Exhibit 10.1
EXECUTION VERSION
AMENDMENT TO THE
PURCHASE AGREEMENT
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Amendment, dated as of October 5, 2009 (the "Amendment"), to
the Purchase Agreement, dated as of August 3, 2009 (as amended hereby, the
"Purchase Agreement"), by and among ▇▇▇▇▇ Entertainment Resorts Holdings, L.P.,
a Delaware limited partnership (the "Partnership"), ▇▇▇▇▇ Entertainment Resorts,
Inc., a Delaware corporation and the current sole general partner of the
Partnership ("TER"), BNAC, Inc., a Texas corporation ("BNAC"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ("▇▇▇▇▇" and, together with BNAC, the "New Partners").
W I T N E S S E T H :
WHEREAS, the Partnership, TER and the New Partners have
heretofore entered into the Purchase Agreement providing, among other things,
for the purchase of the TER Shares and the Partnership Interests by the New
Partners upon the terms and subject to the conditions set forth therein;
WHEREAS, the New Partners are willing to contribute,
indirectly and directly, additional capital of $13,937,300 to the Partnership
for the purpose of funding the payment of such amount to the holders of the
Second Lien Note Claims (as defined in the Bankruptcy Plan); and
WHEREAS, in accordance with Section 8.5 of the Purchase
Agreement, the Partnership, TER and the New Partners have agreed to amend
certain provisions of the Purchase Agreement as provided in this Amendment;
NOW, THEREFORE, in consideration of the premises, covenants
and agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein,
capitalized terms that are defined in the Purchase Agreement and used herein
shall have the meanings set forth in the Purchase Agreement.
SECTION 2. Amendments to Recitals.
(a) Eleventh Recital. The eleventh recital of the Purchase
Agreement, which begins with "WHEREAS, in addition to being the sole general
partner of the Partnership", is hereby amended by deleting it in its entirety
and replacing it with the following:
"WHEREAS, in addition to being the sole general partner of the
Partnership, TER is currently a limited partner of the Partnership and,
pursuant to the Bankruptcy Plan and on the terms and subject to the
conditions set forth herein, among other things, (i) all of the
outstanding capital stock and other equity interests of TER will be
cancelled and extinguished, and thereby no longer outstanding, (ii)
▇▇▇▇▇ will make a capital contribution, directly or indirectly, to TER
(the "▇▇▇▇▇ Stock Contribution") consisting of cash in the amount of
$1,025,436 in exchange for which capital stock of TER will be issued to
▇▇▇▇▇ and/or Persons designated by ▇▇▇▇▇ such that ▇▇▇▇▇ will
beneficially own all of the issued and outstanding capital stock of
TER, and (iii) TER, as so beneficially owned by ▇▇▇▇▇, will cease to be
the general partner of the Partnership as of the Second Closing Date
but will continue to be a limited partner of the Partnership;"
(b) Twelfth Recital. The twelfth recital of the Purchase
Agreement, which begins with "WHEREAS, in connection with the Bankruptcy Plan,
on the terms and subject to the conditions set forth herein, at the First
Closing", is hereby amended by deleting it in its entirety and replacing it with
the following:
"WHEREAS, in connection with the Bankruptcy Plan, on the terms
and subject to the conditions set forth herein, at the First Closing
(as hereinafter defined), ▇▇▇▇▇, through TER, TCI 2 (as hereinafter
defined), and Ace (as hereinafter defined), will make capital
contributions (collectively, the "First ▇▇▇▇▇ Contribution") to the
Partnership consisting of cash in the amount of $1,139,373;"
(c) Thirteenth Recital. The thirteenth recital of the Purchase
Agreement, which begins with "WHEREAS, in connection with the Bankruptcy Plan,
on the terms and subject to the conditions set forth herein, at the Second
Closing", is hereby amended by deleting it in its entirety and replacing it with
the following:
"WHEREAS, in connection with the Bankruptcy Plan, on the terms
and subject to the conditions set forth herein, at the Second Closing
(as hereinafter defined), (i) BNAC, through Newco (as hereinafter
defined) and New GP (as hereinafter defined), will make a capital
contribution (the "BNAC Contribution") to the Partnership consisting of
cash in the amount of $56,980,043, and (ii) ▇▇▇▇▇, directly and through
Newco and New GP, will make a capital contribution (the "Second ▇▇▇▇▇
Contribution", and together with the First ▇▇▇▇▇ Contribution and the
BNAC Contribution, the "Contributions") to the Partnership consisting
of cash in the amount of $55,817,884; and"
SECTION 3. Amendments to Certain Defined Terms.
(a) "Ace Contribution". The definition of "Ace Contribution"
in Section 1.1 of the Purchase Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
""Ace Contribution" shall mean $113,937 of cash to be
contributed by Ace to the Partnership."
(b) "BNAC GP Contribution". The definition of "BNAC GP
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
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""BNAC GP Contribution" shall mean $569,800 of cash to be
contributed, directly or indirectly, by BNAC to New GP."
(c) "BNAC Newco Contribution". The definition of "BNAC Newco
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
""BNAC Newco Contribution" shall mean $56,410,243 of cash to
be contributed, directly or indirectly, by BNAC to Newco."
(d) "New GP Contribution". The definition of "New GP
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
""New GP Contribution" shall mean a capital contribution by
New GP to the Partnership of cash in the amount of $1,139,373."
(e) "Newco Contribution". The definition of "Newco
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
""Newco Contribution" shall mean $71,405,371 of cash to be
contributed by Newco to the Partnership."
(f) "TCI 2 Contribution". The definition of "TCI 2
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
""TCI 2 Contribution" shall mean $113,937 of cash to be
contributed by TCI 2 to the Partnership."
(g) "TER Contribution". The definition of "TER Contribution"
in Section 1.1 of the Purchase Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
""TER Contribution" shall mean $911,499 of cash to be
contributed by TER to the Partnership."
(h) "▇▇▇▇▇ Direct Contribution". The definition of "▇▇▇▇▇
Direct Contribution" in Section 1.1 of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
""▇▇▇▇▇ Direct Contribution" shall mean $40,253,183 of cash to
be contributed by ▇▇▇▇▇ to the Partnership."
(i) "▇▇▇▇▇ ▇▇ Contribution". The definition of "▇▇▇▇▇ ▇▇
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
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""▇▇▇▇▇ ▇▇ Contribution" shall mean $569,573 of cash to be
contributed by ▇▇▇▇▇, directly or indirectly, to New GP."
(j) "▇▇▇▇▇ Newco Contribution". The definition of "▇▇▇▇▇ Newco
Contribution" in Section 1.1 of the Purchase Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
""▇▇▇▇▇ Newco Contribution" shall mean $14,995,128 of cash to
be contributed by ▇▇▇▇▇ to Newco."
SECTION 4. Amendment to Section 5.4. Section 5.4 of the
Purchase Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
"Section 5.4 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Filing. TER, the Partnership
and each of the New Partners shall use their respective commercially
reasonable efforts to (a) comply with the requirements of the HSR Act,
to the extent applicable to the transactions contemplated by this
Agreement, and (b) if and when it is determined that any filings are
required to be made by such party pursuant to the HSR Act, make such
party's required filings thereunder in a reasonably prompt fashion so
as not to cause a delay of the First Closing, after taking into account
the applicable waiting period required by the HSR Act. Each party
hereto agrees to use its commercially reasonable efforts to satisfy any
requests for additional information imposed under the HSR Act in
connection with the transactions contemplated hereby as soon as
practicable and, if requested by any party, to request early
termination of any applicable waiting period."
SECTION 5. Addition of Section 5.14. Article V of the Purchase
Agreement is hereby amended by adding at the end thereof the following as a new
Section 5.14 of the Purchase Agreement:
"Section 5.14. Payment to Second Lien Note Claims Holders. The
Partnership shall use $13,937,300 of the aggregate capital
contributions being made to the Partnership pursuant to this Agreement
to fund the payment of $13,937,300 to the holders of the Second Lien
Note Claims (as defined in the Bankruptcy Plan) in accordance with the
Bankruptcy Plan in connection with the consummation of the Bankruptcy
Plan and the Second Closing hereunder."
SECTION 6. Amendments to Section 7.1.
(a) Section 7.1(b). Section 7.1(b) of the Purchase Agreement
is hereby amended by deleting it in its entirety and replacing it with the
following:
"(b) by BNAC or ▇▇▇▇▇ after January 15, 2010 (the
"Confirmation Order Deadline") if the Confirmation Order, in form and
substance acceptable to BNAC, ▇▇▇▇▇ and the Partnership, has not been
entered by the Bankruptcy Court and become a Final Order on or before
the Confirmation Order Deadline;"
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(b) Section 7.1(c). Section 7.1(c) of the Purchase Agreement
is hereby amended by deleting it in its entirety and replacing it with the
following:
"(c) by the Partnership after March 1, 2010 (the "Partnership
Confirmation Order Deadline") if the Confirmation Order, in form and
substance acceptable to BNAC, ▇▇▇▇▇ and the Partnership, has not been
entered by the Bankruptcy Court and become a Final Order on or before
the Partnership Confirmation Order Deadline; provided, however, that
the Partnership may only terminate this Agreement pursuant to this
Section 7.1(c) if it has undertaken good faith efforts to prosecute the
Plan and obtain entry of the Confirmation Order in accordance with the
terms hereof;"
SECTION 7. Amendment to Exhibit B to Purchase Agreement. The
second recital of Exhibit B (the Escrow Agreement) to the Purchase Agreement,
which begins with "WHEREAS, pursuant to the Purchase Agreement, on the date
hereof", is hereby amended by deleting it in its entirety and replacing it with
the following:
"WHEREAS, pursuant to the Purchase Agreement, on the date
hereof, (i) ▇▇▇▇▇ is delivering to the Escrow Agent an amount equal to
$40,253,183 (the "▇▇▇▇▇ CONTRIBUTION"), (ii) Newco is delivering to the
Escrow Agent an amount equal to the $71,405,371 (the "NEWCO
CONTRIBUTION"), and (ii) New GP is delivering to the Escrow Agent an
amount equal to $1,139,373 (the "NEW GP CONTRIBUTION" and, together
with the ▇▇▇▇▇ Contribution and the Newco Contribution, the
"CONTRIBUTIONS");"
SECTION 8. Consent to Filing of Plan and Disclosure Statement.
Pursuant to Section 5.5(b) of the Purchase Agreement, each New Partner hereby
consents to the Debtors filing with the Bankruptcy Court of an Amended and
Restated Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code
(the "Restated Bankruptcy Plan"), in the form attached as Exhibit A hereto, and
a Second Amended and Restated Disclosure Statement with respect to the Restated
Bankruptcy Plan, in the form attached as Exhibit B hereto.
SECTION 9. Effect of Amendment. Except as expressly modified
by this Amendment, all of the terms, covenants, agreements, conditions and other
provisions of the Purchase Agreement shall remain in full force and effect in
accordance with their respective terms. This Amendment shall not constitute an
amendment or waiver of any provision of the Purchase Agreement except as
expressly set forth herein. Upon the execution and delivery of this Amendment,
the Purchase Agreement shall thereupon be deemed to be amended and supplemented
as hereinabove set forth as fully and with the same effect as if the amendments
and supplements made hereby were originally set forth in the Purchase Agreement,
and this Amendment and the Purchase Agreement shall henceforth be read, taken
and construed as one and the same instrument, but such amendments and
supplements shall not operate so as to render invalid or improper any action
heretofore taken in accordance with the Purchase Agreement. As used in the
Purchase Agreement, the terms "this Agreement," "herein," "hereinafter,"
"hereto," and words of similar import shall mean and refer to, from and after
the date of this Amendment, unless the context requires otherwise, the Purchase
Agreement as amended by this Amendment. For the avoidance of doubt, references
to the phrases "the date of this Agreement" or "the date hereof", wherever used
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in the Purchase Agreement, as amended by this Amendment, shall mean August 3,
2009. In the event of any inconsistency between this Amendment and the Purchase
Agreement with respect to the matters set forth herein, this Amendment shall
take precedence.
SECTION 10. Headings. The headings of the paragraphs of this
Amendment are inserted for convenience only and shall not affect the
interpretation hereof.
SECTION 11. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument. To
the extent permitted by Law, in pleading or proving any provision of this
Amendment, it shall not be necessary to produce more than one set of such
counterparts.
SECTION 12. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law; provided, however, that
each of the provisions of this Amendment is subject to and shall be enforced in
compliance with the Gaming Laws.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
PARTNERSHIP:
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▇▇▇▇▇ ENTERTAINMENT RESORTS HOLDINGS, L.P.
By: ▇▇▇▇▇ Entertainment Resorts, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
TER:
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▇▇▇▇▇ ENTERTAINMENT RESORTS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
NEW PARTNERS:
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BNAC, INC.
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇
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Name: D. ▇▇▇▇▇▇ ▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
[Amendment to the Purchase Agreement dated as of October 5, 2009]
EXHIBIT A
FORM OF AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION
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EXHIBIT B
FORM OF SECOND AMENDED AND RESTATED DISCLOSURE STATEMENT
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