EXHIBIT 10.25
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 6th day of November, 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
________________________
BY:
ITS:
PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC.
________________________
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
________________________
BY:
ITS:
THE OFFICIAL COMMITTEE OF THE UNSECURED CREDITORS OF AMERICAN GAMING &
RESORTS OF MISSISSIPPI, INC.
________________________
BY:
ITS:
SHAMROCK HOLDINGS, INC.
________________________
BY:
ITS:
Subject to Bankruptcy Court approval in the United States Bankruptcy Court
for the Northern District of New York.
STATE OF ___________________
COUNTY OF __________________
Personally appeared before me, the undersigned authority in and for
the said County and State, within my jurisdiction, the within
_____________________, who acknowledged that he is _____________________,
respectively of PRESIDENT MISSISSIPPI CHARTER CORPORATION, a
_________________ 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 ___ day of
________________________, 1998.
______________________
Notary Public
My Commission Expires:
________________________
STATE OF ___________________
COUNTY OF __________________
Personally appeared before me, the undersigned authority in and for
the said County and State, within my jurisdiction, the within
_____________________, who acknowledged that he is _____________________,
respectively of PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC., a
_________________ 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 ____ day
of ________________________, 1998.
_____________________
Notary Public
My Commission Expires:
________________________
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
