“Actual Working Capital” – as defined in Section 3.4(d).
“Affiliate” – means, with respect to any Person, (i) any other Person directly or indirectly controlling, controlled by, or under common control with such Person, or (ii) any Person owning or controlling fifty percent (50%) or more of the outstanding voting interests of such Person.
“Agreed Accounting Principles” means U.S. generally accepted accounting principles as in effect on the Effective Date or as otherwise agreed by the parties.
“Allocation Schedule” – as defined in Section 3.6(a).
“Approval Orders” – means the Canadian Approval Order and the U.S. Approval Order. “Assigned Marks” – as defined in Section 9.13(a).
“Assumed Claims” – means all rights, claims and causes of action against the Companies’ landlords, vendors and customers.
“Assumed Contracts” – as defined in Section 2.3(a). “Assumed Liabilities” – as defined in Section 3.2.
“Assumed Real Property Leases” – as defined in Section 2.3(a). “Assumption and Cure Motion” – as defined in Section 2.3(b).
“Audited Financial Statements” – means the consolidated financial statements of the Silver Dollar Group of Casinos for the year ended December 31, 2009, as audited by LeMaster & Daniels PLLC.
“Bankruptcy Court” – as defined in Recital C.
“Base Consideration Amount” – as defined in Section 3. “Bidding Procedures Order” – as defined in Section 9.4(a). “Big Nevada” – as defined in the Preamble.
“Bill of Sale and Assignment and Assumption Agreement” – as defined in Section 4.2(a). “Breakup Fee” – as defined in Section 12.5.
“Business” – as defined in Recital H.
“Business Day” – means any day other than a Saturday, Sunday or statutory holiday in the State of Washington.
“Buyer” – as defined in the Preamble.
“Buyer Employees” – as defined in Section 9.7(a).
“Buyer’s Knowledge” – means the actual current knowledge of any of Robert B. Sturges and James Kohn, without any independent duty of investigation or inquiry.
“Canadian Approval Order” – as defined in Section 9.4(b). “Canadian Court” – as defined in Recital A.
“Cash Payment” – as defined in Section 3.1(b)(ii). “Casino” and “Casinos” – as defined in Schedule H. “CCAA” – as defined in Recital A.
“CCAA Proceeding” – as defined in Recital A. “Change Form” – as defined in Section 9.13(b). “Close of Business” – as defined in Section 3.4(a). “Closing” – as defined in Section 4.1.
“Closing Date” – as defined in Section 4.1.
“Closing Time” – means (i) as to the Sea-Tac Casino, 5:00 a.m.; (ii) as to the GN Tukwila Casino, 4:00 a.m.; (iii) as to the Club Hollywood Casino, 3:00 a.m.; (iv) as to the SD Tukwila Casino, 8:00 a.m.; (v) as to the Renton Casino, 6:00 a.m.; (vi) as to the Royal Casino, 9:00 a.m.; and (vii) as to the Millcreek Casino, 6:00 a.m. (with all times local).
“Club Hollywood Casino” – as defined in Schedule H. “Company” – as defined in the Preamble.
“Consent” – means any approval, consent, ratification, waiver or other authorization. “Contract” – means a lease, rental agreement, contract, license or similar binding obligation, but does not include a Real Property Lease.
“Current Assets” – means the current assets of the Companies determined in accordance with the Agreed Accounting Principles, in each case to the extent (and only to the extent) included in the Purchased Assets.
“Current Liabilities” – means the current liabilities of the Companies determined in accordance with the Agreed Accounting Principles, in each case to the extent (and only to the extent) included in the Assumed Liabilities.
“Deposit” – as defined in Section 3.1(a).
“Designation Deadline” – means the date that is ten (10) Business Days prior to the Bankruptcy Court’s scheduled hearing for approval of the U.S. Approval Order.
“Disputed Cure Costs” – as defined in Section 2.3(b). “Domain Name Agreement” – as defined in Section 4.2(d). “Drift on Inn Casino” – as defined in Section 9.11.
“EBITDA Adjustment Amount” – as defined in Section 3.5(b)(iii). “EBITDA Difference Amount” – as defined in Section 3.5(a). “EBITDA Threshold Amount” – as defined in Section 3.5(a). “Effective Date” – as defined in the Preamble.
“Employee Obligations” – as defined in Schedule 2.6(d).
“ERISA” – means the Employee Retirement Income Security Act of 1974, as amended. “Escrow Account” – as defined in Section 3.1(a).
“Escrow Agent” – as defined in the Escrow Agreement.
“Escrow Agreement” – means an escrow agreement among Buyer, the Receiver and the financial institution designated therein as the Escrow Agent, which escrow agreement shall be in substantially the from of Exhibit A attached hereto.
“Estimated Working Capital” – as defined in Section 3.4(a). “Evergreen” – as defined in Recital A.
“Excluded Assets” – as defined in Section 2.2. “Excluded Contracts” - as defined in Section 2.2. “Excluded Liabilities” – as defined in Section 3.3.
“Executory Contract” – means any Contract that is “executory”, as such term is used in section 365 of the U.S. Bankruptcy Code.
“Expense Reimbursement” – as defined in Schedule 2.6(d). “Extension Closing” – as defined in Section 2.6.
“Extension Closing Date” – as defined in Section 2.6. “FCC” is defined in Recital E.
“FCC Lender” means FCC, its successors, assigns and/or affiliates. “FCF” is defined in Recital E.
“FCO” is defined in Recital E.
“Final Working Capital” – as defined in Section 3.4(b).
“Force Majeure Event” – means the occurrence of any of the following events: (i) a change in any applicable Laws prohibiting, or restricting or limiting in any material manner, the conduct of the Business of a Casino and will continue to materially impair the ability of a Casino to conduct its Business for a material period of time, (ii) any physical damage, destruction or other casualty loss (whether or not covered by insurance) which materially impairs or limits the conduct of the Business of a Casino, whether as a result of fire, earthquake, flood, act of God or other event, for a material period of time and will continue to materially impair the ability of a Casino to conduct its Business for a material period of time (iii) the commencement of any action of eminent domain or similar proceedings by any Governmental Authority which
materially impairs or limits the conduct of the Business of a Casino for a material period of time and will continue to materially impair the ability of a Casino to conduct its Business for a material period of time or (iv) any significant labor difficulties which materially impairs the ability of a Casino to conduct its Business for a material period of time and will continue to materially impair the ability of a Casino to conduct its Business for a material period of time;
provided, however, except for any Force Majeure Event that has or will have a material financial
Events set forth in clauses (i) through (iv) may be cured prior to the Closing by the Receiver, at its cost and expense, or at the election of Buyer and at Buyer’s sole cost and expense.
“Fortress” – as defined in Recital E.
“Fortress Accommodation” – as defined in Section 3.1(b)(iii).
“Fortress Loan Documents” – means those loan documents by and between Buyer (or an entity that directly or indirectly owns and controls Buyer) and FCC Lender to be entered into at Closing in connection with the Fortress Accommodation.
“Gameco” – as defined in the Preamble.
“Gaming Consultants” – as defined in the Preamble. “Gaming Management” – as defined in the Preamble. “GN Tukwila Casino” – as defined in Schedule H. “Golden Nugget” – as defined in the Preamble.
“Governmental Authority” – means any government or any agency, board, bureau, commission, court, department, official, political subdivision, quasi-governmental, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign.
“Hollydrift” – as defined in the Preamble.
“Independent Accountants” – means a nationally or regionally recognized firm of independent certified public accountants as Buyer and the Receiver shall mutually agree upon.
“Initial Period” – as defined in Schedule 2.6(d).
“Internal Revenue Code” – means the Internal Revenue Code of 1986. “Law(s)” – means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States or Canada, or any state, county, city or other political subdivision or of any Governmental Authority.
“Liens” – means all pledges, liens, charges, claims, security interests, restrictions or other encumbrances of any kinds.
“Little Nevada” – as defined in the Preamble. “Major Repair Item” – as defined in Section 9.12. “Mill Creek” – as defined in the Preamble.
“Neutral Party” – as defined in Section 3.7. “Objection Notice” – as defined in Section 3.4(c).
“Order” – means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award of a Governmental Authority.
“Original Monitor” – as defined in Recital A. “Other Offer” – as defined in Section 9.4(d).
“Person” – means any individual, corporation, partnership, limited liability company, joint venture, estate, trust, association, labor union, or other entity or governmental body.
“Plan” - means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workmen's compensation or other insurance,
severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, whether written or oral, including, but not limited to, any “employee benefit plan” within the meaning of Section 3(3) of ERISA or any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA.
“Player Supported Jackpots” – as defined in Washington Administrative Code Section 230-15-360.
“Prequalification Questionnaire” – as defined in Section 6.
“Proceeding” – means any action, arbitration, audit, hearing, investigation, litigation, or suit commenced, brought, conducted, or heard by or before, or otherwise involving, any
governmental body or arbitrator.
“Purchase Price” – as defined in Section 3. “Purchased Assets” – as defined in Section 2.1. “RCH” – as defined in the Preamble.
“Receiver” – as defined in the Preamble.
“Receiver’s Knowledge” – means the actual current knowledge of Mark Wentzell acting on behalf of the Receiver, without any independent duty of investigation or inquiry.
“Receivership Order”– as defined in Recital E. “Receivership Order Date”– as defined in Recital F. “Repair Item” – as defined in Section 9.12.
“Repair Notice” – as defined in Section 9.12.
“Repair Objection Notice” – as defined in Section 9.12.
“Required Governmental Approvals” – as defined in Section 4.3(e).
“Representative” – means with respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.
“Royal Casino” – as defined in Schedule H. “Sea-Tac Casino” – as defined in Schedule H. “Service Supplier” – as defined in Section 2.6(d).
“Service Supplier Agreement” – as defined in Section 2.6(d). “Services” – as defined in Schedule 2.6(d).
“Tangible Personal Property” – means office, casino, restaurant and bar equipment; gaming tables, gaming chips and gaming paraphernalia, player-tracking systems, counting equipment and gauge systems; video cameras, recording devices and security surveillance equipment; machinery, equipment, tools and tooling (including expendable tooling), furniture, fixtures, leasehold improvements, motor vehicles, point of sale equipment, signs and signage, uniforms, laundry and linens, silverware, glassware, chinaware, pots, pans and utensils and merchandise.
“Tax Returns” – means, collectively, all returns, reports and similar statements (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to any Governmental Authority relating to Taxes.
“Tax” or “Taxes” – means any taxes, charges, fees or other assessments imposed by any Governmental Authority, including all Federal, state, local, foreign and other income, gross receipts, franchise, capital stock, withholding, payroll, social security, unemployment, disability, real property, personal property, sales, use, ad valorem, excise, transfer, profits, license, customs, estimated, severance, stamp, occupation, value added and corporation and any other taxes, including any interest, penalties or additions on or to the foregoing.
“Third Party Transaction” – as defined in Section 12.5. “Trademark Agreement” – as defined in Section 4.2(c). “Transfer Taxes” – as defined in Section 9.6(a).
“Unaudited EBITDA Amount” – as defined in Section 3.5(a).
“Undisputed Cure Costs” – means those monetary amounts that must be paid and nonmonetary obligations that otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the U.S. Bankruptcy Code, in order for Buyer to assume those
Executory Contracts, if any, specified in the EC Notice and the Assumed Real Property Leases. “U.S. Approval Order” – as defined in Section 9.4(c).
“U.S. Bankruptcy Code” – as defined in Recital C. “U.S. Proceeding” – as defined in Recital C. “Use Tax Return” – as defined in Section 9.6(a).
“WARN Act” – means the Worker Adjustment and Retraining Notification Act of 1988 or any similar applicable state or local Law requiring notice to employees in the event of a closing or layoff.
“WGI” – as defined in Recital B.
“Working Capital Adjustment Amount” – as defined in Section 3.4(e). “Working Capital” – means Current Assets minus Current Liabilities. “WSGC” – means the Washington State Gambling Commission. “WSLCB” – means the Washington State Liquor Control Board.
Schedule 2.1