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HomeMy WebLinkAbout1993-41 - Amendments to Contract and Lease with Missouri Gaming Company11065; 07/13/93 BILL A1O. 9~-~/ ORDINANCE N0. 9~ AN ORDINANCE AMENDING THE CONTRACT AND LEASE WITH MISSOURI GAMING COP9PANY AND RATIFYING THE CONTRACT AND LEASE WITH THE MISSOURI GAMING COMPANY AS AMENDED. WHEREAS, the Board of_ Aldermen on the 3rd day of June, 1993, adopted Ordinance 93-26 authorizing the City to enter int=o a contract and lease with the Missouri Gaming Company; and WHEREAS, the City did enter into such contract and lease with Missouri Gaming Company on June 3, 1993; and WHEREAS, the City previously amended its contract with the Missouri Gaming Company to permit it to have until August 17, 1993 to file its zoning application; and WHEREAS, the attachments "1" and "2" to this ordinance have been determined by the City to be in the best interests of the City's residents. NO6T, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: Section 1. The amendments to this contract and lease with Missouri Gaming Company which establish the Escrow Agreement designated Amendment "2" is hereby adopted and made a part of this ordinance as though fully set out therein. Section 2. The amendments to this contract marked Amendment "3" expanding paragraph 5(c) is made a part of this contract as though fully set out therein. Section 3. The City intends by this ordinance to ratify the entire contract and lease with Missouri Gaming Company including the amendments hereto attached. Section 4. The Mayor and City Clerk are directed to take such further action as may be necessary to implement the intent of this ordinance. PASSED THIS ~ ~ DAY OF , 1993. ATTE T: ,~~J CI`PY CLERK QQ~~~''-- AA/ M A~~~~ APPROVED THIS aD DAY OF , 1993. ~~ ~`~-~- MAYOR ESCROW AGREEMENT This Escrow Agreement (the "Escrow Agreement") made and entered into this day of 1993, by and among The Missouri Gaming Company ("MGC"), a Missouri corporation, the City of Riverside, Missouri, a political subdivision of the State of Missouri ("City") and Donaldson, Lufkin and Jenrette ("Escrow Agent"). W I T N E S S E T H• WHEREAS, on June 7, 1993 the City and MGC entered into an agreement pursuant to which MGC, subject to certain conditions, agreed to advance certain monies to the City constituting advance rent in the amount of $5,000,000, a park grant in the amount of $1,000,000 and a golf course grant in the amount of $600,000 (collectively, these monies constitute the "Obligation"). WHEREAS, as a part of the consideration for the reduction of the required performance bond as required in the Principal Agreement (as hereinafter defined), MGC has agreed to deposit the Obligation with the Escrow Agent, and WHEREAS, the parties desire the execution and delivery of an Escrow Agreement, providing for the escrow of the Obligation, and WHEREAS, MGC and City desire that Donaldson, Lufkin and Jenrette act as escrow agent, and Escrow Agent is willing to do so, all upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto agree as follows: 1. Incorporation by Reference. Reference is made to that certain agreement dated as of June 7, 1993 by and between the City of Riverside, Missouri, the Missouri Gaming Company and Argosy Gaming Company (the "Principal Agreement") the terms and conditions of which are incorporated herein by reference. Unless otherwise defined herein, capitalized terms shall have the meaning ascribed to such term in the Principal Agreement. 2. Purpose. The purpose of this escrow is to collateralize the Obligations of MGC to City under the Agreement. The City is hereby granted a first priority security interest in the Escrowed Funds pursuant to the terms of this Escrow Agreement, and the security interest granted shall be superior to the claims of any other creditors including but not limited to the claims of Escrow Agent. Subject to Section 7 hereof, the City shall be entitled to the Escrowed Funds in the event MGC breaches or violates, in any material respect, its obligations to the City under the Agreement. 3. Damages for Breach.. In the event MGC shall in any manner obstruct the payment of the Escrowed Funds to the City, then MGC shall be liable for any damages sustained, including but not limited to the payment of attorneys' fees incurred to obtain release of the funds. 4. Appointment. City and MGC hereby jointly appoint Donaldson, Lufkin, and Jenrette Escrow Agent pursuant to and for the purposes of this Escrow Ageement. Simultaneously with the execution of this Escrow Agreement, MGC has caused to be delivered and deposited with the Escrow Agent $6.6 million in cash (or 2 securities of current market value of $6.6 million) to be held in escrow pursuant to the terms and conditions hereof. 5. AcceAtance; Interest on Escrowed Funds. Escrow Agent hereby acknowledges receipt of the Escrowed Funds and agrees to act as escrow agent and to hold and dispose of all property deposited with it pursuant to this Escrow Agreement. It is specifically agreed that, so long as the market value of the securities and cash in the account equals or exceeds $6,600,000.00, then MGC shall be entitled to all interest owed on the Escrowed Funds during the continuation of this Escrow Agreement. 6. Restrictions on Investments. It is mutually agreed that MGC shall not invest the Escrowed Funds other than in a manner consistent with their present investment policy of AAA rated investments or their equivalent. 7. Disbursement of Funds. The Escrow Agent is authorized to disburse the Obligations as follows: (i) in accordance with the instructions set forth in any written letter of direction executed by both MGC and the City; (ii) upon final order of the circuit court of the county of Platte; (iii) upon the Commencement Date, pursuant to a written letter of direction from the City. 8. Termination of the Escrow Agreement and Return of Funds. This Escrow Agreement will terminate and the Obligations shall be returned to MGC upon the failure of MGC to become licensed by the Missouri Gaming Commission pursuant to its initial application for licensure or the failure by the City to satisfy any material term 3 or condition which impacts the ability of the operator to proceed in the fashion set forth in the Agreement. 9. Termination. This Escrow Agreement shall terminate when the Escrowed Funds have been fully released or distributed in accordance with the provisions of this Escrow Agreement or upon MGC's substantial fulfillment of its obligations under the Agreement. 10. Duties. The duties of the Escrow Agent are only as herein specifically provided and are purely ministerial in nature and not discretionary. Escrow Agent shall have no oblitation or liability hereunder except as a depository to retain the Escrowed Funds and to dispose of the same in accordance with the terms hereof. Escrow Agent shall not be liable for default by any party hereto because of such party's failure to perform any duties or obligations said party has agreed to perform, and shall have no responsibility, to seek performance by any party. 11. Limitation of Liability. Escrow Agent shall not be liable in any respect on account of the identity, authority, or rights of persons executing or delivering, or purporting to execute or deliver, any document or item, and may rely absolutely and be fully protected in acting upon any item, document, or other writing believed by it to be authentic in performing its duties hereunder. Escrow Agent may, as a condition to the disbursement of money or property, require from the payee or recipient a receipt thereof, and, upon final payment or distribution, require a release from any liability arising out of its execution or performance of this Escrow Agreement. 4 12. Limitation of Authority. The Escrow Agent shall have the following authority: (a) Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which Escrow Agent believes in good faith to be genuine and what it purports to be, including, but not limited to, items directing investment or non-investment of funds, items requesting or authorizing release, disbursement or retainage of the subject matter of this Escrow Agreement and items amending the terms of this Escrow Agreement. (b) In the event of any disagreement between any of the parties to this Escrow Agreement, or between any of them and any other person, resulting in adverse claims or demands being made in connection with the matters covered by this Escrow Agreement, or in the event that Escrow Agent, in good faith, shall be in doubt as to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Escrow Agent shall be entitled to continue so to refrain from acting until (a) the rights of all interested parties hall have been fully and finally adjudicated by the court of the agreed jurisdiction, or (b) all differences shall have been adjudged and all doubt resolved by agreement among all of the interested persons, and Escrow Agent 5 shall have been notified thereof in writing signed by all such persons. Notwithstanding the preceding, Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court, whether with or without jurisdiction, and Escrow Agent is hereby authorized in its sole discretion, to comply with and obey (and shall have no liability to any person for so doing) any such orders, judgments, decrees or levies which Escrow Agent is advised by legal counsel of its own choosing is binding upon it. The rights of Escrow Agent under this subparagraph are cumulative of all other rights which it may have by law or otherwise. (c) Escrow Agent shall have no liability for any loss arising from any cause beyond its control, including (but not limited to) the following: (a) any delay, error, omission or default of any mail, telegraph, cable, or wireless agency or operator; and (b) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. (d) Without in any way limiting any other provision of this Escrow Agreement, it is expressly understood and agreed that Escrow Agent shall be under no duty or obligation to give any notice, or to do or to omit the doing of any action or anything with respect to the subject matter hereof, except to receive, hold and deliver the same in accordance with the terms of this Escrow Agreement. (e) In the event that any controversy should arise among the parties with respect to this Escrow Agreement, or should the Escrow Agent resign and the parties fail to select another Escrow -6- Agent to act in its stead, the Escrow Agent shall have the right to institute a bill of interpleader in the court of agreed jurisdiction to determine the rights of the parties. 13. Fees. Escrow Agent shall be entitled to reasonable compensation for its services hereunder. Expenses of the Escrow Agent shall be paid by MGC. 14. Reolacement Escrow Agent. Escrow Agent may resign at any time by giving 5 days' prior written notice to all parties hereto, but will continue to serve until a successor is appointed. If Escrow Agent resigns, or for any reason is unable to continue to serve as escrow agent or fails to continue to serve as agent hereunder, MGC may, in writing, appoint a successor agent, subject to such escrow agent being acceptable to City, which acceptance will not be unreasonably withheld. Any successor escrow agent will have the same rights and duties as the original Escrow Agent and be governed by the terms and conditions set forth in this Escrow Agreement, including but not limited to the terms and conditions relating to resignation and succession set forth in this paragraph 14. 15. Miscellaneous. (a) Any notice, demand or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if and when personally delivered, or delivered by a nationally recognized overnight courier service, or sent by facsimile transmittal (provided that an original copy of any such notice, demand or communication is delivered by a nationally recognized overnight courier service the next business day after -7- such facsimile transmittal), or on the second business day after being deposited in United States registered or certified mail, postage prepaid, and addressed to a party at its address set forth below or to such other address the party to receive such notice may have designated to all other parties by notice in accordance herewith: If to Missouri: Missouri Gaming Company 219 Piasa Street Alton, Illinois 62002 Fax No. (618) 474-7636 With a copy to: Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 Attn: Joseph A. Walsh, Jr. If to City: City Clerk City of Riverside P.O. Box 9135 4500 High Drive Riverside, MO 64168 Telephone No. (816) 741-3993 With a copy to: Don Witt Witt & Hicklin, P.C. P.O. Box 157 4th & Main Platte City, MO 64079 Fax No. (816) 431-3009 If to Escrow Agent: Donaldson, Lufkin & Jenrette 140 Broadway 32nd floor New York, New York 10005 -8- or to such other person or address as such party may direct the other parties in writing by notice in accordance herewith. (b) This Escrow Agreement may not be modified or amended except in a writing signed by all parties hereto. (c) Neither this Escrow Agreement, nor any of the rights, duties or obligations of any party hereunder, may be assigned or otherwise delegated by such party without the prior written consent of all other parties hereto, which will not be unreasonably withheld. (d) This Escrow Agreement shall be binding upon the successors and permitted assigns of each party. (e) This Escrow Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Missouri applicable to agreements made and to be performed entirely within such State. The invalidity or unenforceability of any provision of this Escrow Agreement shall not affect the validity or enforceability of the remaining provisions hereof. (f) This Escrow Agreement may be executed in counterparts and the counterparts, taken together, shall be deemed to form one original instrument. (g) The additional provisions relating to the Escrow Agent attached hereto as Exhibit A are incorporated herein by reference and made a part hereof, and together with the representation, covenants and indemnifications contained in paragraphs 10 and 11, shall survive the termination of this Escrow Agreement. -9- IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly executed as of the day and year first above written. CITY OF RIVERSIDE, MISSOURI BY ~ 8.~~, Mayor ATTEST: City Clerk MISSOURI G COM_pANY By: ATTEST: cre y Donal ufkin & Jenrette Securities Corporation hereby dCCepts its duties as Escrow Agent hereunder, sub;ect to the terms and conditions herein set out and acknowledges receipt of the Escrowed Funds. inomas ~ieg er, ~C't~tary Title: -10- AMENDMENT N0. 3 Paragraph 5(c) is hereby amended by the following additional wocds: "The City shall have a first priority security interest in the $5,000,000. payable in cash as advance rent to the City to secure Missouri's payment of all sums due City under the terms of this agreement, whether said deposit is with an independent escrow agent or with the City and the City may expend all or any part of said X5,000,000. at any time after it has been deposited with the City," M~~~ ATT ST: ~ /f ~,~~rGZtX-~~ CI Y CLEKK ARGOSY GAMING COMPANY ATTEST: 1~~ff ~ ..~~- MISSOURI GAMING COMPANY BY L ~ «.«~ ATTEST: fl ~ -~ _~ AMENDMENT NO. 3 Paragraph 5(c) is hereby amended by the following additional words: "The City shall have a first priority security interest in the $5,000,000. payable in cash as advance rent to the City t.o secure Missouri's payment of all sums due City under the terms of this agreement, whether said deposit is with an independent escrow agent or with the City and the City may expend all or any part of said $5,000,000, at any time after it has been deposited with the City." /~~ B~~ MAYOR ATT ST: CI Y CLERK ARGOSY GAMING COMPANY By ATTEST: MISSOURI GAMING COMPANY By ATTEST: