EXHIBIT 10.1
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
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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.
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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/100 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/100 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
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Corporation consents to such cancellation.
2.5 Settlement of the sale price of the Slot Machines. On or before 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 claim 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.
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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 title 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
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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 T, 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 Goldshore 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
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Xxxxxx Xxxxxxxx Xxxxx 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
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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 enforceability 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
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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 (iii)
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 title
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
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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.
(b) 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:
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(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 8.1(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 Termination. If this Agreement is terminated under Section
8.1, the transactions at the Closing contemplated hereby shall be terminated
without further action by any party, 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
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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(l) 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 E hereto, shall be assigned by AGEL
to the liquidating trustee created under such plan.
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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 & Wiser
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
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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.
Heller, 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, 00xx 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
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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 title 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 title, and (b) vigorously and diligently to assert and
pursue to final order all claims and defenses available to it under the Order
15
43
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: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial Officer
PRESIDENT CASINOS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial Officer
PRESIDENT MISSISSIPPI CHARTER
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial Officer
AMERICAN GAMING & ENTERTAINMENT, LTD.
By: /s/ J. Xxxxxxx Xxxxxxxxxx
---------------------------------------
J. Xxxxxxx Xxxxxxxxxx, President & CEO
AMGAM ASSOCIATES
By: /s/ J. Xxxxxxx Xxxxxxxxxx
---------------------------------------
J. Xxxxxxx Xxxxxxxxxx, Management Comm.
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AMERICAN GAMING & RESORTS OF
MISSISSIPPI, INC.
By: /s/ J. Xxxxxxx Xxxxxxxxxx
---------------------------------------
J. Xxxxxxx Xxxxxxxxxx, President
COMMITTEE FOR THE UNSECURED
CREDITORS OF AMGAM
By: /s/ X. Xxxxxx Xxxxxxx
---------------------------------------
X. Xxxxxx Xxxxxxx
COMMITTEE FOR THE UNSECURED
CREDITORS OF AGRM
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, III
IGT INTERNATIONAL
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
It's Attorney-In-Fact
* SHAMROCK HOLDINGS GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
* Subject to approval of the United States
Bankruptcy Court for the Northern
District Of New York
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LIST OF EXHIBITS
Exhibit A: Xxxx of Sale
Exhibit B: Promissory Note
Exhibit C: Security Agreement
Exhibit D: Preferred Ship Mortgage
Exhibit E: Guaranty Agreement
Exhibit F: Consent of President Mississippi Charter Corporation ("Charter
Corporation") to the cancellation of the Charter Agreement dated
February 17, 1995 between Charter Corporation and AGEL
Exhibit G: Cross Receipt
Exhibit H: Joint Motion to approve Agreement of Sale to be filed in the
Mississippi Bankruptcy Court
Exhibit I: Motion to be filed in the New York Bankruptcy Court
Exhibit J: Joint Motion to expedite approval of Agreement of Sale to be
filed in the Mississippi Bankruptcy Court
Exhibit K: Withdrawal of Objection to Approval of Settlement originally
filed by IGT in the Adversary P 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 The President Riverboat
Casino-Mississippi, Inc."
Exhibit L: Order Approving Settlement and Judgment of Dismissal with
Prejudice in Adversary Proceeding No. 97-0868, entitled "AmGam
Associates, a Mississippi General Partnership d/b/a Goldshore
Casino and Official Unsecured Creditors' Committee v. President
Mississippi Charter Corporation and The President Riverboat
Casino-Mississippi, Inc."
Exhibit M: Satisfactions of Preferred Ship Mortgages
Exhibit N: Resolutions of the Board of Directors of President Casinos, Inc.
Exhibit O: Resolutions of the Board of Directors of President Mississippi
Charter Corporation
Exhibit P: Resolutions of the Board of Directors of The President Riverboat
Casino-Mississippi, Inc.
Exhibit Q: Closing certificate of AGEL
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Exhibit R: Closing certificate of Purchaser
Exhibit S: UCC Form 1's
Exhibit T: Coast Guard Form 1258
Exhibit U: Agreement of Compromise, Settlement and Release
Exhibit V: Joint letter to the American Arbitration Association
Exhibit W: Joint Motion and Order to Dismiss President Mississippi Charter
Corporation and The President Riverboat Casino-Mississippi, Inc.
as defendants from the Complaint in Adversary Proceeding No. 97-
01010, entitled "International Gaming Technology v. AmGam
Associates, a Mississippi General Partnership d/b/a Goldshore
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 The
President Riverboat Casino-Mississippi, Inc."
Exhibit X: Motion to Dismiss the Complaint in adversary proceeding No. 98-
05095 entitled "International Gaming Technology v. President
Casinos, Inc., President Mississippi Charter Corporation, The
President Riverboat Casino-Mississippi, Inc., and President
Riverboat Casino, Inc."
Exhibit Y: Motion to Dismiss President Mississippi Charter Corporation;
President Riverboat Casinos, Inc., and The President Riverboat
Casino-Mississippi, Inc. as defendants in Adversary Proceedings
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 The President Riverboat Casino-Mississippi,
Inc."
Exhibit Z: Motion to Dismiss Appeal from an order rendered by the
Mississippi Bankruptcy Court in Adversary Proceedings 95-1001,
filed by President Mississippi Charter Corporation and The
President Riverboat Casino-Mississippi, Inc., in the United
States District Court for the Southern District of Mississippi
(1:99cv153 GR and 1:99cv154 GR)
Exhibit AA: 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.
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