Attached files
AMENDMENT
NO. 2 AND WAIVER TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER TO
PURCHASE AGREEMENT is made as of November 30, 2009 (this “Amendment and Waiver”) between
GRANT THORNTON LIMITED
in its capacity as interim receiver and receiver and manager of EGC
Holdings Ltd. (“EGC
Holdings”) and not in its personal capacity (“Receiver”), and CENTURY CASINOS EUROPE GMBH
(“Purchaser”).
WHEREAS,
Receiver and Purchaser are parties to a Purchase Agreement made as of November
6, 2009, as amended by that Amendment No. 1 to Purchase Agreement made as of
November 24, 2009 (together, the “Purchase
Agreement”).
WHEREAS,
Receiver has requested that Purchaser waive its rights to terminate the Purchase
Agreement pursuant to and in accordance with the provisions of Section 10.2
thereof, and Purchaser has agreed, subject to the terms and conditions hereof
and the limitations contained herein.
WHEREAS,
Receiver and Purchaser wish to further amend the Purchase Agreement upon the
terms and subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements in this Amendment, Receiver
and Purchaser agree as follows:
1. Definitions
Capitalized terms not defined herein
shall have the meanings ascribed to such terms in the Purchase
Agreement.
2. Amendments
2.1 Section
1.1(k) of the Purchase Agreement shall be deleted in its entirety and the
following inserted in substitution therefor:
““Due Diligence Period” means
the period commencing on the Effective Date and ending on December 11,
2009.”
2.2 Section
10.4 of the Purchase Agreement shall be deleted in its entirety and the
following inserted in substitution therefor:
“10.4 No
later than 5.00 p.m., Vancouver time, on November 30, 2009, Purchaser shall
deliver to Receiver a true and complete list of the Purchaser Approved Retained
Liabilities (the “List”). Receiver
acknowledges that the Purchaser Approved Retained Liabilities will not include the
Consulting Agreement dated October 2, 2007, as amended, between Silver Dollar
and Frank Sisson’s Silver Dollar Entertainment Ltd.”
2.3 Section
16.2(c) of the Purchase Agreement shall be amended by the deletion of “and” at
the end of such Section, and Section 16.2(d) of the Purchase Agreement shall be
deleted in its entirety and the following inserted in substitution
therefor:
|
|
“(d)
|
(i) an
originally executed and registrable discharge of the
mortgage registered as instrument number 071 499 683
registered in favor of 1144515 Alberta Ltd as mortgagee, together with
written authorization from Fortress and 1144515 Alberta Ltd. for
Purchaser to submit same for registration; (ii) an
originally executed and registrable discharge of the
caveat registered as instrument number 071 499 684 registered in
favor of 1144515 Alberta Ltd as caveator, together with written
authorization from Fortress and 1144515 Alberta Ltd. for Purchaser to
file the same; (iii) a copy of the irrevocable direction to McCarthy
Tétrault LLP to discharge that certain Security Agreement registered at
the Alberta Personal Property Registry as registration
number 07100111116 in favor of Fortress Credit Corp. as to Silver
Dollar and EGC Properties; (iv) a copy of the irrevocable direction
to McCarthy Tétrault LLP to discharge that certain Land Charge
registered at the Alberta Personal Property Registry as
registration number 07100111157 in favor of Fortress Credit Corp. as
to Silver Dollar and EGC Properties; and (v) a discharge of any other
security registrations by Fortress or any affiliate thereof as to Silver
Dollar and EGC Properties; and
|
|
|
(e)
|
such
other documents and instruments as reasonably required by Purchaser
to give effect to the transactions contemplated
hereby.”
|
3. Waiver
3.1 Subject
to Section 3.2 below, Purchaser hereby waives its rights under Section 10.2 of
the Purchase Agreement to terminate the Purchase Agreement; provided that
Purchaser shall retain the right to terminate the Purchase Agreement under
Section 10.2 if Purchaser is not satisfied in its sole discretion with the
results of Purchaser’s due diligence with respect to tax matters relating to
intercompany indebtedness of the Subsidiaries.
3.2 Notwithstanding
the waiver by Purchaser pursuant to Section 3.1 above, Receiver shall deliver to
Century during the Due Diligence Period such information concerning the current
amounts of the intercompany debts owed by Silver Dollar and EGC Properties, the
origins thereof and such other information relating thereto as Purchaser may
reasonably request, in each case to the extent the Receiver has such information
in its possession, or is hereafter able to obtain from Evergreen.
4. Effectiveness
of Purchase Agreement
The
Purchase Agreement as amended hereby, and subject to the waiver contained
herein, shall continue in full force and effect.
IN
WITNESS WHEREOF the parties have executed this Amendment and Waiver effective as
of the day and year first above written notwithstanding the date of
execution.
|
GRANT THORNTON LIMITED
in its capacity as interim receiver and receiver and manager of EGC
Holdings Ltd., and not in its personal capacity
|
CENTURY
CASINOS EUROPE GMBH
|
|||
|
Per:
|
/s/ Mark Wentzell |
Per:
|
/s/ Larry Hannappel | |
|
Authorized
Signatory
|
Authorized
Signatory
|
|||
| Mark Wentzell CA,CIRP | Larry Hannappel | |||
|
Name
|
Name
|
|||
| Senior Vice President | Authorized Signatory | |||
|
Title
|
Title
|
|||
| 30 November 2009 | 30 November 2009 | |||
|
Date
of Execution
|
Date
of Execution
|
|||
The
undersigned, as solicitors for Grant Thornton Limited in its capacity as interim
receiver and receiver and manager of EGC Holdings Ltd., and not in its personal
capacity, (i) acknowledges the terms of the foregoing Amendment and Waiver, and
(ii) confirms that it is not released from its obligations under Sections 3 and
6 of the Purchase Agreement relating to the Deposit and the Section 3.1(b)
Amount.
FASKEN
MARTINEAU DUMOULIN LLP
|
Per:
|
/s/ John Grieve |
|
Authorized
Signatory
|
|
| John Grieve | |
|
Name
|
|
| Partner | |
|
Title
|
|
| 30 November 2009 | |
|
Date
of Execution
|
Fortress
agrees that subject to satisfaction (or express written waiver by Fortress) of
each of the following conditions, Fortress shall execute the Fortress Release
and deliver the Fortress Release to Purchaser at the Closing: (i) the
Vesting Order obtained by the Receiver includes a provision that the release of
any claims of Fortress against the Subsidiaries and the liens of Fortress in the
Assets and the Shares is without prejudice to and does not in any way adversely
affect the claims of Fortress against, and the liens of Fortress in the assets
of, any of the other Evergreen subsidiaries, and (ii) Fortress receives from the
Receiver, acting on behalf of such other Evergreen subsidiaries, reaffirmations
of the obligations of such other Evergreen subsidiaries to Fortress which
reaffirmations are in form acceptable to Fortress and are executed and delivered
pursuant to such court authorization as Fortress, the Receiver or its counsel
may deem necessary.
FORTRESS
CREDIT CORP., as Agent for Fortress Credit Opportunities I LP and Fortress
Credit Funding II LP
|
By::
|
/s/ Constantine Dakolias |
|
|
|
| Name: | Constantine Dakolias |
|
|
|
| Title: | President |
|
|
|
| Date of Execution: | 30 November 2009 |
|
|