EXHIBIT 10.2
AGREEMENT ALLOCATING AND DISTRIBUTING PROCEEDS
FROM THE SALE OF ASSETS
This Agreement Allocating and Distributing Proceeds from the Sale of
Assets ("Agreement") is made as of April 20, 2004 among J. Xxxxxx Xxxxxxxx
Associates, Inc., a Pennsylvania corporation ("JECA"), Xxxx X. Xxxxxxxxx
("Xxxxxxxxx"), Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxx X. Xxxxxxxx
("Xxxxxxxx").
RECITALS
A. JECA is the owner of the sole Class B Unit of President Xxxxxxxxxx
Hotel, L.L.C. ("PBHLLC").
B. PBHLLC is one subject of a pending Motion for Approval of Agreement
between Debtors and Bondholder Representatives Regarding Process for the
Sale of Assets (the "Motion") filed on March 11, 2004 as part of the
bankruptcy proceedings involving President Casinos, Inc. and certain of its
subsidiaries ("Debtors") in the United States Bankruptcy Court for the
Eastern District of Missouri.
C. The Motion, in form attached hereto as Exhibit 1, seeks court approval
of an agreement among certain creditors and other stakeholders to market for
sale certain of the assets of the Debtors and PBHLLC (the "Assets").
D. In the event that the process of marketing for sale the Assets results
in any sales, then JECA possesses certain contingent rights to receive
certain portions of the proceeds as outlined on the "Term Sheet" (as defined
in the Motion) attached as Exhibit A to the Motion.
E. JECA acknowledges in advance the value of the efforts of Xxxxxxxxx,
Xxxxxxxx and Xxxxxxxx to the extent that JECA receives any such proceeds
and, in recognition of such efforts, intends to share such proceeds with
Xxxxxxxxx, Wirginis and Xxxxxxxx as provided below.
Therefore, in consideration of the foregoing and the representatives and
covenants contained in this Agreement, the parties agree as follows:
1. The Proceeds received by JECA from the sale of the Assets shall be
allocated and distributed among the parties in the priorities and
percentages set forth in the following table:
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Proceeds JECA
Xxxxxxxxx Wirginis Xxxxxxxx
$1 to
$4,000,000 100% - - -
$4,000,001 to
$8,000,000 - 50% 50% -
$8,000,001 to
$10,000,000 50% 25% 25% -
$10,000,001 to
$16,000,000 47.5% 23.75% 23.75% 5%
In excess of
$16,000,000 50% 25% 25% -
JECA shall use its best effort to effect distribution of all payments due
Xxxxxxxxx, Wirginis and Xxxxxxxx immediately following receipt by JECA of
such proceeds; provided, however, that in no event shall such distribution
occur more than 21 days after such receipt by JECA.
2. JECA represents and warrants to Xxxxxxxxx, Wirginis and Xxxxxxxx as
follows:
(a) JECA is a corporation duly incorporated and validly existing under
Pennsylvania law, is in good standing under Pennsylvania law, and has
corporate power to carry on its business as now conducted.
(b) The execution, delivery and performance by JECA of this Agreement
are within JECA's corporate powers and have been duly authorized by all
necessary corporate action. This Agreement constitutes a valid and binding
agreement of JECA.
(c) The execution, delivery and performance by JECA of the Agreement
do not and will not (i) contravene or conflict with any law or regulation to
which JECA is subject; (ii) contravene or conflict with any jugdment, order
or decree binding upon JECA; or (iii) constitute a default, or give rise to
any right of termination, cancellation or acceleration of any right or
obligation of JECA.
(d) Upon default, JECA shall deliver to Xxxxxxxxx and Xxxxxxxx the
audited balance sheet of JECA and the related audited statements of income,
retained earnings and cash flows for the fiscal year ended February 28,
2004, together with the notes thereto ("2003 Financial Statements"). To
JECA's knowledge, the 2003 Financial Statements present fairly, in all
material respects and in conformity with generally accepted accounting
principles applicable to audited financial statements (and thus may not
contain all notes which are required to be prepared in accordance with
generally accepted accounting principles), the financial position, results
of operations, changes in financial position and cash flows of JECA as of
the date thereof or for the period set forth therein. There have been no
material adverse changes to JECA's financial condition (including no
material reduction in the sum of JECA's cash and accounts receivable) since
the date of the 2003 Financial Statements.
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(e) To JECA's knowledge after due inquiry, there are no material
liabilities of JECA other than liabilities: (i) not required under generally
accepted accounting principles applicable to audited financial statements to
be shown on the 2003 Financial Statements; or (ii) incurred in the ordinary
course of business since the date of the 2003 Financial Statements which,
when considered together with any corresponding asset resulting from the
event which gave rise to such liability, have not had and would not
reasonably be expected to have a material adverse effect in the financial
condition of JECA.
(f) Except as otherwise disclosed, JECA has good and marketable title
to its Class B Unit of PBHLLC, subordinate only to the senior security
interest of interest of Guaranty Business Credit Corporation, successor to
Fremont Financial Corporation, and free of any liens and encumbrances.
3. No amendment or waiver of any provision of this Agreement shall be
valid unless written and signed by all parties. No waiver by a party of any
default, misrepresentation, or breach of warranty or covenant shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant.
4. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, personal representatives, executors,
successors and assigns.
5. This Agreement shall be governed by and construed in accordance with
Pennsylvania law.
6. The Exhibits identified in this Agreement are incorporated herein by
this reference.
7. In the event of any litigation pertaining to this Agreement, the
prevailing party shall be reimbursed in full by the defaulting party for all
costs and expenses, including attorneys' fees, incurred by the prevailing
party in connection with such proceeding.
8. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereto, and supercedes any prior oral or
written understandings, agreements or representations by or between the
parties, including the Term.
9. Each party will execute such additional instruments and take such
additional action as may be reasonably requested by any other party to carry
out the intent and purposes of this Agreement.
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The parties have executed this Agreement as of the date first written
above.
J. XXXXXX XXXXXXXX ASSOCIATES, INC.
By:
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Chairman of the Board
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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