Exhibit 10.2
AGREEMENT
This Agreement (this "Agreement") is made as of June 16, 2004 by and
between TURNBERRY/LAS VEGAS BOULEVARD, L.L.C., a Nevada limited liability
company ("Turnberry"), TURNBERRY/LAS VEGAS BOULEVARD, L.P. ("Member") and ORION
CASINO CORPORATION, a Nevada corporation ("Orion").
RECITALS
WHEREAS, Xxxxxx/Cherry Hill Partners, Limited Partnership, a Florida
limited partnership ("Maker"), has executed and delivered a certain Promissory
Note dated of even date herewith payable to the order of Orion in the original
principal amount of $35,842,027.00 (the "New Note"), evidencing the Maker's
indebtedness in that sum to Orion. As an inducement to Orion to accept such New
Note in payment of a portion of the purchase price of a Promissory Note (the
"Turnberry Note") dated May 18, 2000 in the original principal amount of
$23,000,000 made by Turnberry and payable to Orion (and which is being sold by
Orion), Turnberry and Member have agreed to execute this Agreement;
NOW, THEREFORE, in consideration of the premises and agreements set forth
herein the parties to this Agreement intending to be legally bound, hereby agree
as follows:
1. Incorporation of Recitals. The recitals set forth in the introductory
paragraphs to this Agreement entitled "RECITALS" are, by this reference,
incorporated into and deemed a part of this Agreement.
2. Sale of El Rancho Property or Interests in Turnberry. The parties hereto
hereby agree that upon the earlier to occur of (i) the sale or other disposition
in one (1) or more transactions by Turnberry of all or a portion of the real
property located at the northeast corner of Las Vegas Boulevard South and
Riviera Boulevard, Xxxxx County, Nevada, as more fully described in that
Agreement of Sale, dated as of March 1, 2000, between Orion and Turnberry (the
"El Rancho Property"), other than to one (1) or more Affiliates (as defined in
the New Note) of Xxxxxxx Xxxxxx, or (ii) the sale or other disposition in one
(1) or more transactions by Xxxxxxx Xxxxxx or his Affiliates of all or a portion
of their direct or indirect ownership interests in Turnberry, other than to one
(1) or more Affiliates of Xxxxxxx Xxxxxx, which, in the case of each of clauses
(i) and (ii), occurs on or before July 31, 2005, then Orion may, at its option,
accelerate the payment of the New Note and Turnberry and/or Member shall pay or
cause to be paid as a prepayment of the obligations due under the New Note:
(A) in the event of a sale or other disposition described in clause
(i) above, fifty percent (50%) of the El Rancho Net Proceeds. For purposes
of this provision, "El Rancho Net Proceeds" shall mean the proceeds of such
sale or other disposition (including obligations assumed by the transferee
or which the transferee directly or indirectly takes subject to) less (1)
all expenses of the sale, (2) all debt on the El Rancho Property,
Turnberry, or the direct or indirect
ownership interests in Turnberry, to the extent proceeds of such debt were
used in connection with the El Rancho property, but exclusive of the
Turnberry Note, and (3) $10,000,000, which shall be retained by Turnberry;
or
(B) in the event of a sale or other disposition described in clause
(ii) above, fifty percent (50%) of the Turnberry Net Proceeds. For purposes
of this provision, "Turnberry Net Proceeds" shall mean the proceeds of such
sale or other disposition (including obligations assumed by the transferee
or which the transferee directly or indirectly takes subject to) less (1)
all expenses of the sale, (2) all debt (other than assumed debt) on the El
Rancho Property, Turnberry or the direct or indirect ownership interests in
Turnberry to the extent proceeds of such debt were used in connection with
the El Rancho property, but exclusive of the Turnberry Note, and (3)
$10,000,000, which shall be retained by the owners in Turnberry; or
(C) in the event of a sale of a portion of the El Rancho Property or a
portion of the direct or indirect ownership interests in Turnberry, other
than to an Affiliate (as defined in the New Note) of Xxxxxxx Xxxxxx, then
the July 31, 2005 date in the initial paragraph of this Section 2 shall be
extended to January 31, 2006, so that, if a subsequent sale shall occur
prior to January 31, 2006, such sale shall be aggregated with the prior
sale in determining whether such transactions give rise to the prepayment
obligation and the amount of the prepayment;
provided, however, that any such prepayment shall not exceed, in the aggregate,
the then-outstanding balance due under the New Note. Turnberry and/or Member
shall notify Orion of any such transaction at least one (1) business day prior
to the closing thereof. In the event of any such transaction giving rise to a
prepayment obligation, Turnberry and/or Member shall provide such documentation
as Orion may reasonably request, and shall provide access to appropriate books
and records as reasonably requested by Orion, so that Orion can verify any
amounts owing hereunder.
3. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
(b) Counterparts. This Agreement may be executed by the different parties
hereto in any number of separate counterparts, each of which, when so executed
and delivered, either personally or by facsimile transmission with confirmation
of delivery, shall be an original, and all such counterparts shall together
constitute one and the same instrument. Any party that delivers its original
counterpart signature to this Agreement by facsimile transmission hereby
covenants to personally deliver its original counterpart signature promptly
thereafter to the other parties.
(c) Governing Law. This Agreement is made in and shall be construed in
accordance with and governed by the substantive laws of the State of Nevada
without reference to conflict of laws principles.
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(d) Notices. All notices permitted or required under this Agreement shall
be in writing, and shall be (a) sent by registered or certified mail, postage
prepaid, (b) sent by a national overnight courier service, (c) sent by facsimile
transmission (with electronic confirmation), or (d) hand delivered, addressed to
the addressee at the addresses set forth below:
If to Turnberry or Member: Turnberry/Las Vegas Boulevard, L.L.C.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Legal Department
Fax: (000) 000-0000
with copies to: Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxxx
One Oxford Centre, 20th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Orion: Orion Casino Corporation
c/o ITG Vegas, Inc.
Xxx Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxx, Esquire
Cozen and X'Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
or at such other address as the addressee may designate by notice given in
accordance with this paragraph.
Notices shall be deemed received by the addressee (a) if sent by mail,
two business days after properly delivered to the U.S. Postal Service, (b) if
sent by overnight courier, one business day after delivered to the overnight
courier service, (c) if transmitted by facsimile, upon proper transmission to
the addressee, and (d) if hand delivered, upon delivery.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE 1 OF 1 OF AGREEMENT]
IN WITNESS WHEREOF, this Amendment has been executed as of the day first
above written.
TURNBERRY/LAS VEGAS BOULEVARD, L.L.C.
By: Turnberry/Las Vegas Boulevard, L.P., its
sole member
By:
-------------------------------------
Name:
-----------------------------------
Title:
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TURNBERRY/LAS VEGAS BOULEVARD, L.P.
By:______________________________________
Name:____________________________________
Title:___________________________________
ORION CASINO CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
Acknowledged this 16th day of June, 2004.
XXXXXX/CHERRY HILL PARTNERS,
LIMITED PARTNERSHIP, a Florida limited partnership
By: XXXXXX/CHERRY HILL, LLC, a Florida limited
liability company, its sole General Partner
By:______________________________
Name:____________________________
Title:___________________________
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