NOTICE AND CERTIFICATION OF
NO ORAL AGREEMENTS
THIS NOTICE AND CERTIFICATION OF NO ORAL AGREEMENTS (this "Agreement")
is made by and among VALUE PARTNERS, LTD., a Texas Limited Partnership,
("Lender") and Trans World Gaming Corp., a Nevada Corporation as of December
19, 1997 ("Borrower").
Xxxxxx hereby gives the following notice to Xxxxxxxx and Borrower hereby
acknowledges and agrees with such notice:
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
FOR PURPOSES OF THIS NOTICE, THE WRITTEN LOAN DOCUMENTS ARE COMPRISED OF
THE FOLLOWING (all of which are dated as of December 19, 1997);
1. First Amended Loan Agreement;
2. First Amended Senior Secured Promissory Note in the principal sum
of $4,125,000.00;
3. Notice and Certification of No Oral Agreements;
4. Resolutions By the Unanimous Written Consent of the Directors of
Borrower;
5. Resolutions By the Unanimous Written Consent of the General Partner
of Xxxxxx; and,
6. Form of Warrant
This Agreement may be executed in separate or multiple counterparts by
the parties, and all of such counterparts shall be considered as one and the
same instrument notwithstanding the fact that various counterparts are signed
by only one or more of the parties, and all of such Agreements shall be
deemed but one and the same Agreement.
NOTICE AND CERTIFICATION OF NO ORAL AGREEMENTS
PAGE 1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first above written.
LENDER:
VALUE PARTNERS, LTD.
By: Xxxxxx Xxxxx Partners,
a Texas general partnership
General Partner
By:
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Xxxxxxx Xxxxx
Its: General Partner
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BORROWER:
TRANS WORLD GAMING CORP.,
A NEVADA CORPORATION
By:
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Its:
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NOTICE AND CERTIFICATION OF NO ORAL AGREEMENTS
PAGE 2
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, on this day personally appeared
___________________________________, the General Partner of Xxxxxx Xxxxx
Partners, general partners of Value Partners, Ltd. who stated that he has
read the foregoing, and that the information contained therein is within his
personal knowledge and is true and correct.
____________________________________
SUBSCRIBED AND SWORN TO BEFORE ME, on this the ______ day of __________,
1997 to certify with my hand and seal of office.
_________________________________
Notary Public in and for the State of Texas
My Commission Expires:_____________
_________________________________
Printed Name of Notary Public
NOTICE AND CERTIFICATION OF NO ORAL AGREEMENTS
PAGE 3
STATE OF NEW YORK Section
Section
COUNTY OF NEW YORK Section
BEFORE ME, the undersigned authority, on this day personally appeared
___________________________________, the _______________ of Trans World
Gaming Corp. who stated that he has read the foregoing, and that the
information contained therein is within his personal knowledge and is true
and correct.
____________________________________
SUBSCRIBED AND SWORN TO BEFORE ME, on this the ______ day of __________,
1997 to certify with my hand and seal of office.
_________________________________
Notary Public in and for the
State of New York
My Commission Expires:_____________
_________________________________
Printed Name of Notary Public
NOTICE AND CERTIFICATION OF NO ORAL AGREEMENTS
PAGE 4
THE TRANSFER OF THIS NOTE IS RESTRICTED - SEE SECTION 9 HEREOF
FIRST AMENDED
SENIOR SECURED PROMISSORY NOTE
$4,125,000.00 December 19, 1997
New York, New York
1. AGREEMENT TO PAY. FOR VALUE RECEIVED, the receipt of which is hereby
acknowledged, the undersigned, TRANS WORLD GAMING CORP., a Nevada Corporation
(hereinafter referred to as the "Maker"), promises to pay to the order of
VALUE PARTNERS, LTD., a Texas limited partnership (hereinafter referred to as
the "Payee", and Xxxxx and each successive owner and holder of this Note
being hereinafter generally referred to as the "Holder") in the manner
provided for herein of the principal sum of
FOUR MILLION ONE HUNDRED TWENTY-FIVE THOUSAND
AND NO/100 DOLLARS
($4,125,000.00)
together with interest on the outstanding principal balance hereof remaining
from time to time unpaid at the rate provided in Section 2 hereof. This Note
amends, renews, reinstates, modifies, restates and replaces in its entirety
that certain Senior Secured Promissory Note in the principal balance of
$2,625,000.00 dated October 27, 1997 (the "Prior Note"). This Note is
entitled to all of the liens, benefits, priorities, rights and privileges of
the Prior Note and that certain Loan Agreement dated as of October 27, 1997,
as amended, which Prior Note shall, upon execution and delivery hereof be
canceled and deemed null and void and of no effect.
2. INTEREST RATE.
(a) The outstanding principal balance hereof shall bear simple interest at
the rate of the lesser of twelve percent per annum (12%) or the highest
lawful rate permitted by law (the "Regular Rate"), computed daily on the
basis of a 360 day year consisting of twelve 30-day months for each day all
or any part of the principal balance hereof shall remain outstanding.
(b) All agreements between Maker and Payee, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that
in no contingency, whether by reason of demand or acceleration of the Final
Maturity Date (as defined in Section 4) or otherwise, shall the interest
contracted for, charged, received, paid or agreed to be paid to Payee
exceed the maximum amount permissible under the laws of the State of New
York (hereinafter the "Applicable Law"). If from any circumstance
whatsoever, interest would otherwise be payable to Payee in excess of the
maximum
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FIRST AMENDED SENIOR SECURED PROMISSORY NOTE, PAGE 1
amount permissible under the Applicable Law, the interest payable to
Payee shall be reduced to the maximum amount permissible under the
Applicable Law, and if from any circumstance Payee shall ever receive
anything of value deemed interest by the Applicable Law in excess of the
maximum amount permissible under the Applicable Law, an amount equal to
the excessive interest shall be applied to the reduction of the
principal hereof and not to the payment of interest, or if such
excessive amount of interest exceeds the unpaid balance of principal
hereof, such excess shall be refunded to Maker. All interest paid or
agreed to be paid to Payee shall, to the extent permitted by Applicable
Law, be amortized, prorated, allocated and spread throughout the full
period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not
exceed the maximum amount permissible under the Applicable Law. Payee
expressly disavows any intent to contract for, charge or receive
interest in an amount which exceeds the maximum amount permissible under
the Applicable Law. This paragraph shall control all agreements between
Maker and Payee.
3. DOCUMENTS. Maker shall, upon execution of this Note, execute and cause
to be delivered to Xxxxxxx, Xxxxx, Xxxxx & Bird, to the benefit of Payee,
that certain Loan Agreement, and that certain Certificate of No Oral
Agreements, that certain Warrant to Purchase Common Stock and thereafter such
other documents as may be required from time to time pursuant to such
documents.
4. INCORPORATION BY REFERENCE. The First Amended Loan Agreement dated as of
the date hereof, including Conversion Rights as set forth in Section 4
thereto and Events of Default as set forth in Section 17 thereto, is attached
thereto as Exhibit "A" and incorporated herein by reference.
5. PAYMENTS. Maker shall, until all obligations under the terms of this
Note are satisfied, on or before the 10th calendar day following each three
(3) calendar month period, with the first three month period to commence as
of October 1, 1997 pay or cause to be paid the sum equal to forty percent
(40%) of all cash received during that prior three (3) month period, if any,
by it or its wholly owned subsidiary, Tottenham & Co., d/b/a ART Marketing
Ltd. (the "Subsidiary") for services rendered by Maker or the Subsidiary as
to the Boxer Casino located in the city of Gyandja (Azerbaijon Republic),
including pursuant to that Joint Activity Agreement dated March 31, 1997 by
and between Subsidiary and Xxxxxx Xxxxxxx, provided that in no event shall
such sum exceed the principal balance of the Note, together with accrued
unpaid interest and other sums due Payee as of the date of such payment. The
payment shall be applied first to unpaid fees and expenses of Payee arising
in relation to this Note, next to unpaid interest and then to unpaid
principal. The entire unpaid principal balance of this Note and all accrued
unpaid interest herein is due and payableDecember 31, 1998 ("Final Maturity
Date"). The obligation to pay this Note is a general obligation of the Maker
and is not limited to proceeds received from the operation of the Boxer
Casino. All payments to be made by Maker to the Payee hereunder shall be
made to the Payee at 0000 Xxxx Xxxxxx, Xxxxx
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FIRST AMENDED SENIOR SECURED PROMISSORY NOTE, PAGE 2
0000 Xxxx, Xxxxxx, Xxxxx 00000, (or to such other address as another Holder
may notify the Maker pursuant to Section 10 hereof), not later than 4:00 p.m.
Central Time on the date when due in lawful money of the United States of
America and immediately available funds. The Maker will promptly and
punctually pay when due (whether on a scheduled payment date or at maturity
or upon the prepayment of such Note) the principal of and interest on the
Note, without any presentment thereof, directly to Holder of the Note at the
address of such Holder shown in the register maintained by the Maker for such
purposes or at such other addresses the Holder may from time to time
designate in writing to the Maker or, if a bank account is designated in any
written notice to Maker from the Holder, the Maker will make such payments by
wire transfer or other immediately available funds to such bank account,
marked for attention as indicated, or in such other manner or to such other
account of the Holder in any bank in the United States of America as such
Hlder may from time to direct in writing. The Holder of the Note agrees that
in the event it shall sell or transfer the Note it will, prior to the
delivery of the Note make a notation thereon of all principal, if any,
prepaid on such Note and will also note thereon the date to which interest
has been paid on such Note. Upon repayment in full of the Note, the Holder
of the Note shall deliver such Note to the Maker for cancellation. Maker
shall not be charged a penalty in the event of prepayment of the Note, to the
extent such prepayment is consented to in writing by the Holder. In the
event of conflict of any term of this Note with any term of the Loan
Agreement, the terms of the Loan Agreement shall control.
6. NEGOTIABILITY; OFFSETS, DEFENSES OR COUNTERCLAIMS. Subject to
applicable law and regulation, including but not limited to Federal and State
securities laws and regulations, this Note is freely negotiable. As of the
date hereof, Maker knows of no defenses, setoffs, or counterclaims existing
as of the date hereof which could be asserted or brought by the Maker or any
other party in any suit or action for the collection of any sum due hereunder.
7. CONSENTS. WAIVERS AND MODIFICATIONS. No term, covenant, agreement or
condition of this Note may be amended, supplemented or modified, or
compliance therewith waived (either generally or in a particular instance and
either retroactively or prospectively), except pursuant to a written
instrument signed by the Maker and the Holder. No course of dealing between
the Maker and the Holder of the Note or any delay or failure on the part of
the Holder of this Note in exercising any rights hereunder shall operate as a
waiver of any rights of such Holder.
8. GOVERNING LAW. THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE
OF NEW YORK. WHENEVER POSSIBLE EACH PROVISION OF THIS NOTE SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS NOTE SHALL BE PROHIBITED BY OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH
PROVISION OR THE REMAINING PROVISIONS OF THIS NOTE. WHENEVER IN THIS NOTE
REFERENCE IS MADE
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FIRST AMENDED SENIOR SECURED PROMISSORY NOTE, PAGE 3
TO THE PAYEE OR THE MAKER, SUCH REFERENCE SHALL BE DEEMED TO INCLUDE, AS
APPLICABLE, A REFERENCE TO THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THE
PROVISIONS OF THIS NOTE SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT
OF SUCH SUCCESSORS AND ASSIGNS. THE MAKER'S SUCCESSORS AND ASSIGNS SHALL
INCLUDE, WITHOUT LIMITATION, A RECEIVER, TRUSTEE OR DEBTOR IN POSSESSION FOR
THE MAKER.
9. SECURITIES LAWS. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS
NOTE THEREFORE MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR OTHERWISE
DISTRIBUTED FOR VALUE IN THE ABSENCE OF (i) AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE MAKER THAT SUCH SALE, TRANSFER, ASSIGNMENT, PLEDGE OR OTHER
DISTRIBUTION IS EXEMPT FROM (OR NOT OTHERWISE SUBJECT TO) THE REGISTRATION
(OR QUALIFICATION) AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT OR LAWS,
OR (ii) SUCH REGISTRATION OR QUALIFICATION.
10. ATTORNEYS FEES. In the case of a default, the Maker shall pay to the
Holder, to the extent permitted by law, such further amount as shall be
sufficient to cover the cost and expense of collection, including (without
limitation) reasonable attorneys' fees, costs and expenses.
11. WAIVER OF PROTEST. The Maker expressly waives demand, grace, notice of
intent to accelerate, notice of acceleration, presentment for payment, and
protest, and further agrees that this Note and the Loan Agreement may be
renewed, and the time for payment extended without notice.
12. SUCCESSORS AND ASSIGNS. All the covenants, stipulations, promises and
agreements in this Note contained by or on behalf of the Maker shall bind its
successors and assigns, whether so expressed or not.
13. HEADINGS. The headings of the Sections of this Note are inserted for
convenience only and shall not be deemed to constitute a part of this Note.
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FIRST AMENDED SENIOR SECURED PROMISSORY NOTE, PAGE 4
IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed
and delivered as of the date first above written.
TRANS WORLD GAMING CORP.,
A NEVADA CORPORATION
By: _______________________________
Its: _______________________________
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FIRST AMENDED SENIOR SECURED PROMISSORY NOTE, PAGE 5
