EXHIBIT 10.1
FIRST AMENDMENT TO CHARTER
This Amendment (the "Amendment"), amending the Charter dated as of February
17, 1995 (the "Charter") between American Gaming & Entertainment, Ltd.
("AGEL"), owner, and President Mississippi Charter Corporation ("Charterer"),
is made and entered into this 30th day of October, 1998, (effective as of
December 1, l997), by Charterer, on the one hand, and AGEL, as owner with the
concurrence of the following parties (hereinafter sometimes referred to
collectively as the "AmGam Group"), on the other hand: AmGam Associates, a
Mississippi partnership ("AmGam"), American Gaming & Resorts of Mississippi,
Inc., a Mississippi corporation ("AGRM"), the Official Committee of the
Unsecured Creditors of AmGam, the Official Committee of the Unsecured
Creditors of AGRM, AGEL and Shamrock Holdings, Inc. (formerly known as Xxxxxxx
Holdings Group, Inc.) ("Shamrock").
WHEREAS, pursuant to the Charter, Charterer chartered from AGEL the vessel
known as the Gold Coast Barge, U.S.O.C. No. 995650;
WHEREAS, Charterer desires to amend the Charter as hereinafter set forth;
and
WHEREAS, the parties have entered into a letter agreement dated October 22,
1997 setting forth the financial terms of this Amendment, agreeing to settle
certain litigation, and setting forth other understandings among the parties
(the "Term Sheet");
WHEREAS, this Term Sheet has been approved by the United States Bankruptcy
Court for the Northern District of New York and the United States Bankruptcy
Court for Southern District of Mississippi.
WHEREAS, the members of the AmGam Group have proposed to settle all disputes
among themselves pursuant to an agreement dated November 11, 1996 (the "Global
Settlement");
NOW THEREFORE, in consideration of the foregoing and of the representations,
warranties and covenants in this Amendment and in the Charter, and for other
good and valuable consideration set forth in the Term Sheet, the parties agree
that the Charter shall be amended to conform with provisions of the Term Sheet
as follows:
DEFINITIONS
Capitalized terms used herein and not otherwise defined or re-defined shall
have the meanings set forth in the Charter. The following terms, however,
shall be defined for purposes of this Amendment and for purposes of the
Charter provisions that survive this Amendment as follows:
1. The term "Owner" as used in this Charter shall refer to AGEL.
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2. The term "Charter" as used hereinbelow and in the Charter shall
hereinafter refer to the Charter, as it has been amended by this Amendment.
Any reference to the Charter in the Charter itself, whether directly or
through the use of words such as "herein," shall refer to the Charter as
amended by this Amendment.
3. The term "Closing Date" shall mean the date of execution of this
Amendment.
4. The term "Payee" shall refer to the law firm of Rimmer, Rawlings,
XxxXxxxx & Xxxxxxx, in its capacity as the escrow agent for the escrow account
of AmGam established pursuant to the Order of the Bankruptcy Court dated April
28, 1996 (as amended on August 1, 1996), or such other person or entity
designated by the Bankruptcy Court or designated to Charterer by the Owner in
writing.
I. CHARTER PERIOD
Section 2 of the Charter shall be amended by deleting the entire Section 2
and substituting, in lieu thereof, the following:
The amended charter period for the Vessel shall extend from December 1, 1997
until April 15, 2000, unless earlier terminated because the Vessel has been
sold to Charterer or a third party (the "Charter Period"). The date of the
expiration of the Charter Period shall be referred to herein as the "Charter
Expiration Date." Upon the Charter Expiration Date, unless the Vessel shall
have been purchased by Charterer pursuant to Section 15 of the Charter (as
amended by this Amendment), the Vessel shall be returned to the Owner in
accordance with the terms of Section 13 of the Charter.
II. CHARTER HIRE AND INITIAL PAYMENT
Section 3 of the Charter shall be amended by deleting the entire Section 3
and substituting, in lieu thereof, the following:
(a) On the Closing Date, Charterer shall pay the Payee the sum of One
Million, Five Hundred Twenty-Five Thousand Dollars ($1,525,000.00)
representing past due sums pursuant to the original charter and in addition
thereto, all monthly Charter Hire payments that have accrued since December 1,
l997, up until the Closing Date. In connection therewith, the parties shall
execute the Agreement of Release attached hereto as Exhibit A.
(b) The Charter Hire owed by Charterer under the Charter for each month of
the Charter Period shall be Two Hundred Fifteen Thousand Dollars
($215,000.00). The Charter Hire for any partial calendar month during the
Charter Period shall be equal to Two Hundred Fifteen Thousand Dollars
($215,000.00) multiplied by a fraction the numerator of which is the number of
Charter Period days in such partial month and the denominator of which is the
total number of days in such month. From and after the Closing date, the
Charter Hire for each month shall be paid prior to the tenth of the month.
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(c) From and after the Closing date, if the Charter Hire in any particular
month is not paid by the tenth calendar day of such month, then Charterer
shall pay to Payee a late fee of $21,500, together with the Charter Hire for
such month.
III. INSURANCE
(d) Subsection (a) of Section 5 of the Charter shall be amended to delete
Subsection 5(a) and to substitute the following language prior to the
"provided however":
(a) Charterer shall obtain and maintain during the Charter Period, at
Charterer's sole cost and expense, insurance in such amounts covering the
Vessel and all equipment aboard the Vessel against such risks as Owner shall
reasonably determine to be desirable to fully protect its economic interests
in the Vessel (which amounts shall in no event be less than $9,000,000,
provided that the value survey submitted to Charterer's underwriter supports
such value to the reasonable satisfaction of such underwriter), and shall
obtain and maintain during the Charter Period at Charterer's sole cost and
expense general liability and such other insurance policies with respect to
the Vessel and the operation to be conducted on the Vessel and at the Dockage
Site, and in such amounts, as Charterer shall reasonably determine to be
necessary or appropriate. In no event shall the amount of general liability
insurance be less than $12,000.00. Both the Owner and Charterer shall be
named as insureds with waiver of subrogation under the general liability,
policies (and such other policies as Charterer shall deem appropriate) and as
loss payees under all other insurance policies so obtained and maintained.
Charterer's responsibility for the cost of the insurance required to be
obtained and maintained under this Section 5 shall for the cost of the
insurance required to be obtained and maintained under this Section 5 shall
commence upon delivery of the Vessel to Charterer at the Delivery Site on the
Commencement Date.
IV. REPRESENTATIONS AND WARRANTIES
Section 6(b) of the Charter shall be amended to add a new paragraph (xi),
which shall read as follows:
(xi) Except as disclosed on Exhibit B to this Amendment, (A) Charterer is
not aware of nor has it received any notice, written or oral, by any
governmental agency or entity that an order or directive has been issued or
will be issued relating to any known condition or defect with respect to the
Vessel; (B) Charterer is unaware of any condition or defect that may result in
a claim for a breach of the representations and warranties of Owner under
Section 6(a) of the Charter, other that those items released pursuant to the
release attached hereto as Exhibit A; and (c) following the date hereof,
Charterer will disclose to Owner each and every notice, written. or oral, by
any governmental agency or entity advising that an order or directive has been
or will be issued relating to a breach of any representation and warranty
under Section 6(a) hereof.
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V. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 8(a) shall be amended to add the following clause at the end of the
sentence comprising Section 8(a) of the Charter, to read as follows:
"; provided, however, that Owner shall be responsible for any breach of the
representations and warranties of Owner under Section 6(a) of the Charter only
to the extent that such breach was not known to Charterer on the Closing Date.
Breaches of representations and warranties that were known to Charterer on or
before the Closing Date are waived and released to the fullest extent of the
law.
VI. REDELIVERY
The first sentence of Section 13(a) shall be deleted in its entirety, and
the following shall be substituted in lieu thereof:
(a) Subject to Charterer's exercise of the Purchase Option set forth in
Section 15 of the Charter (as amended by this Amendment), Owner shall cause
the Vessel (other than the Electrical Equipment, the Fire Pump and the
Transition Equipment) to be removed from the Dockage Site no later than ten
(10) business days after the Charter Expiration Date.
Section 13(b) shall be amended to read as follows:
Upon redelivery of the Vessel, the Owner may require that the Vessel be
surveyed by a qualified independent marine surveyor mutually acceptable to the
Owner and the Charterer. Charterer shall reimburse Owner for one-half of the
reasonable costs of the marine survey obtained pursuant to this Section 13(b)
up to a maximum reimbursement of Five Thousand ($5,000.00) Dollars. In
addition to Charterer's obligations pursuant to Sections 9 and 11 of the
Charter, which shall remain intact, Charterer shall be obligated to redeliver
the Vessel in the same condition that Charterer last used the Vessel in its
normal business operations.
A new section 13(c) shall be added as follows:
(c) On February 1, 2000 (assuming the Charter has not been terminated prior
thereto), Charterer shall establish an escrow account, and shall escrow up to
$500,000.00 of the Charter Hire due from February 1, 2000 until the end of the
Charter Period (the "Removal Escrow"), to fund Owner's share of the cost of
the removal of the Vessel at the termination of the Charter Period. The
Charterer shall fund its equal share of the Removal Escrow concurrently with
Owner. If the amounts held in the Removal Escrow are greater than the cost of
the removal of the Vessel under Section 13(a), then any excess shall be paid
to Owner and Charterer equally upon the removal of the Vessel in accordance
with Section 13(a).
A new Section 13(d) shall be added to the Charter, to read, in its entirety,
as follows:
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(d) Upon termination of the Charter, for any reason (i) Charterer shall
leave in place all wiring, connections, switches, splitters, couplings and
junctions necessary to operate slot and player tracking systems; and (ii)
Charterer shall be entitled to remove from the Vessel all furniture, slot,
tracking and other equipment and all other property owned by Charterer;
VII. PURCHASE OPTION
Section 15 shall be deleted in its entirety, and a new Section 15 shall be
substituted in lieu thereof to read as follows:
Section 15. Purchase Option. At any time during the Charter Period,
Charterer shall have the right to make a written offer to purchase the Vessel,
which offer shall be addressed to every member of the AmGam Group, or their
assigns. The AmGam Group (or their assigns) shall have the right to accept or
reject the offer within thirty days receipt of the written notice from
Charterer. Charterer's written offer shall state "The AmGam Group shall have
the right to accept or reject this offer within thirty days of receipt of this
written notice from Charterer, and if it this written offer is not rejected in
30 days, it is deemed accepted. The offer shall contain the following
language:
"If the Charterer delivers a written offer containing the foregoing language
and if the AmGam Group does not reject the offer within 30 days of receipt of
the written offer, then such offer shall be deemed to have been accepted."
Any rejection shall be communicated in writing. Upon acceptance, the
parties shall take all actions necessary or appropriate (including the
cancellation of any liens that members of the AmGam Group shall have) to cause
Charterer to receive a good and merchantable title to the Vessel, free and
clear of all liens and encumbrances.
VIII. ASSIGNMENT
Section 17 of the Charter shall be amended by deleting Section 17 in its
entirety and substituting in lieu thereof, the following:
Section 17. Assignment of Sale of Barge.
(a) The Charter, the right to receive payments thereunder, or any other
interest therein, may be assigned by individual members of the AmGam Group
upon the written consent of Charterer, which consent shall not be unreasonably
withheld; provided, however, that the assignee must assume in writing all of
the assignor's obligations under the Charter (including without limitation,
Owner's indemnification obligations pursuant to Section 8 of the Charter). No
assignment shall be permitted unless the transferring party and the transferee
shall have received all governmental approvals, consents and actions necessary
to effectuate such Transfer, and such Transfer shall not unreasonably disturb
Charterer's peaceful enjoyment of the Vessel during the Charter Period. Any
assignment of a percentage interest in the Charter must also include the sale
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of the same percentage interest in the Vessel pursuant to Section 17(b), and
the "Sale Notice" provided for in Section 17(b) shall include the terms and
conditions of the assignment of the Charter.
(b) The Vessel, or any interest therein, may be sold subject to the Charter
at any time during the Charter Period; provided, however, that Charterer shall
have the first right of refusal with respect to any such sale. Notice of a
proposed sale shall be provided to Charterer by registered mail, setting forth
the name of the proposed transferee, the price to be paid and any other
relevant terms of the proposed transaction (a "Sale Notice"). Charterer shall
have the right, exercisable within thirty days of the date that a Sale Notice
is received, (a) to purchase only the Vessel, or any interest therein, on the
same terms and conditions set forth in the Sale Notice, in which case the
Charter shall remain outstanding, or (b) to purchase both the interest in the
Vessel and the interest in the Charter proposed to be transferred. If
Charterer does not exercise its right of first refusal, then the proposed
transfer can be effected on the same terms and conditions contained in the
Sale Notice within sixty days of the termination of the thirty-day period
during which Charterer had the right to exercise its right of first refusal.
If the Vessel, or such interest therein, is not sold within such sixty-day
period, then the proposed sale cannot be consummated without giving Charterer
another Sale Notice and allowing Charterer to exercise its right of first
refusal.
(c) The AmGam Group shall structure any settlement among the members of the
AmGam Group so that, if Charterer exercises its rights to purchase the Vessel
(or portion thereof) pursuant to this Section 17, Charterer shall receive a
good and merchantable title to the Vessel (or portion thereof), free and clear
of all liens or encumbrances.
IX. NOTICES
Section 19 of the Charter shall be amended to provided for notice as
follows:
If to Charterer:
President Mississippi Charter Corporation
c/o President Casinos, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
with a copy to:
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
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If to Owner, to all of the following:
American Gaming & Entertainment, Ltd.
c/o Xxxxxxx Xxxxxxxxxx
0 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000
AmGam Associates and
American Gaming & Resorts of Mississippi, Inc.
c/o Xxxx Xxxxxxx
Rimmer, Rawlings, XxxXxxxx & Xxxxxxx, P.A.
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
The Official Committee of the Unsecured Creditors of AmGam Associates
x/x X. Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx & Xxx, X.X.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
The Official Committee of the Unsecured Creditors of
American Gaming & Resorts of Mississippi, Inc.
c/o Xxxxxxx X. Xxxx, III
Attorney at Law
0000 Xxxxxx-Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Shamrock Holdings, Inc.
c/o Xxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
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WHEREFORE, this Amendment has been executed by the parties as of the date
first above mentioned.
PRESIDENT MISSISSIPPI CHARTER CORPORATION
/s/ Xxxxx X. Xxxxxxx
------------------------------------
BY:
ITS:
PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC.
/s/ Xxxxx X. Xxxxxxx
------------------------------------
BY:
ITS:
AMERICAN GAMING & ENTERTAINMENT, LTD.
/s/ J. Xxxxxxx Xxxxxxxxxx
------------------------------------
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: President & CEO
AMGAM ASSOCIATES
/s/ J. Xxxxxxx Xxxxxxxxxx
------------------------------------
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: Management Committee
AMERICAN GAMING & RESORTS OF MISSISSIPPI, INC..
/s/ J. Xxxxxxx Xxxxxxxxxx
------------------------------------
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: President
THE OFFICIAL COMMITTEE OF THE UNSECURED CREDITORS OF AMGAM ASSOCIATES
/s/ Xxxxxx Xxxxxxx
------------------------------------
BY: Xxxxxx Xxxxxxx
ITS: Counsel
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THE OFFICIAL COMMITTEE OF THE UNSECURED CREDITORS OF
AMERICAN GAMING & RESORTS OF MISSISSIPPI, INC.
/s/ Xxxxxxx X. Xxxx
------------------------------------
BY: Xxxxxxx X. Xxxx
ITS: Counsel
SHAMROCK HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: President
