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Exhibit 10.15
AMGAM/AGRM - AGEL SETTLEMENT AGREEMENT & TERM SHEET
Whereas AmGam Associates, a chapter 11 debtor-in-possession ("AmGam") and
American Gaming and Resorts of Mississippi, Inc., a chapter 11 debtor-in-
possession ("AGRM") (AmGam and AGRM collectively, the "Debtors") filed
adversary proceedings against American Gaming and Entertainment, Ltd.
("AGEL"), ▇▇▇▇▇▇▇ Holdings, Inc.,now known as Shamrock Holdings Group,
Inc. ("Shamrock"), and ▇▇▇▇▇▇▇ Management and Development Co. ("▇▇▇▇▇▇▇")
seeking, among other things, to avoid alleged fraudulent transfers (the
"Avoidance Action");
Whereas the Avoidance Action is being prosecuted by the Official Committees
of Unsecured Creditors of AmGam and AGRM for the benefit to their respective
estates;
Whereas AGEL, Shamrock and ▇▇▇▇▇▇▇ have asserted various defenses to the
allegations set forth in the Avoidance Action;
Whereas AGEL has filed proofs of claim against the Debtors in an amount in
excess of $44,664,514.45;
Whereas Shamrock asserts that it possesses claims against the Debtors in an
amount in excess of $29,816,595.00;
Whereas the Debtors assert various defenses to the claims filed or asserted
by AGEL and Shamrock;
Therefore, in full and final compromise/settlement and satisfaction of all
claims that AmGam, AGRM, the AmGam Unsecured Creditors' Committee ("AmGam
Committee"), and the AGRM Unsecured Creditors' Committee ("AGRM Committee"), may
have against AGEL, Shamrock and ▇▇▇▇▇▇▇, and of all claims that AGEL, Shamrock
and ▇▇▇▇▇▇▇ may have against the Debtors or the Debtors' chapter 11 estates
or their representatives, the undersigned agree to support any chapter 11
Liquidating Plan filed jointly in the AmGam and AGRM cases which contain the
following terms:
I. Settlement Participants:
A. AmGam;
B. AGRM;
C. AmGam Committee;
D. AGRM Committee;
E. AGEL;
F. Shamrock; and
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▇. ▇▇▇▇▇▇▇
▇▇. Matters to be Settled:
A. Avoidance Action (Fraudulent Conveyance Litigation) with Motion for
Substantive Consolidation to be Dismissed;
B. Plan and Disclosure Statement Objections by both Debtors and
AGEL; and
C. Dispute between AGEL and Shamrock as to the proper holder of the
claims against the Debtors. Except as set forth in the previous sentence,
nothing in this settlement agreement shall be construed to settle, release or
otherwise compromise any claim AGEL, Shamrock or ▇▇▇▇▇▇▇ may have against
each other.
III. Settlement Mechanism and Goals:
A. Dismissal of Avoidance Action after entry of final Order of
Confirmation;
B. Liquidation Plan supported by both Debtors, both Committees, AGEL,
Shamrock and ▇▇▇▇▇▇▇.
IV. Asset Distribution Mechanism and Formula:
A. AGEL and/or Shamrock or its assignee will be the only parties
entitled to receive any distributions under the Plan for claims of any kind
asserted against the Debtors by AGEL, Shamrock and ▇▇▇▇▇▇▇, or their
officers, directors or stockholders whether such claims are secured,
unsecured, direct or acquired claims, or otherwise;
B. Prior to the final approval of any settlement agreement
incorporating these terms either by separate order or by confirming the
chapter 11 Liquidating Plan to be filed jointly in the AmGam and AGRM cases,
AGEL and Shamrock shall advise both Debtors and both Committees, in writing,
of the allocation between AGEL and Shamrock or its assignee of the
distributions described in Sec. IV, Para. A above. Such agreed upon
allocation shall become an integral part of this settlement agreement and
shall be incorporated into any order approving this
settlement agreement.
C. Subject to the terms and conditions of paragraph G below, AGEL and
Shamrock in consideration for the terms of this settlement agree to withdraw all
of their secured and unsecured claims against the Debtors and hereby agree to
have one collective general allowed unsecured claim against the Debtors in
the amount of $33,000,000.00, which claim shall be fully satisfied in
accordance with the conditions of this term sheet, and particularly, Sec. VI
hereinbelow; except to the extent otherwise set forth in this term sheet,
AGEL and Shamrock shall waive their claims against all assets in the AmGam
and AGRM estates, including all funds received from the President for the
FF&E purchase which are hereby deemed property of the
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AmGam estate and shall be dedicated to and used to pay expenses of
administration and other allowed unsecured claims in the AmGam estate;
D. On the Effective Date of the Plan, AGEL shall convey to the
AmGam/AGRM Creditor's Trust (the "Trust") to be used for the holders of
Allowed Claims and created under the terms of the Plan (i) an undivided 22.7%
ownership interest in the asset known as the President Casino, and (ii) an
undivided 22.7% interest in all rights of the owner/lessor under the existing
Charter Agreement with the President (the "President Lease"), which assets
shall be held by the Trustee ("Trustee") of the Trust for the benefit of the
holders of AmGam Allowed Unsecured Claims and AGRM Allowed Unsecured Claims,
AGEL and Shamrock or its assignee until the Plan is fully consummated. The
Trustee shall be vested with all rights and benefits pertaining to the 22.7%
undivided ownership interest in the President Casino, including all rights of
the owner under the President Lease (including, without limitation, the right
to receive all charter hire and other payments thereunder, to enforce the
collection of any sums or obligations payable or performable thereunder, to
exercise any and all remedies available to the owner thereunder, and to grant
or withhold any consent thereunder). The beneficiaries of the Trust shall be
the AmGam Creditors, the AGRM Creditors, AGEL and Shamrock or its assignee.
E. As additional responsibilities, the Trustee shall receive and shall
have the sole responsibility for receiving all revenue generated from payments
owned by the President, or other sources, for lease or note payments due as a
result of the President Lease of the former Gold Coast Casino or the purchases,
under a note, of certain FF&E located thereon. The Trustee shall also have
responsibility for payment of such funds as required herein and under the terms
of a confirmed Plan containing the provisions of this term sheet. Except as
stated in the following proviso, neither the Trust nor the Trustee shall
assume or be obligated to pay or perform any obligation of the owner under
the President Lease, and AGEL shall be and remain liable for all such owner's
obligations and shall indemnify and hold the Trust and the Trustee harmless
from and against all such liabilities and obligations; provided, that the
Trust shall assume only the obligations of the owner under the President
Lease that accrue and are first performable thereunder during the period
beginning on the Effective Date and ending on the date the Plan is fully
consummated or such earlier date of termination of the President Lease, but
such assumption, however, shall be enforced solely against the assets of the
Trust and shall not impose any liability on or be enforceable against the
Trustee or the beneficiaries of the Trust.
F. Except as required in section VII herein, upon the Effective Date of
a confirmed Plan of Liquidation, the monthly payments under the President Lease
shall be collected by the Trustee and distributed in accordance with Section VI,
Paragraph B., ▇▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇.
▇. ▇▇▇▇ recognizes and agrees that Shamrock holds a valid, properly
perfected and unavoidable first mortgage on or security interest in the Casino
Barge in the original principal amount of $2,040,603.75. In consideration of
the terms of this settlement the AmGam Committee and the AGRM Committee
agree not to contest the Ship Mortgage L.P. preferred Ship's Mortgage now
held by Shamrock as a properly perfected and unavoidable first mortgage
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on or security interest in the Casino Barge in the original principal amount of
$2,040,603.75. AGEL agrees that it shall assume sole responsibility for the
satisfaction of Shamrock's mortgage or security interest and Shamrock and AGEL
agree, as consideration for the agreement by the AmGam and AGRM creditors not to
challenge the Ship Mortgage, L.P. ship mortgage, that there shall be no
charge or encumbrance against the interests of the AmGam and AGRM creditors
or the interests of the AmGam and AGRM creditors in the Trust or the above
described 22.7% undivided ownership interest on account of such claim.
H. Other than payments under this distribution structure from the
revenue stream generated by the President Lease and the payment described in
section VII below, holders of Allowed Unsecured Claims in AmGam shall share
only in distribution of assets owned by and liquidated in the AmGam case.
I. Other than payments under this distribution structure from the
revenue stream generated by the President Lease and the payments described in
section VII below, holders of AGRM Allowed Unsecured Claims shall share only
in distribution of assets owned by the liquidated in the AGRM case.
J. For purposes of this settlement, the following treatment of claims
shall be included in a Plan of Liquidation:
(1) all allowed administrative claims in each estate shall be
paid in full at confirmation from assets of the respective estate;
(2) all allowed priority claims shall be paid in accordance with the
terms of the Plan;
(3) and all other claims treated in accordance with the Plan and
pursuant to priorities established by the Bankruptcy Code.
K. On behalf of the owners, the Trustee shall also have the power and
authority to act to recover lease payments or the casino itself, in the event of
a default under the President Lease or any other payment or performance
obligations by the President. The terms of the Trust shall give the Trustee
the discretion to use a portion of the $67,500.00 monthly payments from the
President Lease (not to exceed $2,500.00 per month) to create a reserve for
payment of the owner's share of the cost of redelivering the vessel to the
owner as provided in the President Lease, which reserve shall be in addition
to the $2,500.00 deduction from the monthly lease payment described in Sec.
VI, Para. B(2)(b) hereinbelow.
V. Use of Cash at Confirmation and During Plan Confirmation Period:
A. Cash Available at Confirmation and to be Generated During Term of
Plan:
(1) Estimate of value of assets to be available for liquidation and
distribution to creditors (estimated at October 15, 1996):
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(a) AmGam:
(1) Cash on Hand per Debtor's operating reports
(includes FF&E collections & pro-rata share
of Pres. lease pmnts.): $2,097,253
(2) A/C Rec.: FF&E purchase pmnts. (from
Pres. Per Debtor's operating reports)
(13 mos. % $120,748.12) $1,569,724
___________
Total: $3,666,977
(b) AGRM:
Cash on hand (est.): $ 163,533
(2) Estimated cash flow for terms of plan (beginning October 1, 1996):
From President Lease payments ($67,500.00 x 45 mos) $3,037,500.00
B. Further Distribution of Funds During Plan Consummation Period:
The remaining cash flow from FF&E and lease payments under the President
FF&E Note and Lease is distributed as follows:
(1) The Plan will dedicate all remaining payments by the President relating
to the FF&E purchase to payment of the Allowed Claims of the AmGam Unsecured
Creditor body, and all cash in the AmGam estate at the time of confirmation
shall likewise be so dedicated. The AGRM assets likewise shall be dedicated
to payment of the Allowed Claims of the AGRM Unsecured Creditor body.
(2) From the Effective Date of the Plan, the payments received
under the President Lease shall be paid by the Trustee as follows:
(a) First, to the appropriate Distribution Funds described
in a Plan for the benefit of the Allowed Claims of AmGam
and AGRM creditors, excluding AGEL and Shamrock:
$67,500.00 per month for distribution in accordance with
the terms of the Plan;
(b) Second, to a segregated account to be held by the Trustee
for use in paying any and all costs of protecting the
Casino leasehold asset in the event of default under the
Casino lease by the President: $2,500.00 per month; in the
event that no default has occurred at the end of twenty four
months from the Effective Date of the Plan, the Trustee,
in his discretion, may pay these funds in accordance with
subparagraph (a) immediately hereinabove (but such distribution
shall in no event exceed the sum of $60,000); in the event the
Trustee chooses not to distribute any funds accumulated
in
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accordance with the Paragraph, any funds accumulated
hereunder and remaining in this segregated account shall
nevertheless be distributed in accordance with Plan
requirements at the time of the last distribution;
(c) Thereafter, the balance of the monthly payment shall be
paid to AGEL and/or Shamrock or its assignee.
VI. Additional Requirements
A. Under the terms of the President Lease, the President has the right
to purchase the casino under certain conditions or to extend the term of the
President Lease for two additional terms of five years each.
B. In the event the President elects to purchase the casino during the
Plan consummation period, then out of the closing proceeds, there shall be
delivered to the Trustee, as seller, 22.7% of the net sales proceeds for use in
distribution to holders of the AmGam and AGRM claims under the Plan; those funds
shall then be distributed to the holders of such Allowed Claims in accordance
with the terms of the Plan; the remaining funds or 77.3% of the net sales
proceeds shall be paid to AGEL and/or Shamrock or its assignee, net proceeds
being defined as those funds remaining after payment of all closing expenses
related to the sale.
C. In the event the President elects to extend the President Lease for
the first extended term (the "First Extended Term"), or to modify the existing
charter with the consent and approval of the parties hereto, the Trustee shall
continue to receive the lease payments in accordance with the Plan and shall
escrow the same percentage amount described in B above for distribution to
the creditors of the AmGam and AGRM estate over the First Extended Term of
the extended lease.
D. Upon the occurrence of either event in B, or C, above, and the
payment of all requisite distributions, costs and expenses, the Plan shall be
deemed finally consummated.
E. All of the signatories hereto agree to vote for support any Plan of
Liquidation filed in the AmGam and AGRM cases containing the terms and
conditions described herein.
VII. Terms of the Trust
A. The terms of the Trust and the rights and obligations of the trustee
of the Trust (the "Trustee") shall be set forth in a written Trust Agreement
acceptable to the AmGam Committee, the AGRM Committee, AGEL and Shamrock. Any
Trustee selected to serve must be acceptable to AGEL, Shamrock, and the
designated representative (the "Representative") of the holders of AGRM and
AmGam Unsecured Claims entitled to a distribution from the liquidating Trust.
B. The Trust Agreement shall provide that the Trustee shall have no
power to take any actions out of the ordinary course of business with respect
to the interest of the Casino Barge
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or the President Lease held in the Trust without the consent and approval of the
Representative, AGEL and Shamrock or its assignee. Such actions requiring
consent will be generally defined in the Trust Agreement and shall include
any prepayment or other modification of the President Lease, any proposed
sale, transfer or any other disposition of any interest in the Casino Barge,
and the terms of any proposed settlement of any dispute or litigation with
the lessee of the Casino Barge that would result in a reduction of or delay
in receipt of any remaining unpaid lease payments under the current terms of
the President Lease.
C. The Representative, AGEL and Shamrock shall cooperate with each
other in good faith and use their best efforts to reach mutually acceptable
terms with respect to any proposed sale, transfer or other disposition of the
Casino Barge or any settlement of any dispute or litigation with the lessee
of the Casino Barge for which the Trustee requires consent and approval as
set forth in paragraph VII. B above. The Representative, AGEL and Shamrock
or its assignee agree to provide the other party with immediate notice of any
proposed purchase of the whole or partial interest in the Casino Barge. Upon
receiving written notice of the terms of any such proposed sale to which one
party intends to consent, the other party shall have five (5) business days
to respond by expressing in writing whether such proposal is acceptable. If
the parties do not both agree that the proposal is or is not acceptable, the
parties shall meet within five (5) business days, which meeting by agreement
may take place telephonically, of such response to determine whether the
parties can agree on an acceptable counteroffer. If the parties are still
unable to agree to an appropriate course of action, the parties shall submit
the terms of the proposed sale, and the reason for the opposing party's
dissatisfaction with those terms to an independent third party, mutually
acceptable to both parties, whose decision shall be binding on both parties.
Prior to final approval of the terms of this settlement agreement, the
parties shall designate one or more mutually acceptable independent third
parties to fulfill this function in the event of such a disagreement.
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AGREED THIS THE 1st day of November, 1996.
AMGAM ASSOCIATES, DEBTOR
BY: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
__________________________
ITS: Management Committee
AMERICAN GAMING & RESORTS OF
MISSISSIPPI, INC., DEBTOR
BY: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________
ITS: President
AMERICAN GAMING & ENTERTAINMENT,
LTD, A DELAWARE CORP.
BY: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________
ITS: President & CEO
AND
▇▇▇▇ & ▇▇▇▇▇
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________
ITS COUNSEL
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SHAMROCK HOLDINGS GROUP,
INC., A DELAWARE CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
ITS: President
AND
▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
ITS COUNSEL
OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF
AMGAM
ASSOCIATES
BY: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________
ITS: Chairperson
OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF
AMERICAN GAMING AND
RESORTS OF MISSISSIPPI, INC.
BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇
__________________________
ITS: Chairman
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