EXHIBIT 10.27
SALE AGREEMENT
THIS SALE AGREEMENT (this "Agreement") is entered into on July 2,
1999, by and between The President Riverboat Casino-Mississippi, Inc.,
a Mississippi corporation ("Purchaser"), President Casinos, Inc. and
President Mississippi Charter Corporation (collectively with Purchaser
and President Casinos, Inc., the "President Group"), on the one hand,
and American Gaming & Entertainment, Ltd. ("AGEL"), AmGam Associates
("AmGam"), American Gaming & Resorts of Mississippi, Inc. ("AGRM"),
the Committee for the Unsecured Creditors of AmGam, the Committee for
the Unsecured Creditors of AGRM, International Game Technology, Inc.
("IGT"), and Shamrock Holdings Group, Inc. (formerly known as Xxxxxxx
Holdings Group, Inc.) ("Shamrock" and collectively with AGEL, AmGam,
AGRM, the Committee for the Unsecured Creditors of AmGam, the
Committee for the Unsecured Creditors of AGRM and IGT, the "AGEL
Group"), on the other hand.
WITNESSETH:
WHEREAS, AGEL is the record owner of the Gold Coast Casino Barge,
Coast Guard Registration No.995650 (the "Barge");
WHEREAS, AGEL and the remaining members of the AGEL Group desire to
sell the Barge to Purchaser, and Purchaser desires to purchase the
Barge, upon the terms and conditions described herein;
WHEREAS, the AGEL Group and the President Group desire to settle
certain litigation and other claims between them and their Affiliates
(as defined below);
WHEREAS, the AGEL Group and the President Group desire to obtain
approval of this Agreement by the United States Bankruptcy Court for
the Southern District of Mississippi prior to the effective date of
the transfer of the Barge.
WHEREAS, Shamrock's execution of this Agreement and the other
Transaction Documents (as defined below) including, without
limitation, the release of its liens upon and security interest in the
Barge, is subject to the approval of the New York Bankruptcy Court
(defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto hereby
agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following
designated meanings:
Affiliate means, with respect to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under a
common control with such first Person, where the term "control"
(including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or
otherwise. In the case of Purchaser, the term Affiliate includes,
without limitation, President Casinos, Inc., President Riverboat
Casinos, Inc. and President Mississippi Charter Corporation.
Xxxxxxx means Xxxxxxx X. Xxxxxxx, in his capacity as duly
appointed chapter 11 trustee of the substantially consolidated
bankruptcy estates of The Xxxxxxx Funding Group, Inc., Xxxxxxx
Receivables Corporation, Xxxxxxx Receivables Corporation II, Xxxxxxx
Management & Development Corporation, et al.
Business Day means any day other than a Saturday, a Sunday or a
day on which commercial banks in the State of Mississippi are
authorized or required by law to close.
Charter means the lease of the Barge dated February 17,1995
between American Gaming & Entertainment, Ltd., as Owner, and President
Mississippi Charter Corporation, as Charterer, and all amendments
thereto.
Closing Date means the Business Day following the date that all
of the following have been entered and become final or if appealed, no
stay pending appeal has been granted as of the time of closing or, if
a stay has been granted, it has been dissolved: (a) the Order; (b) the
Mississippi Bankruptcy Court's order represented by Exhibit L hereto;
and (c) the New York Bankruptcy Court's orders granting the motion of
Shamrock attached hereto as part of Exhibit I.
Mississippi Bankruptcy Court means the United States Bankruptcy
Court for the Southern District of Mississippi, Biloxi Division.
New York Bankruptcy Court means the United States Bankruptcy
Court for the Northern District of New York.
Order means the order of the Mississippi Bankruptcy Court
authorizing the transfer of the Barge to the Purchaser free and clear
of all liens, claims and interests and approving the Transaction
Documents, substantially in the form attached hereto as part of
Exhibit H.
Payment Agent means Rimmer, Rawlings, XxxXxxxx & Xxxxxxx, 000 X.
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
Person means any natural person, firm, partnership, association,
corporation, company, trust, entity, public body or government.
Slot Machines means the 616 slot machines manufactured by IGT,
sold by IGT to AmGam in 1994, and then acquired by President
Mississippi Charter Corporation by order of the Bankruptcy Court dated
September 21, 1995.
Transaction Document means any of this Agreement, any Exhibit to
this Agreement, or any other document executed and delivered by a
member of the AGEL Group and the President Group, or any of them, in
connection with the consummation of the transactions contemplated
hereby.
ARTICLE 2
PURCHASE AND SALE OF THE BARGE AND SLOT MACHINES
2.1 Sale of the Barge. Subject to the terms and conditions of
this Agreement, AGEL and the other members of the AGEL Group agree to
sell, convey, assign and transfer all of their right, title and
interest, if any, to Purchaser, and Purchaser agrees to purchase and
accept, the Barge, including all furniture, fixtures and equipment
located on the Barge and belonging to AGEL or any other member of the
AGEL Group on the date hereof. On the Closing Date, the parties shall
execute and deliver a Xxxx of Sale in the form attached hereto as
Exhibit A. Purchaser is purchasing the Barge on an "as is, where is"
"with all faults" basis, with no warranties as to the physical
condition of the Barge or any of its contents.
2.2 Purchase Price for the Barge. The purchase price (the
"Purchase Price") for the Barge is SIX MILLION, EIGHT HUNDRED, TWENTY-
SEVEN THOUSAND FIVE HUNDRED AND NO/1OO DOLLARS ($6,827,500.00)
(subject to reduction as set forth in paragraph 2.2(b) below), which
shall be paid by Purchaser as follows:
(a) On the Closing Date, the President Group will cause
Purchaser to deliver to the Payment Agent, by wire transfer or
certified check, the amount of ONE MILLION AND NO/1OO DOLLARS
($1,000,000.00).
(b) On the Closing Date, the President Group will cause
Purchaser to deliver to the Payment Agent a promissory note, in the
form attached hereto as Exhibit B (the "Promissory Note"), in the
amount of FIVE MILLION EIGHT HUNDRED, TWENTY-SEVEN THOUSAND FIVE
HUNDRED AND NO/100 DOLLARS ($5,827,500.00). The amount of the
Promissory Note shall be reduced on the Closing Date, on a dollar-for-
dollar basis, by the amount of any Charter payments made by Purchaser
for any Charter period after July 31, 1999.
It is understood and agreed by the parties hereto that the Purchase
Price was calculated as the sum of $5,000,000, plus all payments under
the Charter that have not been made as of the Closing.
2.3 Security and collateral. As security for its obligations
under the Promissory Note, Purchaser shall deliver to the AGEL Group
on the Closing Date the following documents:
(a) A security agreement, in the form attached hereto as
Exhibit C;
(b) A preferred ship mortgage, in the form attached hereto as
Exhibit D; and
(c) A guaranty agreement, in the form attached hereto as
Exhibit E, pursuant to which President Casinos, Inc. will guarantee
the obligations of The President Riverboat Casino-Mississippi, Inc.
under the Promissory Note.
2.4 Termination of the Charter. On the Closing Date, the
Charter will be canceled, without any further acts of the parties. On
the Closing Date, the President Group shall deliver to the AGEL Group
an agreement, in the form attached hereto as Exhibit F, pursuant to
which President Mississippi Charter Corporation consents to such
cancellation.
2.5 Settlement of the sale price of the Slot Machines. On or
betore the Closing Date, the AGEL Group (other than Shamrock, AGRM and
the Committee for the Unsecured Creditors of AGRM, which claim no
interest in the Slot Machines) shall execute a Cross Receipt, in the
form attached hereto as Exhibit G, pursuant to which the AGEL Group
(other than Shamrock, AGRM and the Committee for the Unsecured
Creditors of AGRM, which claian no interest in the Slot Machines) will
certify that Purchaser has satisfied all of the obligations of
Purchaser and its Affiliates with respect to the purchase of the Slot
Machines.
2.6 Final payment for the Slot Machines. Upon execution and
delivery of the Cross Receipt, Purchaser will deliver to the Payment
Agent, by wire transfer or certified check, the amount of NINE HUNDRED
THOUSAND DOLLARS ($900,000.00), representing the final installment
payment of the purchase price of the Slot Machines.
ARTICLE 3
ACTIONS TO BE TAKEN UPON EXECUTION OF THIS AGREEMENT
3.1 Execution of pleadings to be filed in the Bankruptcy
Courts and other filings. Upon execution of this Agreement, the
parties will execute and deliver the following documents, each of
which will be transmitted as promptly as practicable for filing in the
Bankruptcy Courts designated and at the Securities and Exchange
Commission:
(a) Each party will execute and deliver the Joint Motion to
approve Sale Agreement for filing in the Mississippi Bankruptcy Court,
substantially in the form attached hereto as Exhibit H;
(b) Shamrock will execute and deliver a motion, substantially
in the form attached hereto as part of Exhibit I, for approval of
Shamrock's agreement to the transactions set forth herein and for
approval of Shamrock's execution of the Sale Agreement and the other
Transaction Documents, and will deliver such motion for filing in the
New York Bankruptcy Court;
(c) Each party will execute and deliver the Joint Motion to
expedite approval of Sale Agreement for filing in the Mississippi
Bankruptcy Court, in the form attached hereto as Exhibit J;
(d) IGT will execute and deliver the Withdrawal of Objection
to Approval of Settlement originally filed by IGT in the Adversary
Proceeding No.97-0868 entitled "AmGam Associates, a Ms. General
Partnership d/b/a Gold Shore Casino and Official Unsecured Creditors'
Committee v. President Mississippi Charter Corporation and President
Riverboat Casino-Mississippi, Inc.," for filing in the Mississippi
Bankruptcy Court in the form attached hereto as Exhibit K;
(e) AGEL will file with the Securities and Exchange
Commission an information statement with respect to the transactions
contemplated by this Agreement.
3.2 Filing of order to approve Slot Machine settlement. AGEL,
the President Group, AmGam, the Committee for the Unsecured Creditors
of AmGam and IGT will also immediately submit to the Mississippi
Bankruptcy Court an Order Approving Settlement and Judgment of
Dismissal with Prejudice in Adversary Proceeding No.97-0868, entitled
"AmGam Associates, a Ms. General Partnership d/b/a Gold Shore Casino
and Official Unsecured Creditors' Committee v. President Mississippi
Charter Corporation and President Riverboat Casino-Mississippi, Inc.,"
in the form attached hereto as Exhibit L.
3.3 Best efforts. Each party agrees to go forward in good
faith and use its reasonable best efforts to obtain the approval of
the Mississippi Bankruptcy Court to the pleadings represented by
Exhibits H, J and K as expeditiously as possible and to obtain the
approval of the New York Bankruptcy Court of the Shamrock pleading
represented by part of Exhibit I as expeditiously as possible.
ARTICLE 4
THE CLOSING
4.1 The Closing. The closing of the transactions provided for
in this Agreement (the "Closing") shall be at 10:00 a.m. Central
Daylight Time on the Closing Date. The Closing will be held at the
offices of Xxxxxx Xxxxxx, L.L.P., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxx.
4.2 Actions to be taken at the Closing. At the Closing, the
parties shall deliver to each other the Transaction Documents provided
for in Article 2 hereof In addition, the following Transaction
Documents shall be delivered and, as to the documents specified in
paragraphs (e), (f) and (a), below, would be recorded or filed, as
applicable, by the Purchaser in the order specified:
(a) Shamrock shall deliver to Purchaser two Satisfactions of
Preferred Ship Mortgage, in the form attached hereto as Exhibit M,
which shall be immediately transmitted for filing with the United
States Coast Guard as well as such other documents (including, without
limitation, appropriate UCC termination statements) as Purchaser may
reasonably require to reflect AGEL's transfer of tide to the Barge
free of Shamrock's liens;
(b) Purchaser shall deliver to the AGEL Group certified
resolutions adopted by the Boards of Directors of President Casinos,
Inc., President Mississippi Charter Corporation and President
Riverboat Casino-Mississippi, Inc. in the forms attached hereto as
Exhibits N, O and P respectively;
(c) AGEL shall deliver to Purchaser a certificate, dated as
of the Closing Date, in the form attached hereto as Exhibit Q;
(d) Purchaser shall deliver to the AGEL Group a certificate,
dated as of the Closing Date, in the form attached hereto as Exhibit
R;
(e) Purchaser shall execute Uniform Commercial Code forms 1
("UCC 1"), in the form attached hereto as Exhibit S, which shall be
immediately transmitted for filing in the appropriate jurisdictions,
as well as such other documents as the AGEL Group may reasonably
require to perfect the security interest granted to AGEL by Purchaser;
(f) AGEL and Purchaser shall execute Coast Guard Form 1258,
in the form attached hereto as Exhibit T1 which shall be immediately
transmitted for filing in the records of the United States Coast
Guard;
(g) All of the parties hereto shall execute and deliver the
Agreement of Compromise, Settlement and Release, in the form attached
hereto as Exhibit U;
(h) AGEL and Purchaser shall execute and deliver a letter, in
the form attached hereto as Exhibit V, requesting that the arbitration
proceeding between them currently being conducted by the American
Arbitration Association, be dismissed, which letter shall be
immediately transmitted to the appropriate office of the American
Arbitration Association;
(i) All members of the AGEL Group except Shamrock shall
execute and deliver the Joint Motion and Order to Dismiss President
Mississippi Charter Corporation and President Riverboat Casino-
Mississippi, Inc. as defendants in Adversary Proceeding No.97-01010
entitled "International Gaming Technology v. AmGam Associates, a
Mississippi General Partnership d/b/a Gold Shore Casino, American
Gaming & Entertainment, Limited d/b/a Gold Shore Casino, American
Gaming of Biloxi, Inc., Gamma of Mississippi, Inc., American Gaming &
Resorts of Mississippi, Inc., President Mississippi Charter
Corporation and President Riverboat Casino-Mississippi, Inc.," in the
form attached hereto as Exhibit W, which Joint Motion shall be
transmitted immediately to the Mississippi Bankruptcy Court for
filing;
(j) IGT shall execute and deliver a Motion to Dismiss the
Adversary Proceeding No.98-05095 entitled "International Gaming
Technology v. President Casinos,
Inc., President Mississippi Charter Corporation, President Riverboat
Casino-Mississippi, Inc., and President Riverboat Casino, Inc.," in
the form attached hereto as Exhibit X, which Motion to Dismiss shall
be transmitted immediately to the Mississippi Bankruptcy Court for
filing;
(k) The members of the AGEL Group that are parties to the
litigation described in this paragraph shall execute and deliver a
Motion to Dismiss President Mississippi Charter Corporation, President
Riverboat Casinos, Inc., and The President Riverboat Casino-
Mississippi, Inc. as defendants in the Adversary Proceeding Nos.95-
1001 and 95-1002 entitled "The Official Committee of Unsecured
Creditors of AmGam Associates and the Official Committee of Unsecured
Creditors of American Gaming and Resorts of Mississippi, LTD V.
American Gaming & Entertainment, Ltd, Xxxxxxx Holdings Inc., Xxxxxxx
Management and Development Co., President Mississippi Charter
Corporation; President Riverboat Casinos, Inc., and President
Riverboat Casino-Mississippi, Inc.," in the form attached hereto as
Exhibit Y, which Motion to Dismiss shall be immediately transmitted to
the Bankruptcy Court for filing;
(l) Purchaser and its Affiliate shall execute and deliver a
Motion to Dismiss the appeal of Purchaser and President Mississippi
Charter Corporation from an order rendered by the Mississippi
Bankruptcy Court in Adversary Proceedings Nos. 95-1001 and 95-1002,
filed by President Mississippi Charter Corporation and President
Riverboat Casino-Mississippi, Inc. in the United States District Court
for the Southern District of Mississippi (1:99cv154 RG and 1:99cv153
GR), in the form attached hereto as Exhibit Z, which Motion to Dismiss
shall be transmitted immediately to the United States District Court
for the Southern District of Mississippi for filing; and
(m) Purchaser and AGEL shall execute and deliver a Joint
Motion withdrawing Purchaser's pending motion in the Mississippi
Bankruptcy Court styled "Motion for a Declaration that Contractual
Right of First Refusal in Post Petition Contract is Enforceable" and
AGEL's objection to such motion, in the form attached hereto as
Exhibit AA.
In addition, Purchaser and the members of the AGEL Group shall
execute and deliver such other documents, certificates and instruments
that are required by the Mississippi Bankruptcy Court or the New York
Bankruptcy Court or that are otherwise necessary to consummate the
transactions contemplated hereby.
4.3 Best efforts. Each party agrees to go forward in good
faith and use its reasonable best efforts to obtain the approval of
the Mississippi Bankruptcy Court and the United States District Court
for the Southern District of Mississippi of the pleadings contemplated
by Exhibits W, X, Y, Z and AA as expeditiously as possible.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PRESIDENT GROUP
To induce the AGEL Group to enter into this Agreement and the
transactions contemplated hereby, each member of the President Group
represents and warrants to the AGEL Group as of the date hereof and as
of the Closing Date as follows:
5.1 Organization of Purchaser. Each member of the President
Group is a corporation duly formed, validly existing and in good
standing under the laws of the state of its incorporation and has full
power and authority to own and operate its business as it is now being
conducted, and to own and use its properties and assets and, upon
receipt of approval by the Mississippi Gaming Commission, Purchaser
will have full power and authority to acquire, own and use the Barge.
5.2 Authorization, Execution and Delivery. Each member of the
President Group has the power and authority to enter into this
Agreement and the Transaction Documents to which it is or will be a
party and to carry out the transactions contemplated hereby and
thereby. The execution, delivery and performance by each member of the
President Group of this Agreement and the Transaction Documents to
which each member of the President Group is or will be a party and the
consummation of the transactions contemplated hereby and thereby have
been duly authorized by all requisite action by such member. This
Agreement has been duly executed and delivered by each member of the
President Group and, upon due execution and delivery by each such
member (to the extent it is a party thereto) each Transaction Document
will constitute, the valid and binding obligation of such member,
enforceable against such member in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, or other laws affecting creditors' rights
generally and by general equitable principles (whether arising in a
proceeding in equity or otherwise) and, with respect to the Preferred
Ship Mortgage attached hereto as Exhibit D, except to the extent that
the Barge is not a vessel under the law governing creation, perfection
and enforceabillty of such mortgage.
5.3 No Conflict or Violation. Neither the execution and
delivery of this Agreement and the Transaction Documents to which each
member of the President Group is or will be a party nor the
consummation of the transactions contemplated hereby and thereby will
(i) result in any conflict with or breach or violation of or default
under the Articles of Incorporation or Bylaws of any member of the
President Group, (ii) conflict with or result in the breach or
violation of any law, regulation, writ, injunction or decree of any
court or governmental instrumentality applicable to any member of the
President Group, or (iii) constitute a breach of any agreement to
which any member of the President Group is a party or by which any
member of the President Group is bound.
5.4 Litigation, et cetera. There are no actions, suits or
proceedings at law or equity, pending or to the knowledge of the
President Group, threatened against, affecting or able to affect the
President Group's ability to consummate the transactions contemplated
hereby, at law or in equity, or before by any governmental agency or
instrumentality or pending before any arbitrator of any kind
5.5 Lien and Security Interest on Barge and all other
collateral. Upon entry of the Order and after the Closing and proper
filing of the Transaction Documents with the appropriate authorities,
AGEL will hold a lien and security interest on the Barge and all other
collateral identified in the Security Agreement attached hereto as
Exhibit C that is, to the same extent that the Order effects AGEL's
transfer of title to Purchaser free and clear of all other liens,
claims, encumbrances and interests, first in priority over any and all
other liens or security interests, and in any event first in priority
over any and all liens or security interests created by the President
Group or caused by actions or inaction of the President Group, except
to the extent that the Barge would not be considered a vessel under
the law governing creation, perfection and enforceability of the
Mortgage attached hereto as Exhibit D.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF AGEL
To induce Purchaser to enter into this Agreement and the
transactions contemplated hereby, AGEL represents and warrants to
Purchaser as of the date hereof and as of the Closing Date as follows:
6.1 Authorization, Execution and Delivery. AGEL has the power
and authority to enter into this Agreement and the Transaction
Documents to which it is or will be a party and to carry out the
transactions contemplated hereby and thereby. Subject to the written
consents of Shamrock and Xxxxxxx constituting the holders of a
majority of the shares of outstanding voting stock of AGEL and subject
to the approval of the New York Bankruptcy court of such consents, (a)
the execution, delivery and performance by AGEL of this Agreement and
the Transaction Documents to which AGEL is or will be a party and the
consummation of the transactions contemplated hereby and thereby have
been duly authorized by all requisite action by AGEL, and (b) this
Agreement has been duly executed and delivered by AGEL and
constitutes, and upon due execution and delivery by AGEL to the extent
a party thereto each other Transaction Document will constitute, the
valid and binding obligation of AGEL, enforceable against AGEL in
accordance with their respective terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium, or other laws
affecting creditors' rights generally and by general equitable
principles (whether arising in a proceeding in equity or otherwise).
6.2 No Conflict or Violation. Neither the execution and delivery
of this Agreement and the Transaction Documents to which AGEL is or
will be a party nor the consummation of the transactions contemplated
hereby and thereby will (i) result in any conflict with or breach or
violation of or default under the Articles of Incorporation or Bylaws
of AGEL, (ii) conflict with or result in the breach or violation of
any law, regulation, writ, injunction or decree of any court or
governmental instrumentality applicable to AGEL, or (Ill) constitute a
breach of any agreement to which AGEL is a party or by which AGEL is
bound.
6.3 Litigation, et cetera. Except for the pending avoidance
action syled Official Committee of Unsecured Creditors v. American
Gaming and Entertainment, Ltd., et al., Adv. Proc. No.95-1001 SEG and
Adv. Proc. No.95-1002 SEG, there are no actions, suits or
proceedings at law or equity, pending or to the knowledge of AGEL,
threatened against, affecting or able to affect AGEL's ability to
consummate the transactions contemplated hereby, at law or in equity,
or before by any governmental agency or instrumentality or pending
before any arbitrator of any kind.
6.4 Consents and Approvals. Other than the approval of the
New York Bankruptcy Court of the written consents of Shamrock and
Xxxxxxx and the filing of a definitive information statement with the
United States Securities and Exchange Commission referred to in
Section 3.1(e) above, no consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required to be
obtained or made by or with respect to AGEL in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
6.5 Title to Barge. On the Closing Date, AGEL will transfer
the Barge, free and clear of all liens and encumbrances pursuant to
the Order except for any liens created by the President Group or
caused to be created by actions or inaction of the President Group. As
soon as practicable after the date hereof, the AGEL Group will serve
and deliver notice of the filing of the Joint Motion attached hereto
as Exhibit H to all parties to whom such notice is required to be
delivered in order to make the foregoing representation and warranty
accurate as of the Closing Date. Subject to the provisions of Section
9.9 hereof, upon the execution and delivery of the Xxxx of Sale
attached hereto as Exhibit A, Purchaser will have valid and
enforceable tide to the Barge, free and clear of all liens or
encumbrances except for the liens created hereunder and for any liens
created by the President Group or caused to be created by actions or
inaction of the President Group. AGEL has no actual knowledge of any
unrecorded or undisclosed legal or equitable interest in the Barge
owned or claimed by any Person other than AGEL, other than those
claims made in the bankruptcy cases of AmGam and AGRM, which claims
and/or encumbrances will be transferred from the Barge to the proceeds
of the sale by the Order.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 Conditions to each party's obligations to close. The
respective obligations of the AGEL Group and Purchaser to consummate
at the Closing the transactions contemplated by this Agreement are
subject to satisfaction of the following conditions as of the Closing:
(a) The execution of this Agreement and the consummation of
the transactions contemplated herein shall have been approved by the
Mississippi Bankruptcy Court pursuant to its Order which has become
final and non-appealable and has not been stayed.
(b) The execution of this Agreement and the consummation of
the transactions contemplated herein by Shamrock shall have been
approved by the New York Bankruptcy Court pursuant to its Order which
has become final and non-appealable and has not been stayed.
7.2 The President Group's obligations to close. The
obligations of the President Group to close hereunder are subject to
the satisfaction (or waiver by the President Group) of the following
conditions:
(a) The representations and warranties of AGEL contained
herein shall be true and correction in all material respects as of the
date hereof and on and as of the Closing Date as though made on and as
of the Closing Date.
0,) Each member of the AGEL Group shall have performed and
complied with all covenants, agreements and conditions required to be
performed or complied with by it pursuant to this Agreement prior to
or as of the Closing.
(c) Purchaser shall have received approval of the
transactions contemplated by this Agreement from the Mississippi
Gaming Commission.
(d) The transactions contemplated by Exhibit L hereto shall
be consummated on or before the Closing Date.
(e) The Closing shall have occurred on or before August 13,
1999; unless the orders described in Section 8.1(b) below are entered
after July 26, 1999 but on or before August 16, 1999 as set forth in
Section 8.1(b), in which case the Closing shall have occurred on or
before the Closing Date, as defined in this Sale Agreement.
7.3 The AGEL Group's obligations to close. The obligations of
the AGEL Group to close hereunder are subject to the satisfaction (or
waiver by the AGEL Group) of the following conditions:
(a) The representations and warranties of the President Group
contained herein shall be true and correct in all material respects as
of the date hereof and on and as of the Closing Date as though made on
and as of the Closing Date.
(b) Each member of the President Group shall have performed
and complied with all covenants, agreements and conditions required to
be performed or complied with by it pursuant to this Agreement prior
to or as of the Closing.
(c) The Closing shall have occurred on or before September
30, 1999.
ARTICLE 8
TERMINATION
8.1 Termination. This Agreement and the transactions at the
Closing contemplated hereby may be terminated:
(a) by the mutual agreement of the AGEL Group and Purchaser;
(b) on or before the Closing Date, by Purchaser if there have
not been entered on or before July 26, 1999 (or, if the motions
included in Exhibit I are presented for hearing on July 22, 1999 but
not approved until August 12, 1999, then on or before August 16, 1999)
orders by both the Mississippi Bankruptcy Court and the New York
Bankruptcy Court approving the execution of this Agreement and the
consummation of the transactions contemplated herein; or
(c) on or after September 30, 1999 by the AGEL Group if the
Closing has not occurred by such date, and there has been no breach of
a covenant or condition by the AGEL Group;
(d) on or after September 30, 1999 by the President Group if
the Closing has not occurred by such date, and there has been no
breach of a covenant or condition by the President Group;
provided, that no party may terminate this Agreement pursuant to
8.l(b), 8.1(c) or 8.1(d) if the failure of any condition in Sections
7.1, 7.2 or 7.3 to be satisfied results from the breach by such party
or any covenant, agreement, representation or warranty of such party
contained in this Agreement.
8.2 Effect of Temination. If this Agreement is terminated
under Section 8.1, the transactions at the Closing contemplated hereby
shall be terminated without further action by any xxxxx, and upon such
termination:
(a) If such termination occurs as a result of the President
Group's breach of any of its individual or collective obligations (i)
described in Sections 3.1, 3.2 or 3.3 of this Agreement or (ii)
described in Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 4.2 or 4.3 of this
Agreement after the conditions to Closing by the President Group
described in Sections 7.1 and 7.2 of this Agreement have been
satisfied, then the President Group shall have no rights or claims to
extend the current term of the Charter or to purchase the Barge under
any right of first refusal, and the President Group shall, within 30
days of such termination, execute and file such papers as are
necessary to withdraw and dismiss the arbitration proceeding referred
to in Section 4.2(h), the appeals referred to in Section 4.2(1) and
the right-of-first-refusal motion referred to in Section 4.2(m) of
this Agreement.
(b) If such termination occurs as a result of (i) the AGEL
Group's breach of any of its individual or collective obligations (A)
described in Sections 3.1, 3.2 or 3.3 of this Agreement or (B)
described in Sections 2.1, 2.5, 4.2, or 4.3 of this Agreement after
the conditions to Closing by the AGEL Group described in Sections 7.1
and 7.3 of this Agreement have been satisfied, or (ii) Xxxxxxx'x
failure to (A) go forward in good faith and use his reasonable best
efforts to obtain the approval of the New York Bankruptcy Court to the
motion of Xxxxxxx included as part of Exhibit I or (B) following
approval of such motion, to execute the appropriate consents to
authorize AGEL to consummate the transaction contemplated by this
Agreement or to execute Exhibit U hereto, then President Mississippi
Charter
Corporation ("President Charter") shall have the right (but only by
notice delivered to the AGEL Group), exercisable on or before October
30, 1999, to an option for a two-year extension of the current term of
the Charter and, only if such two-year option is exercised and there
exists no default by President Charter under the Charter, for three
successive one-year extensions thereafter, each exercisable upon six
months' notice to the AGEL Group, all at reasonable monthly rental
amounts, to be established, along with other necessary extension
terms, through arbitration in accordance with the rules of the
American Arbitration Association if AGEL and President Charter are
unable mutually to agree upon such rental amounts and other terms
within 30 days of such termination.
For the purposes of this Section 8.2, the term "breach" is intended to
and shall mean the willful failure or refusal in a material way of a
party to this Agreement to perform its obligations referred to above
in this Section 8.2. In addition, nothing contained herein shall
relieve any party from liability for any breach of any covenant or
agreement in this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 Assignment. This Agreement and any of the rights or
obligations hereunder may not be assigned by Purchaser except to an
Affiliate of Purchaser, in which event Purchaser shall not be relieved
of any of its obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. It is
understood that, if the First Amended Joint Plan of Liquidation for
AmGam Associates and American Gaming and Resorts of Mississippi, Inc.,
as filed with the Mississippi Bankruptcy Court on May 24, 1999, as
such plan may be amended from time to time, is approved by the
Mississippi Bankruptcy Court and Shamrock's execution of the plan and
agreement to its terms is approved by the New York Bankruptcy Court,
then, all of AGEL's rights hereunder and under all Transaction
Documents including, without limitation, Exhibits B, C, D and B
hereto, shall be assigned by AGEL to the liquidating trustee created
under such plan.
9.2 Notices. Unless otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed
to have been sufficiently given or served for all purposes: (a) three
(3) days after such notice is deposited in the mail, if sent by
registered or certified mail (return receipt requested), (b) when
delivered, if delivered personally or if sent by overnight mail or
overnight courier or if sent in any manner other than as described in
the preceding clause 9.2(a) or in the following clause 9.2(c), or (c)
when transmitted, if sent by facsimile if a confirmation of
transmission is produced by the sending machine (and a copy of each
facsimile promptly shall be sent by ordinary mail), in each case to
the parties at the following addresses or facsimile numbers, or at
such other address or facsimile numbers as shall be specified by like
notice:
If to the AGEL Group, to:
Xxxxxx X. Xxxx, Esq.
Xxxx & Xxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxx., Xxx. 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Shamrock Holdings Group, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
X. Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxx, Esq.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxxx, Esq.
Rimmer, Rawlings, XxxXxxxx
& Xxxxxxx
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxxx, Esq.
Hefler, Draper, Hayden, Horn, L.L.C.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xx. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser:
The President Riverboat Casino-Mississippi, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (314)
Attention: Xxxxx X. Xxxxxxx
with copies to:
Xxxxx X. O'Xxxx
Xxxxxx Xxxxxx, L.L.P.
Xxxxx 000, XxxXxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx, 0xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9.3 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF MISSISSIPPI,
EXCLUDING PROVISIONS OF SUCH LAW REFERRING SUCH MATTERS TO THE LAW OF
ANOTHER JURISDICTION. The parties hereto mutually consent to the
jurisdiction of the Mississippi Bankruptcy Court and acknowledge that
the Mississippi Bankruptcy Court shall constitute the proper and
convenient forum for the resolution of any actions between the parties
hereto concerning the subject matter hereof, and agree, except for
paragraph 8.2(b), that the Mississippi Bankruptcy Court shall be the
sole forum for the resolutions of any actions between the parties
hereto concerning the subject matter hereof.
9.4 Entire Agreement; Amendments and Waivers. This Agreement,
together with all Exhibits hereto, constitutes the entire Agreement
between the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written,
of the parties, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter
hereof except as set forth specifically herein. No amendment,
supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless
expressly agreed to in writing by the affected party.
9.5 Multiple Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall Constitute one and the same
instrument. Telecopy signatures shall be deemed valid and binding to
the same extent as the original.
9.6 Invalidity. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
9.7 Headings; References. The headings of the several
Articles and Sections herein are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Any reference herein to an Article
or Section shall be deemed to refer to the applicable Article or
Section of this Agreement unless otherwise expressly stated herein.
Any reference to an Exhibit shall be deemed to refer to the applicable
Exhibit attached hereto, all such Exhibits being incorporated herein
and made a part hereof by this reference.
9.8 No Third-Party Beneficiaries. Except as set forth in
Section 9.1 hereof, this Agreement is solely for the benefit of the
parties hereto, their respective successors and assigns permitted
under this Agreement, and no provisions of this Agreement shall be
deemed to confer upon any other Persons any remedy, claim, liability,
reimbursement, cause of action or other right.
9.9 No Merger; Survival. The representations, warranties and
agreements contained in or made pursuant to this Agreement shall not
merge, be extinguished or otherwise affected by the Closing or the
delivery and execution of the Transaction Documents and all of such
representations, warranties and agreements shall survive the Closing
and continue for a period prescribed by applicable statutes of
limitations. In response to any challenge by anyone to the tide of the
Barge acquired by it pursuant to this Agreement, Purchaser agrees (a)
to immediately provide notice of such challenge to the AGEL Group,
which may, in its sole discretion, elect to cure the claimed defect in
Purchaser's tide, and (b) vigorously and diligently to assert and
pursue to final order all claims and defenses available to it under
the Order before claiming any breach of title warranty hereunder by
AGEL.
9.10 Attorneys' Fees and Costs. If it becomes necessary for
any party hereto to file any action to enforce this Agreement or any
provision contained herein, the party prevailing in such
action shall be entitled to recover from the non-prevailing party
reasonable attorneys' fees and court costs incurred in such action.
IN WITNESS WHEREOF, this Agreement has been duly executed to be
effective as of the date first above written.
THE PRESIDENT RIVERBOAT CASINO-
MISSISSIPPI, INC.
By: XXXXX X. XXXXXXX
_______________________________
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial
Officer
PRESIDENT CASINOS, INC.
By: XXXXX X. XXXXXXX
_______________________________
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial
Officer
PRESIDENT MISSISSIPPI CHARTER
CORPORATION
By: XXXXX X. XXXXXXX
_______________________________
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial
Officer
AMERICAN GAMING & ENTERTAINMENT, LTD.
By: J. XXXXXXX XXXXXXXXXX
_______________________________
J. Xxxxxxx Xxxxxxxxxx, President
& CEO
AMGAM ASSOCIATES
By: J. XXXXXXX XXXXXXXXXX
______________________________
J. Xxxxxxx Xxxxxxxxxx, Management
Committee
AMERICAN GAMING & RESORTS OF
MISSISSIPPI, INC.
By: J. XXXXXXX XXXXXXXXXX
______________________________
J. Xxxxxxx Xxxxxxxxxx,
COMMITTEE FOR THE UNSECURED
CREDITORS OF AMGAM
By: X. XXXXXX XXXXXXX
______________________________
X. Xxxxxx Xxxxxxx
COMMITTEE FOR THE UNSECURED
CREDITORS OF AGRM
By: XXXXXXX X. XXXX
______________________________
Xxxxxxx X. Xxxx
IGT INTERNATIONAL
By: XXXXXXX X. XXXXXX
______________________________
Xxxxxxx X. Xxxxxx
Its attorney in fact
* SHAMROCK HOLDINGS GROUP, INC.
By: XXXXXXX X. XXXXXXX
______________________________
* Subject to approval of the United
States Bankruptcy Court of the
Northern District Of New York
