materials, as arereasonably requested by Purchaser at or subsequent to Closing in order toeffect the consummation of the transaction contemplated herein and to vesttitle to the Premises and the Acquired Assets in Purchaser, including, withoutlimitation, the assignment of all rights of Sellers in and to any easements forthe benefit of the Premises; *provided,however,* that the foregoing instruments and other materials, if any,shall not enlarge the scope of Sellers’ obligations hereunder.

 

(f)           In the event the TitleCompany is unable to simultaneously perform all instructions set forth in Section 10(f)(iii)(a) through(e) on the Closing Date, the Title Company shall so notify Sellers andPurchaser, and shall retain, unless otherwise instructed by the partydepositing the same, all documents and funds deposited with the Title Companyuntil receipt by the Title Company of written instructions executed by Sellersand Purchaser or by a Court of competent jurisdiction.

 

(g)          If the Purchaser (i) disapprovesany condition referred to in this Agreement within the applicable time periodand in the manner set forth in the Agreement, or (ii) is otherwise allowedto terminate this Agreement and cancel the Escrow, without thereby committingan act of default under this Agreement or the Escrow and does so, allobligations of the parties under this Agreement shall, except as otherwise setforth, terminate and none of the parties hereto shall have any furtherobligation to the other under this Agreement. In such event, Escrow Agent shall return all funds (after deducting itscharges, if its charges are to be borne by the party depositing such funds) anddocuments then in Escrow to the party depositing same unless otherwise setforth in Section 2.1(b) above which Section in the event of anyconflict shall be controlling, and each party shall promptly return alldocuments in the possession of such party to the other party.

 

(h)          Possession.  At noon local time on theClosing Date, subject in all events to the payment by the Purchaser of theMinimum Purchase Price, Sellers shall cease operation of the Acquired Assetsand shall deliver possession thereof to the Purchaser, and all risk of losswith respect thereto shall pass to the Purchaser or its designee.

 

(i)            Inventory Count.  The Sellers and Purchaser agree that at 7:00 a.m.local time on the Closing Date, a representative from each of them (the “Representatives”)shall meet at the Truck Stop and shall cooperate to turn over, at noon localtime, subject in all events to the payment of the Minimum Purchase Price by thePurchaser, all keys, passwords, accounts, and copies of all records, documents,instruments and any other items necessary for the immediate and completeoperation of the Acquired Assets.

 

(j)            Escrow Hold Back.  From and after the Closing Date, Escrow Agentshall withhold the Escrow Hold Back from the Sellers’ proceeds hereunder andshall hold such funds in escrow.  In theevent: (i) the Purchaser shall receive any invoice, bill or letterdemanding payment for any Operating 

 

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Charges that accrued orrelate to any period of time on or prior to the Closing Date; or (ii) anyexpenses, charges, costs, fees or obligations related to the construction ofthe Truck Stop, Purchaser shall send evidence of such Operating Charges to theEscrow Agent and to the Sellers (“Hold Back Notice”).

 

(i)            Sellers shall have ten(10) Business Days following their receipt of the Hold Back Notice toserve, in writing to both the Escrow Agent and the Purchaser, any objections theymay have to the same.  If no objection istimely served by the Sellers, Escrow Agent is herewith authorized, withoutfurther action by any party, to promptly pay such Operating Charges out of theEscrow Hold Back.

 

(a)           If Sellers shall timelyobject to any payment out of the Escrow Hold Back and the basis for anobjection is that the Operating Charges that are the subject of the Hold BackNotice arose after the Closing Date, then the Escrow Agent shall hold suchamount as is identified in the Hold Back Notice until such time as it receiveswritten instructions from all parties to disburse the same; or

 

(b)           If Sellers shall timelyobject to any payment out of the Escrow Hold Back and the basis for anobjection is anything other than an objection based upon Section 10(j)(i)(a) above,the Escrow Agent shall hold the funds identified in the Hold Back Notice for anadditional thirty (30) calendar days, after which it shall disburse such fundsas directed by the Purchaser.

 

(ii)           Promptly after thatdate which is ninety (90) days after the Closing Date (“Hold Back ExpirationDate”), Escrow Agent shall release any funds then remaining in the Escrow HoldBack to the Sellers, unless such funds have been the subject of a Hold BackNotice and subsequent objection in which event such funds shall remain inescrow until the Escrow Agent has received written instructions from both thePurchaser and the Sellers.

 

Section 11.             Miscellaneous.

 

11.1        Expenses.  Unless specifically allocated by thisAgreement, each of the parties shall be obligated to pay its own expenses(including all fees and expenses of legal counsel, environmental consultantsand accountants).

 

11.2        Sellers’ Resignation.    Sellers shall and shall cause their owners,shareholders, members, managers, officers, employees and agents to, resigneffective as of the Closing Date, any positions they may hold within theBusiness, including, but not limited to, the positions of agent or employee.

 

11.3        Update to Schedules andExhibits.  The Sellers, asappropriate, shall promptly notify the Purchaser, prior to the Closing Date, ofany changes or modifications to the information contained on the schedules orexhibits attached to this Agreement or in any document, record or instrumentsupplied to the Purchaser or any of its agents as a part of the transactionscontemplated herein and provide in written form an amended schedule, exhibit,document, record or instrument, as the case may be.  Notwithstanding anything contained herein to thecontrary, Sellers shall update the attached Schedules within thirty (30) daysof the Closing Date.  Notwithstanding theforegoing, upon receipt of any change or modification to any schedule orexhibit or in any record, document or instrument described above which shallhave or identify a Material Adverse Effect, Purchaser shall have the right, inits sole discretion, to terminate this Agreement and upon such termination thisAgreement shall be null and void and of no further force and effect and noparty hereto shall have any further liability or obligation hereunder.  If at the time of the foregoing termination,the Deposit remains with the Escrow Agent, it shall be released pursuant to theterms and conditions of Section 2.1(b).

 

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11.4        Remedies.

 

(a)           In the event of anyactual or alleged default by any party hereto (the “Defaulting Party”), thenon-defaulting party (the “Non-Defaulting Party”) shall provide written noticeto the Defaulting Party (“Default Notice”) specifying the default; settingforth the Non-Defaulting Party’s claim that the matter constitutes a default;and identifying the steps or actions that the Non-Defaulting Party believesshould be taken in order to cure the alleged default.  The Defaulting Party shall have a period ofseven (7) days, or such additional time as may be reasonably required, tocure the alleged default (the “Cure Period”), excepting only as to the paymentof the Minimum Purchase Price or the Earn Out Payment for which there is noadditional time granted to the Purchaser. The Defaulting Party shall have no liability for any actual or allegeddefault that is cured within the Cure Period.

 

(b)          Eachof the parties hereto shall have all rights and remedies set forth in thisAgreement and any other documents or instruments relating to the consummationof the transactions contemplated under this Agreement, and all rights andremedies which such parties have been granted at any time under any otheragreement or contract and all of the rights which such parties have under anylaw.  No remedy hereunder or thereunderconferred is intended to be exclusive of any other remedy, and each and everysuch remedy shall be cumulative and shall be in addition to every other remedygiven hereunder or thereunder or now or hereafter existing at law or in equityor by statute or otherwise.  The Sellersand Purchaser having any rights under any provision of this Agreement shall beentitled to enforce such rights specifically (without posting a bond or othersecurity), to recover damages by reason of any breach of any provision of thisAgreement and to exercise all other rights granted by law.

 

11.5        Amendments and Waivers.  No oral modification hereof shall be bindingupon the parties; all modifications and amendments shall be in writing andsigned by the parties.  Failure by anyparty to insist upon or enforce any of its respective rights, benefits orremedies shall not constitute a waiver thereof. Any party hereto may waive the benefit of any provision or condition forsuch party’s benefit contained in this Agreement; *provided, however,* such a waiver must be specificallyexpressed in writing.

 

11.6        Survival of Agreement.  All covenants, representations and warrantiescontained in this Agreement or made in writing by any party in connectionherewith shall survive the execution and delivery of this Agreement and theconsummation of the transactions contemplated hereby.

 

11.7        Successors and Assigns.  All covenants and agreements contained inthis Agreement by or on behalf of any of the parties hereto shall bind andinure to the benefit of the respective heirs, personal representatives,executors, administrators, successors and assigns of the parties hereto whetheror not so expressed; provided that none of the Sellers shall be permitted toassign their rights or obligations under this Agreement.  Except as otherwise expressly providedherein, nothing expressed in or implied from this Agreement is intended togive, or shall be construed to give, any Person, other than the parties heretoand their permitted successors and assigns, any benefit or legal or equitableright, remedy or claim under or by virtue of this Agreement or any such otherdocument.

 

11.8        Severability.  Whenever possible, each provision of thisAgreement shall be interpreted in such manner as to be effective and validunder applicable law, but if any provision of this Agreement is held to beprohibited by or invalid under applicable law, such provision shall beineffective only to the extent of such prohibition or invalidity, withoutinvalidating the remainder of this Agreement.

 

11.9        Counterparts.  This Agreement may be executed in two or morecounterparts, any one of which need not contain the signatures of more than oneparty, but all such counterparts taken together shall constitute one and thesame Agreement.

 

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11.10      Descriptive Headings;Interpretation.  The descriptiveheadings of this Agreement are inserted for convenience only and do notconstitute a substantive part of this Agreement.

 

11.11      Governing Law.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Louisiana, without regardto principles of conflict of laws.

 

11.12      Notices.  All notices, demands or other communicationsto be given or delivered under or by reason of the provisions of this Agreementshall be in writing and shall be deemed to have been given (a) whendelivered personally to the recipient, (b) one (1) Business Day afterbeing sent to the recipient by nationally recognized overnight courier service(charges prepaid), (c) three (3) Business Days after posting in theUnited States mail having been mailed to the recipient by certified orregistered mail, return receipt requested and postage prepaid, or (d) whensent via facsimile if a copy is delivered personally, couriered or mailed tothe recipient as set forth above.  Suchnotices, demands and other communications shall be sent to the parties at theaddresses indicated below:

 

If to any of theSellers, to:

 

Market StreetTruck Plaza Acquisition Corp., LLC

150 S. Los Robles Avenue, Suite 665

Pasadena, CA 91101

Attn: Loren Ostrow

Facsimile: 626-356-1164

 

If to the Purchaser, to:

 

Gameco Holdings, Inc.

718 S. Buchanan, Suite C

Lafayette, Louisiana 70517

Attn: Stan Guidroz

Facsimile: 337-233-7293

 

with a requiredcopy to:

 

Hahn Loeser &Parks LLP

3300 BP Tower

200 Public Square

Cleveland, Ohio44114

Attn: Stanley R.Gorom III, Esq.

Facsimile:216-274-2460

 

or to such other addressor to the attention of such other person as the recipient party has specifiedby prior written notice to the sending party.

 

11.13      Construction.  The partieshereto have participated jointly in the negotiation and drafting of thisAgreement.  In the event an ambiguity orquestion of intent or interpretation arises, this Agreement shall be construedas if drafted jointly by the parties hereto, and no presumption or burden ofproof shall arise favoring or disfavoring any party by virtue of the authorshipof any of the provisions of this Agreement. The parties intend that each representation, warranty and covenantcontained herein shall have independent significance.  If any party has breached any representation,warranty or covenant contained herein in any respect, the fact that thereexists another representation, warranty or covenant relating to the samesubject matter (regardless of the relative levels of specificity) which suchparty has 

 

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not breached shall notdetract from or mitigate the fact that such party is in breach of the firstrepresentation, warrantyor covenant.

 

11.14      Complete Agreement.  This Agreement, those documents expresslyreferred to herein, and the other documents of even date herewith, or dated asof the Closing Date, delivered or executed in connection with the transactionscontemplated hereby embody the complete agreement and understanding among theparties and supersede any prior agreements or representations by or among theparties, written or oral that may have related to the subject matter hereof inany way.

 

11.15      Indemnification.

 

(a)           In consideration of the Purchaser’s execution and delivery of thisAgreement and purchase of the Acquired Assets hereunder, and in addition to allof each of Sellers’ other obligations under this Agreement and in addition toall other rights and remedies available at law or in equity, each of theSellers agree, jointly and severally, to defend, protect and indemnify thePurchaser and all of its officers, directors, shareholders, members, managers,partners, Affiliates, employees, agents, representatives, successors andassigns (including those retained in connection with the transactionscontemplated by this Agreement) (collectively, the “Purchaser Indemnitees”), and save and hold each of themharmless from and against, and pay on behalf of or reimburse such party ondemand as and when incurred, any and all actions, causes of action, suits,claims, losses, costs, penalties, fees, obligations, liabilities, damages and expensesin connection therewith (irrespective of whether any such Indemnitee is a partyto the action for which indemnification hereunder is sought), includingreasonable attorneys’ fees and disbursements, interest and penalties and allamounts paid in investigation, defense or settlement of any of the foregoingand claims relating to any of the foregoing (the “Purchaser Liabilities”), incurred by the PurchaserIndemnitees or any one of them as a result of, arising out of, or relating to: (a) thebreach by any Seller of any representation, warranty, covenant, obligation orterm contained herein; (b) any claim, debt, fee, cause of action, expense,obligation or liability arising from or related in any manner to the operationof the Business and/or the Acquired Assets by the Sellers; or (c) anybreach or default by any Seller arising out of the execution, delivery,performance or enforcement of this Agreement and any other instrument, documentor agreement executed pursuant hereto, except to the extent any such PurchaserLiabilities are caused by the particular Purchaser Indemnitee’s own acts oromissions.

 

(b)          In consideration of each Sellers’ execution and delivery of thisAgreement and sale of the Acquired Assets hereunder, and in addition to all ofthe Purchaser’s other obligations under this Agreement and in addition to allother rights and remedies available at law or in equity,  the Purchaser agrees to defend, protect andindemnify each Seller and all of their officers, directors, shareholders,members, partners, Affiliates, employees, managers, agents, representatives,successors and assigns (including those retained in connection with thetransactions contemplated by this Agreement) (collectively, the “SellerIndemnitees”), and save and hold each of them harmless from and against,and pay on behalf of or reimburse such party on demand as and when incurred,any and all actions, causes of action, suits, claims, losses, costs, penalties,fees, obligations, liabilities, damages and expenses in connection therewith(irrespective of whether any such Seller Indemnitee is a party to the actionfor which indemnification hereunder is sought), including reasonable attorneys’fees and disbursements, interest and penalties and all amounts paid ininvestigation, defense or settlement of any of the foregoing and claimsrelating to any of the foregoing (the “Seller Liabilities”), incurred bythe Seller Indemnitees or any of them as a result of, arising out of, orrelating to: (a) the breach by the Purchaser of any representation,warranty, covenant, obligation or term contained herein; or (b) any claim,debt, fee, cause of action, expense or liability arising after the Closing Dateand related in any manner to the operation of the Business and/or the AcquiredAssets by the Purchaser; or (c) any breach or default  by the Purchaser arising out of theexecution, delivery, performance or enforcement of this Agreement and any other

 

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instrument,document or agreement executed pursuant hereto, except to the extent any suchSeller Liabilities are caused by the particular Seller Indemnitee’s own acts oromissions.

 

(c)           No claims for indemnification under Sections 11.15(a) and (b) aboveshall be asserted until the aggregate of such claims suffered or incurred bythe respective party are equal to or greater than $5,000, excluding onlyreimbursement for invoices, costs and expenses presented to the Purchaser bythird-parties and related to or arising at any time prior to the Closing Date.

 

11.16      Prevailing Party Fees.  In the event of a default of any condition orobligation of this Agreement on the part of any party hereto whichresults in any legal proceeding, the non-prevailing party shall pay to theprevailing party of the litigation all reasonable costs and expenses of thelegal proceeding and any appeal therefrom, including reasonable attorney’sfees.

 

11.17      Incorporation.  Any and allSchedules, Exhibits or other documents referred to herein or attached heretoare incorporated herein as if fully rewritten in this Agreement.

 

11.18      Tax Treatment Election.  The parties agree that this Agreement is forthe purchase and sale of assets and that Minimum Purchase Price and Earn-OutPayment shall be allocated among the Acquired Assets in accordance with Section 1060of the Code.  Purchaser and Sellers agreethat as a condition to the Closing they shall, by mutual agreement, allocatethe value of the Acquired Assets pursuant to the Code.  On or before the Deposit Forfeit Date, thePurchaser and Sellers, as applicable, shall complete and sign three (3) copiesof form 8594, and each agrees to act in accordance with the allocationcontained therein in the course of any Tax audit, tax review, the filing andpreparation of any Tax Returns or tax litigation.  Neither Purchaser nor Sellers shall assertthat the allocation as agreed upon was not separately bargained for at arm’slength and in good faith.

 

11.19      Additional Instrumentsand Information.  All parties agree and do hereby obligatethemselves to promptly execute any additional documents and instruments andtake any other actions necessary and proper for the complete and expeditiousimplementation and satisfaction of the provisions and intent of thisAgreement.  In addition, Sellers agreethat during and subsequent to the sale transaction, Sellers shall have acontinuing duty to supply such information and documentation and to performsuch acts as may be required by any Governmental Body or under the Liquor andGaming Laws of the State of Louisiana.

 

11.20      Monthly FinancialStatements.  Purchaser agrees toprovide, from and after the Closing Date through the 18th fullcalendar month following the month during which Devices are legally operatingat the Premises, within thirty (30) days following the close of each calendarmonth, financial statements, including a statement of income and expenses and abalance sheet prepared in manner consistent with the internal accounting andreporting practices used by the Purchaser, reflecting the operations and resultsof the Business for the prior month.

 

11.21      Future Development.

 

(a)           In furtherconsideration of the purchase of the Acquired Assets and the Business, each ofthe Sellers (“Selling Parties”) obligate themselves and their Affiliates not todirectly or indirectly, within: (Y) a fifteen (15) mile radius (“ExclusionZone”) of the Truck Stop commencing on the Closing Date and continuingthereafter uninterrupted for a period of ten (10) years; or (Z) withina fifteen (15) mile radius of any of the Purchaser’s other truck stops locatedwithin the State of Louisiana and identified on Schedule 11.21(a)(collectively,the “Purchaser’s Locations”) commencing on the Closing Date and continuingthereafter uninterrupted for a period of five (5) years: (i) own,manage, operate, control, be employed by, participate in or be connected withany aspect of a video poker truck stop facility or other 

 

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business which derivesany portion of its revenues from legal or illegal gaming (other than any of thefifteen (15) riverboat casino licenses currently authorized or any newriverboat casinos, or any successor enterprises thereto including wholly-landbased successors to the current form of riverboat casinos, subsequently authorizedby the Louisiana legislature, all of which are hereby excluded from theobligation not to do as set forth herein (collectively, the “Exclusion”)),whether as a sole proprietor, owner, partner, stockholder, member, director,officer, employee, agent, consultant, joint venturer, contractor, investor orother participant; or (ii) subject to the Exclusion, be otherwise involvedor connected in any manner with the ownership, management, operation,promotion, advertisement, solicitation of customers, marketing or sales effortsor control of any enterprise that carries on or engages in a business directlyor indirectly similar to the gaming, fueling (diesel and motor fuel),restaurant or convenience-store activities of the Business or the Purchaser’sLocations.  Schedule 11.21(a) shallbe delivered to the Sellers on the Agreement Date.

 

(b)          The foregoing obligationis an obligation not to do an act or take an action.  The Selling Parties, each for themselves andtheir Affiliates, acknowledge that the foregoing obligation not to do an act isa material inducement for the Purchaser to enter into this Agreement and is anecessary, reasonable and appropriate obligation.

 

(c)           Given the unique natureof the video poker industry and the operation of truck stop facilities, theparties hereto acknowledge and agree that the obligations contained in this Section 11.21are reasonable and necessary to protect the Business from activities for whichit otherwise has little or no ability to defend itself.  The parties hereto further acknowledge andagree that the obligations contained herein do not impose a burden upon oneparty which is not commensurate with the risk to any other party.

 

(d)          If a court of competentjurisdiction determines that the obligations contained herein are toorestrictive to be enforced, in whole or in part, this provision shall not beinvalid, and all parties agree that the court shall modify the obligationscontained herein to the extent necessary to permit their enforcement.

 

(e)           In the event of a breachor threatened breach of the provisions of this section, the Purchaser shall beentitled to an injunction restraining each of the Selling Parties frombreaching the provisions of this Agreement or from rendering any such servicesto any person, firm, corporation, association, partnership or other entitywhich would result in a breach of this Agreement.  Nothing contained in this section shall beconstrued as prohibiting the Purchaser from pursuing any other remedies availablefor a breach or threatened breach of the obligations contained in this section,including the recovery of damages from the any of the Selling Parties.

 

(f)           One Hundred Thousandand no/100 Dollars ($100,000.00) of the Purchase Price is specificallyallocated as payment to the foregoing entities and individuals as considerationfor their obligations and covenants under this Section 11.21.

 

11.22      Time of the Essence.  TIME IS OF THE ESSENCE WITH RESPECT TO EACHPROVISION OF THIS AGREEMENT.  The partiesacknowledge and agree that the preceding sentence is a central, indispensableelement of this Agreement.

 

11.23      Force Majure.  Any time period or obligation to timelyperform imposed upon any party hereunder shall be extended as necessary whenperformance of such obligation(s) is rendered impossible or unreasonablydifficult as a result of any acts of God, war, labor strikes or unrest,weather, acts of terrorism, general disruptions to the economy or day-to-dayoperations of the government of the Parish of Caddo, the State of Louisiana orthe United States of America which make conducting business unreasonablydifficult or impossible.

 

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11.24      **SUBMISSION TO JURISDICTION AND VENUE, CONSENT TOSERVICE OF PROCESS, ETC.** TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PURCHASER AND EACHOF THE SELLERS HEREBY IRREVOCABLY AND UNCONDITIONALLY:

 

(A)         AGREES THAT ANY ACTION,SUIT OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT,THE TRANSFER CONTEMPLATED HEREIN OR ANY STATEMENT, COURSE OF CONDUCT, ACT,OMISSION OR EVENT IN CONNECTION WITH ANY OF THE FOREGOING (COLLECTIVELY, “RELATEDLITIGATION”) TO WHICH EITHER IS OR MAY BE A PARTY MAY BE BROUGHT INANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN SHREVEPORT,LOUISIANA, AND SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND AGREES NOT TOBRING ANY RELATED LITIGATION IN ANY OTHER FORUM;

 

(B)          ACKNOWLEDGES THAT SUCHCOURTS WILL BE THE MOST CONVENIENT FORUM FOR ANY RELATED LITIGATION, WAIVES ANYOBJECTION TO THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCHCOURT, WAIVES ANY CLAIM THAT ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURTHAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITHRESPECT TO ANY RELATED LITIGATION, THAT SUCH COURT DOES NOT HAVE JURISDICTIONOVER IT; AND

 

(C)          CONSENTS AND AGREES TOSERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATEDLITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO IT AT THEADDRESS FOR NOTICES DESCRIBED IN THIS AGREEMENT, AND CONSENTS AND AGREES THATSUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUTNOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED INANY OTHER MANNER PERMITTED BY LAW).

 

11.25      **JURY WAIVER**  TO THE FULLEST EXTENT PERMITTED BY LAW, EACHOF THE PURCHASER AND EACH OF THE SELLERS HEREBY IRREVOCABLY AND UNCONDITIONALLYWAIVES THEIR RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS, CAUSES OF ACTIONOR SUITS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT.

 

[The remainder ofthis page is left intentionally blank.]

 

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THUS DONE AND PASSED onthe 4th day of October, 2006, at the City of Pasadena, State of Louisiana, theundersigned party having affixed its signature in the presence of me, Notary,and the undersigned competent witnesses, after due reading of the whole.

 
| WITNESSES:         | SELLERS:                                                                                |            |
|--------------------|-----------------------------------------------------------------------------------------|-----------------|
|               | MARKET STREET TRUCK  PLAZA ACQUISITION  CORP, LLC, a Delaware limited liability company |
|               |                                                                                    |
|               |                                                                                    |            |
| /s/ Allison Alanis |                                                                                    | By:             |    /s/ Paul  Alanis |
| Printed Name:      | Allison Alanis                                                                          |            | Printed Name: | Paul Alanis |
|               | Title:                                                                                  | Managing Member |
|               |                                                                                    |            |
| /s/ Andrew Yu      |                                                                                    |            |   |
| Printed Name:      | Andrew Yu                                                                               |            |   |   |
|                    |                                                                                         |                 |  |  |  |  |  |

 
|   |         /s/  Suzanne Nordberg              |   |
|--------|------------------------------------------------------------------------------------|--------|
|   | NOTARY PUBLIC                                                                      |   |
|   |                                                                               |   |
|   |       Suzanne  R. Nordberg – Commission #152529 |   |
|   | Printed Name and Notary Number                                                     |   |

 

**And nowto these presents came and appeared****, PAUL ALANIS**, tomake, join in and confirm all of the representations, warranties andindemnifications contained in the above Agreement himself, personally, as if aSeller hereunder, and to be personally liable under all such representation,warranty and indemnification provisions of the Agreement, jointly and severallywith all other Sellers, his being domiciled and having his principal place ofbusiness in the State of California and whose mailing address is declared to be150 S. Los Robles Avenue, Suite 665, Pasadena, CA 91101;

 

THUS DONE ANDPASSED on the 4th day of October, 2006, at the City of Pasadena, State ofCalifornia, the undersigned party having affixed its signature in the presenceof me, Notary, and the undersigned competent witnesses, after due reading ofthe whole.

 
| WITNESSES:         | SELLERS:                   |            |
|--------------------|----------------------------|-----------------|
|               | PAUL ALANIS                |
|               |                       |
|               |                       |            |
| /s/ Allison Alanis |                       | /s/ Paul Alanis |
| Printed Name:      |   Allison Alanis |            | Paul Alanis, individually |
|               |                       |            |
| /s/ Andrew Yu      |                       |            |   |
| Printed Name:      |   Andrew Yu      |            |   |   |
|                    |                            |                 |  |  |  |  |  |

 
|   |         /s/  Suzanne Nordberg              |   |
|--------|------------------------------------------------------------------------------------|--------|
|   | NOTARY PUBLIC                                                                      |   |
|   |                                                                               |   |
|   |       Suzanne  R. Nordberg – Commission #152529 |   |
|   | Printed Name and Notary Number                                                     |   |

 

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THUS DONE ANDPASSED on the 9 day of October, 2006, at the City of Shreveport, State ofLouisiana, the undersigned party having affixed its signature in the presenceof me, Notary, and the undersigned competent witnesses, after due reading ofthe whole.

 
| WITNESSES:          | SELLERS:       |              |
|---------------------|----------------|-------------------|
|                | RICK PERNICI   |
|                |           |
|                |           |              |
| _/s/ Janet McDonald |           | _/s/ Rick Pernici |
| Printed Name:       | Janet McDonald |              | Rick Pernici,  individually |
|                |           |              |
| _/s/ Patti Pernici  |           |              |   |
| Printed Name:       | Patti Pernici  |              |   |   |
|                     |                |                   |  |  |  |  |  |

 
|   |           /s/  Terri G. Porter    |   |
|--------|-------------------------------------------------------------------------------------|--------|
|   | NOTARY PUBLIC                                                                       |   |
|   |                                                                                |   |
|   |           Terri  G. Porter #65109 |   |
|   | Printed Name and Notary Number                                                      |   |

 

 

THUS DONE ANDPASSED on the 9 day of September, 2006, at the City of Shreveport, State ofLouisiana, the undersigned party having affixed its signature in the presenceof me, Notary, and the undersigned competent witnesses, after due reading ofthe whole.

 

 
| WITNESSES:                      | SELLERS:       |                                  |
|---------------------------------|----------------|---------------------------------------|
|                            |           |
|                            |           |                                  |
|   /s/ Janet  McDonald |           |    /s/  Sheree Pernici |
| Printed Name:                   | Janet McDonald |                                  | Sheree Pernici,  Individually and as the spouse of Rick |
|                            | Pernici        |
|   /s/ Patti Pernici   |           |                                  |   |
| Printed Name:                   | Patti Pernici  |                                  |   |   |
|                                 |                |                                       |  |  |  |  |

 
|   |           /s/  Terri G. Porter    |   |
|--------|-------------------------------------------------------------------------------------|--------|
|   | NOTARY PUBLIC                                                                       |   |
|   |                                                                                |   |
|   |           Terri  G. Porter #65109 |   |
|   | Printed Name and Notary Number                                                      |   |

 

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THUS DONE AND PASSED onthe 6 day of October, 2006, at the City of West Palm Beach, State of Florida,the undersigned party having affixed its signature in the presence of me,Notary, and the undersigned competent witnesses, after due reading of thewhole.

 
| WITNESSES:              | PURCHASER:                                          |   |
|-------------------------|-----------------------------------------------------|--------|
|                    | Gameco Holdings, Inc.,  a Delaware corporation |
|                    |                                                |   |
|                    |                                                |   |
| _/s/ Chrissy A. DeNitto |                                                | By:    |     /s/  Jeffrey P. Jacobs |
| Printed Name:           |     Chrissy  A. DeNitto         |   |   | Jeffrey P. Jacobs, CEO |
|                    |                                                |   |
|                    |                                                |   |   |
| Printed Name:           |                                                |   |   |   |
|                         |                                                     |        |  |  |  |  |  |  |  |

 
|   |           /s/  Chrissy A. DeNitto |   |
|--------|-------------------------------------------------------------------------------------|--------|
|   | NOTARY PUBLIC                                                                       |   |
|   |                                                                                |   |
|   |         /s/  Chrissy A. DeNitto #DD166299   |   |
|   | Printed Name and Notary Number                                                      |   |

 

39

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