Exhibit 10.4
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, 1997), 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
redefined 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.
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, 1997, 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.
(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
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 $12,000,000.
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.
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:
(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 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
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
WHEREFORE, this Amendment has been executed by the parties
as of the date first above mentioned.
PRESIDENT MISSISSIPPI CHARTER CORPORATION
XXXXX X. XXXXXXX
________________________
BY:
ITS:
PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC.
XXXXX X. XXXXXXX
________________________
BY:
ITS:
AMERICAN GAMING & ENTERTAINMENT, LTD.
J. XXXXXXX XXXXXXXXXX
________________________
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: President & CEO
AMGAM ASSOCIATES
J. XXXXXXX XXXXXXXXXX
________________________
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: Manager
AMERICAN GAMING & RESORTS OF MISSISSIPPI, INC.
J. XXXXXXX XXXXXXXXXX
________________________
BY: J. Xxxxxxx Xxxxxxxxxx
ITS: President
THE OFFICIAL COMMITTEE OF THE UNSECURED CREDITORS OF AMGAM
ASSOCIATES
X. XXXXXX XXXXXXX
________________________
BY: Xxxxxx Xxxxxxx
ITS: Counsel
THE OFFICIAL COMMITTEE OF THE UNSECURED CREDITORS OF AMERICAN
GAMING & RESORTS OF MISSISSIPPI, INC.
XXXXXXX X. XXXX III
________________________
BY: Xxxxxxx X. Xxxx III
ITS: Counsel
SHAMROCK HOLDINGS, INC.
XXXXXXX X. XXXXXXX
________________________
BY: Xxxxxxx X. Xxxxxxx
ITS: President
STATE OF Louisiana
PARISH OF Orleans
Personally appeared before me, the undersigned authority in
and for the said Parish and State, within my jurisdiction, the
within Xxxxx X. Xxxxxxx, who acknowledged that he is Executive
Vice President and Chief Financial Officer, respectively of
PRESIDENT MISSISSIPPI CHARTER CORPORATION, a Mississippi
Corporation, and that for and on behalf of said corporation, and
as its act and deed, he signed, sealed and delivered the above
and foregoing instrument for the purposes mentioned on the day
and year therein mentioned, after first having been duly
authorized by said corporation so to do.
GIVEN under my hand and official seal of office on this the
30th day of October, 1998.
Xxxxxxxx Xxxxxx
__________________
Notary Public
My Commission Expires:
for life
___________
STATE OF Louisiana
PARISH OF Orleans
Personally appeared before me, the undersigned authority in
and for the said County and State, within my jurisdiction, the
within Xxxxx X. Xxxxxxx, who acknowledged that he is Executive
Vice President and Chief Financial Officer, respectively of
PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC., a Mississippi
Corporation, and that for and on behalf of said corporation, and
as its act and
deed, he signed, sealed and delivered the above and foregoing
instrument for the purposes mentioned on the day and year therein
mentioned, after first having been duly authorized by said
corporation so to do.
GIVEN under my hand and official seal of office on this the
30th day of October, 1998.
XXXXXXXX XXXXXX
________________
Notary Public
My Commission Expires:
for life
__________
STATE OF New Jersey
COUNTY OF Bergen
Personally appeared before me, the undersigned authority in
and for the said County and State, within my jurisdiction, the
within J. Xxxxxxx Xxxxxxxxxx, who acknowledged that he is
President & CEO, respectively of AMERICAN GAMING & ENTERTAINMENT,
LTD., a Delaware Corporation, and that for and on behalf of said
corporation, and as its act and deed, he signed, sealed and
delivered the above and foregoing instrument for the purposes
mentioned on the day and year therein mentioned, after first
having been duly authorized by said corporation so to do.
GIVEN under my hand and official seal of office on this the
26 day of October, 1998.
XXXXXX XXXXXX
_______________
Notary Public
My Commission Expires:
Dec. 8, 2002
