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This excerpt taken from the CHDN 8-K filed Jul 18, 2005. ARTICLE 10
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Section 10.03 Option Revival. Notwithstanding the termination of this Agreement pursuant to Section 10.01(b) above due to the occurrence of a Redevelopment Date, if following the Redevelopment Date the Company and/or the Parent ceases the redevelopment of the Real Property or modifies its redevelopment plans, in either case to pursue gaming activities permitted by a Trigger Event, then this Agreement and the Option shall be automatically reinstated upon the receipt of written notice from either Investor or Parent to the other of the occurrence of such event. In such event, Investor shall have 90 days to deliver a Diligence Notice to the Company and Parent, at which time the provisions of Sections 2.01 and 2.02 shall be applicable.
ARTICLE 10
Termination
Section 10.01 Grounds for Termination. Subject to Section 10.03 below, unless earlier terminated by mutual agreement of the parties, the Option and this Agreement shall terminate on September 23, 2013 or, if prior to that date,
(a) on the date provided for in Section 2.01(c) or (d), as the case may be, if applicable; or
(b) on the Redevelopment Date if no Trigger Event shall have occurred prior thereto; or
(c) on the date upon which Parent or the Company consummates the sale of the Assets, the Racetrack Business and the Real Property to a Person or Persons that are not Affiliates or Related Parties (if permitted by Section 6.03 hereof), or
(d) on the date of a sale to the Majority Member (or its assignee) pursuant to Section 8.03, or a Third Party Sale under Section 8.04.
Notwithstanding anything to the contrary in this Agreement, the provisions in Sections 5.02, 6.02, 8.01, 8.02, 8.03 and 8.04 shall be reflected in the limited liability agreement of the Company following the Reinvestment Date.
Section 10.02 Effect of Termination. If this Agreement is terminated as permitted by Section 10.01, such termination shall be without liability of any party (or any member, stockholder, director, officer, partner, employee, agent, consultant or representative of such party) to any other party to this Agreement.
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Section 10.03 Option Revival. Notwithstanding the termination of this Agreement pursuant to Section 10.01(b) above due to the occurrence of a Redevelopment Date, if following the Redevelopment Date the Company and/or the Parent ceases the redevelopment of the Real Property or modifies its redevelopment plans, in either case to pursue gaming activities permitted by a Trigger Event, then this Agreement and the Option shall be automatically reinstated upon the receipt of written notice from either Investor or Parent to the other of the occurrence of such event. In such event, Investor shall have 90 days to deliver a Diligence Notice to the Company and Parent, at which time the provisions of Sections 2.01 and 2.02 shall be applicable.
10. TERMINATION.
This Agreement may be terminated:
10.1 Injunction. By either Buyer or Seller if any court or Governmental Authority of competent jurisdiction in the United States shall have issued an order (other than a temporary restraining order), decree, judgment or ruling or taken any other action restraining, enjoining or otherwise prohibiting the Transactions and such order, decree, ruling or other action shall have become final and non-appealable.
10.2 Mutual Agreement. By mutual written agreement of Buyer and Seller.
10.3 Required Consents. By failure to obtain any Required Consents as of the Closing Date, subject to Seller's right to a reasonable extension in order to obtain such Required Consents.
10.4 Material Breach. By either Buyer or Seller, if there has been a material breach on the part of the other party in its representations, warranties or covenants set forth herein; provided, however, that if such breach is susceptible to cure the breaching party shall have twenty (20) business days after receipt of notice from the other party of its intention to terminate this Agreement pursuant to this Section 10.4 in which to cure such breach. Termination for material breach shall not impair any party’s rights to pursue any available remedies at law or in equity.
10.5 Environmental Termination. By Seller or Buyer pursuant to Article 12.
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10.6 Uncured Asset Loss. By Buyer, if any loss, damage, impairment, confiscation or condemnation of all or any portion of the Assets (each, an “Asset Loss”) occurs with respect to an asset which is material to the Casino Building or an asset which is material to the operation of the Racetrack Business and such Asset Loss is not cured by Seller prior to the Closing Date (it being acknowledged that Seller shall not have any obligation to do so); provided, however, that notwithstanding anything to the contrary set forth herein, (i) in the event such Asset Loss may be cured within 180 days, but may not be cured by Seller prior to the Closing Date despite the diligent undertakings of Seller to cure such Asset Loss prior to the Closing Date, Seller shall have the right to extend the Closing Date by such reasonable period of time as necessary to cure such Asset Loss prior to the Closing Date, provided that such time period shall not exceed 180 days from the date of the Asset Loss (the “Extended Closing Date”), by providing written notice of such election to Buyer and, notwithstanding anything to the contrary set forth herein, this Agreement may be terminated by Buyer pursuant to this Section 10.6 solely if such Asset Loss is not cured by Seller by such Extended Closing Date or (ii) Buyer shall have the right to elect to receive the net insurance proceeds attributable to such Asset Loss (if and to the extent that such Asset Loss was an insured loss) in lieu of Seller’s cure of such Asset Loss prior to the Closing Date, in which event, notwithstanding anything to the contrary set forth herein, Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 10.6.
10.7 Effects of Termination. If this Agreement is terminated pursuant to this Section 10, all obligations of the parties hereunder (except for those pursuant to Section 10 and Sections 6.3.3, 11.1, 13.2, 13.8, 13.9 and 13.10) shall terminate without liability of any party to any other party; provided, however, that no termination shall relieve any party from any liability arising from or relating to a material breach prior to termination.
| IF THE SALE IS NOT CONSUMMATED DUE TO A MATERIAL BREACH BY BUYER HEREUNDER, THEN SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, WHICH RETENTION SHALL OPERATE TO TERMINATE THIS AGREEMENT AND RELEASE BUYER FROM ANY AND ALL LIABILITY HEREUNDER, EXCEPT AS PROVIDED IN SECTIONS 10, AND SECTIONS 6.3.3, 11.1, 13.2, 13.8, 13.9 AND 13.10. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S INDEMNITY OBLIGATIONS HEREUNDER. |
EXCERPTS ON THIS PAGE:
| 8-K | Jul 18, 2005 |
| 8-K (2 sections) | Jul 12, 2005 |
RELATED TOPICS for CHDN:
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