GEM INDIVIDUALS' NOTES ESCROW AGREEMENT AND ESCROW
INSTRUCTIONS
This GEM INDIVIDUALS' NOTES ESCROW AGREEMENT AND
ESCROW INSTRUCTIONS (this "Agreement") is made as of
September 27, 1996, by and between AMERISTAR CASINOS,
INC., a Nevada corporation ("Ameristar"), STEVEN W.
REBEIL, an individual and in his capacity as Trustee
of the Karizma Trust created under that certain Trust
Agreement, dated July 2, 1991, as amended
("Rebeil"), and DOMINIC J. MAGLIARDITI, an
individual
("Magliarditi").
RECITALS
A. Ameristar, Gem Gaming, Inc., a Nevada
corporation ("Gem"), Ameristar Casino Las, Vegas, Inc., a
Nevada corporation ("ACLV"), Rebeil and Magliarditi have
entered into that certain Merger Agreement dated as of May
31, 1996, as amended by that certain First Amendment to
Merger Agreement dated July 2, 1996, as further
amended by that certain Second Amendment to Merger
Agreement dated as of September 27, 1996 (the
"Merger
Agreement"), whereby Gem has agreed to merge into and with
ACLV on the terms and conditions and for the consideration
set forth therein.
B. The Merger Agreement contemplates that the
parties
will enter into this Agreement to provide for the
irrevocable
procedures and mechanics by which the Gem Individuals'
Notes
specified in the Merger Agreement will be held and,
if applicable, completed and delivered to Rebeil and
Magliarditi.
C. All capitalized terms used herein
without definition shall have the meaning assigned thereto
in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing premises and the covenants set forth herein and
in the Agreement and other good and valuable consideration,
the parties agree as follows:
ARTICLE 1 - Deliveries to Escrow Agent
1.1 At the Closing, Ameristar shall deliver to
First Security Bank of Nevada (Attn: David Smith,
President), as escrow agent (the "Escrow Agent"), each of
the following:
(a) a promissory note in the form attached
hereto as Schedule 1, which shall continue to have blanks
for the "date of this note" and the "principal amount" (the
"Rebeil Note");
(b) a promissory note in the form attached
hereto as Schedule 2, which shall have the "principal
amount" filled in with an amount equal to the product
of 7,270,408 shares multiplied by the Average 10-Day
Closing Price as of the Closing Date but which shall
continue to have a blank for the "Settlement Date" (the
"Alternative Rebeil Note");
(c) a promissory note in the form attached
hereto as Schedule 3, which shall continue to have a blank
for the "date of this note" and the "principal amount"
(the "Magliarditi
Note"); and
(d) a promissory note in the form attached
hereto as Schedule 4, which shall have the "principal
amount" filled in with an amount equal to the product of
229,592 shares multiplied by the Average 10-Day Closing
Price as of the Closing Date but which shall continue to
have a blank for the "Settlement Date") (the "Alternative
Magliarditi Note").
Escrow Agent shall handle the Rebeil Note, the Alternative
Rebeil Note, the Magliarditi Note and the Alternative
Magliarditi Note strictly and exclusively in accordance
with the terms and provisions of this Agreement at all
times. Escrow Agent shall not ever act in any way or
manner contrary to this Agreement unless instructed to do
so in a writing duly signed by Ameristar, Rebeil and
Magliarditi.
ARTICLE 2 - Disposition of Rebeil Note and Magliarditi Note
2.1 Cancellation of Rebeil Note and Magliarditi
Note Following Sale of All Post-Merger Offering Stock. Upon
receiving a Note Cancellation Notice in the form of
Schedule 5 attached
hereto, duly executed by an officer of Ameristar, Rebeil
and Magliarditi, Escrow Agent shall mark the Magliarditi
Note, the Alternative Magliarditi Note, the Rebeil Note and
the Alternative Rebeil Note "CANCELLED" and deliver all
such documents to Ameristar as specified in the Note
Cancellation Notice.
2.2 Completion and Delivery of Rebeil Note
and Magliarditi Note Following Sale of Less than all
Post-Merger Offering Stock.
(a) Rebeil. Upon receiving a Rebeil
Note Completion Notice in the form of Schedule 6 attached
hereto, duly executed by an officer of Ameristar and
Rebeil (or executed by Rebeil alone, if Rebeil and Escrow
Agent have not received from Ameristar its proposed notice
in the form of Schedule 6 attached hereto within three
(3) Business Days following the Settlement Date that the
Escrow Agent is advised of by the Underwriter), Escrow
Agent shall (i) complete the "Principal Amount" of the
Rebeil Note so that such amount equals the amount set
forth as the "PRINCIPAL AMOUNT OF REBEIL NOTE" set forth in
paragraph 4 of the Rebeil Note Completion Notice, (ii) date
the Rebeil Note as of the Settlement Date identified in
the Rebeil Note Completion Notice, (iii) deliver the Rebeil
Note to Rebeil as specified in the Rebeil Note Completion
Notice and (iv) mark the Alternative Rebeil Note as
"CANCELLED" and return the Alternative Rebeil Note to
Ameristar.
(b) Magliarditi. Upon receiving a
Magliarditi Note Completion Notice in the form of Schedule 7
attached hereto, duly executed by an officer of Ameristar
and Magliarditi (or executed by Magliarditi alone, if
Magliarditi and Escrow Agent have not received from
Ameristar its proposed notice in the form of Schedule 7
attached hereto within three (3) Business Days following the
Settlement Date that the Escrow Agent is advised of by the
Underwriter), Escrow Agent shall (i) complete the "Principal
Amount" of the Magliarditi Note so that such amount equals
the amount set forth as the "PRINCIPAL AMOUNT OF MAGLIARDITI
NOTE" set forth in paragraph 4 of the Magliarditi Note
Completion Notice, (ii) date the Magliarditi Note as of the
Settlement Date identified in the Magliarditi Note
Completion Notice, (iii) deliver the Magliarditi Note to
Magliarditi as specified in the Magliarditi Note Completion
Notice and (iv) mark the Alternative Magliarditi Note as
"CANCELLED" and return the Alternative Magliarditi Note to
Ameristar.
2.3 Completion and Delivery of Rebeil Note
and Magliarditi Note Following Going Private Event. Upon
receiving a Going Private Notice in the form of Schedule 8
attached hereto, duly executed by an officer of Ameristar,
Rebeil and Magliarditi, the Escrow Agent shall (i) complete
the "Principal Amount" of the Rebeil Note so that such
amount equals Sixty One Million Five Hundred Thirty One
Thousand Five Hundred Dollars ($61,531,500), (ii) complete
the "Principal Amount" of the Magliarditi Note so that
such amount equals the amount of One Million Nine Hundred
Sixty Eight Thousand Five Hundred Dollars
($1,968,500), (iii) date the Rebeil Note and the
Magliarditi Note as of the date identified on the Going
Private Notice as the Settlement Date, (iv) complete the
"maturity date" of the Rebeil Note and the Magliarditi
Note to be the date that is six (6) months after the
Settlement Date, (v) deliver the Rebeil Note to Rebeil and
the Magliarditi Note to Magliarditi as specified in the
Going Private Notice, and (vi) mark the Alternative Rebeil
Note and the Alternative Magliarditi Note as "CANCELLED" and
return such notes to Ameristar.
2.4 Escrow Termination. In the event that
Escrow Agent has not received a Rebeil Note Completion
Notice, a Magliarditi Note Completion Notice, a Going
Private Notice or a Note Cancellation Notice within
twelve (12) months of the date hereof, then Escrow Agent
shall deliver the Rebeil Note, the Alternative Rebeil
Note, the Magliarditi Note and the Alternative Magliarditi
Note to Ameristar and shall terminate the escrow
established by this Agreement.
ARTICLE 3 - Fees and Costs
3.1 Ameristar shall pay Escrow Agent's escrow
fee or escrow termination charge.
ARTICLE 4 - Notices
4.1 All notices, requests, demands and
other
communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally
delivered; when
transmitted if transmitted by telecopy, electronic or
digital transmission method; the day after it is sent, if
sent for next day delivery to a domestic address by
recognized overnight delivery service (e.g., Federal
Express); and upon receipt, if sent by certified or
registered mail, return receipt requested. In each case
notice shall be sent to:
If to Escrow Agent:
First Security Bank of Nevada
Attn: David Smith
If to Rebeil:
Steven W. Rebeil
93 Spanish Gate Drive
Las Vegas, Nevada 89113
If to Magliarditi:
Dominic J. Magliarditi
735 Helmhill Avenue
Las Vegas, Nevada 89123
If to Ameristar:
Ameristar Casinos, Inc.
777 West Lake Mead Drive
P.O. Box 92200
Las Vegas, Nevada 89009
Attention: Brian E. Katz,
Esq.
With a copy to:
Latham & Watkins
701 B Street, Suite 2100
San Diego, California 92101
Attention: Bruce P. Shepherd, Esq.
ARTICLE 5 - Extent of Escrow Agent's Responsibilities
5.1 Escrow Agent shall not be liable for any of
its
acts or omissions unless the same shall constitute negligence
or willful misconduct.
5.2 Escrow Agent shall have no obligation to
inform
any party of any other transaction or of facts within
Escrow Agent's knowledge, provided such matters do not
prevent Escrow Agent's compliance with this Agreement.
5.3 Escrow Agent shall not be responsible for (i)
the
sufficiency or correctness as to form or the validity of
any document deposited with Escrow Agent, (ii) the
manner of execution of any such deposited document, unless such
execution occurs in Escrow Agent's premises and under its
supervision, or (iii) the identity, authority or rights of
any person executing any document deposited with Escrow Agent.
5.4 If Escrow Agent receives or becomes aware
of conflicting demands or claims with respect to the escrow,
the rights of any party hereto, or funds, documents or other
items deposited with Escrow Agent, Escrow Agent shall have the
right to discontinue any further acts until such conflict is
resolved to its satisfaction, and it shall have the further
right to commence or defend any action for the determination of
such conflict. The parties shall, immediately after demand
therefor by Escrow Agent, reimburse Escrow Agent (in such
respective proportions as Escrow Agent shall determine) any
reasonable attorneys' fees and court costs incurred by
Escrow Agent pursuant to this Section. Notwithstanding any
provisions of this Agreement to the contrary, Escrow
Agent shall at all
times be obligated to perform in accordance with Article 2
hereof unless instructed otherwise in a writing duly
signed by Ameristar, Rebeil and Magliarditi.
5.5 In the event that pursuant to Article 2
hereof Escrow Agent receives multiple notices duly signed by
the appropriate parties thereto, and such notices call for the
Escrow Agent to take inconsistent actions, Escrow Agent shall
have the right to rely upon, and implement the actions called
for by, the first such notice so received by Escrow Agent,
and to disregard the subsequent notices.
ARTICLE 6 - General Provisions
6.1 Captions in this Agreement are inserted
for convenience of reference only and do not define, describe
or limit the scope or the intent of this Agreement or any of
the terms hereof.
6.2 All exhibits referred to herein and
attached hereto are incorporated herein by reference.
6.3 No modification, waiver, amendment, discharge
or change of this Agreement shall be valid unless the same is
in writing and signed by the party against whom the
enforcement of such modification, waiver, amendment,
discharge or change is or may be sought.
6.4 In the event that any party commences
litigation for the judicial interpretation, enforcement,
termination, cancellation or rescission hereof, or for damages for the
breach hereof, the prevailing party or parties shall be
entitled to reasonable attorneys' fees and court and other
costs incurred.
6.5 This Agreement shall be construed and enforced
in accordance with the laws of the State of Nevada.
6.6 Time is of the essence to this Agreement.
6.7 In the event that any term, covenant,
condition, provision or agreement herein contained is held to be
invalid, void or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant,
condition, provision or agreement is invalid, void
or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition,
provision or agreement herein contained.
6.8 All terms of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by, the
parties hereto and their respective legal
representatives, successors and
assigns. Neither party may assign its rights under this
Agreement without the written consent of the other party to
this Agreement except in connection with an assignment
permitted by Section 12.2 of the Merger Agreement.
6.9 This Agreement may be executed in one or more
counterparts, and by different parties hereto in separate
counterparts, each of which when executed shall be deemed to be
an original, including counterparts transmitted by facsimile,
but all of which taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, this Agreement has been executed
by the parties, as of the date first set forth above.
AMERISTAR:
AMERISTAR CASINOS, INC.,
a Nevada corporation
By:/s/ Craig H. Neilsen
Name: Craig H. Neilsen
Its: President
On this 2nd day of October, 1996, Craig H. Neilsen
directed Thomas M. Steinbauer, in his presence as well as our
own, to sign the foregoing document as "Craig H. Neilsen."
Upon viewing the signature as signed by Thomas M. Steinbauer,
and in our presence, Craig H. Neilsen declared to us that he
adopted it as his own signature.
/s/ Peter Liguori
Witness
/s/ Christine L. Hinton
Witness
State of Nevada )
) ss.
County of Clark )
I, Catherine Zeljeznjak, Notary Public in and for
said county and state, do hereby certify that Craig H.
Neilsen personally appeared before me and is known or
identified to me to be the President of Ameristar Casinos,
Inc., the corporation that executed the within instrument or
the person who executed the instrument on behalf of said
corporation. Craig H. Neilsen, who being unable due to
physical incapacity to sign his name or offer his mark, did
direct Thomas M. Steinbauer, in his presence, as well as my
own, to sign his name to the foregoing document. Craig H.
Neilsen, after viewing his name as signed by Thomas M.
Steinbauer, thereupon adopted it as his own by acknowledging
to me his intention to so adopt as if he had personally
executed the same in behalf of said corporation, and further
acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this 22nd day of October, 1996.
/s/ Catherine Zeljeznjak
Notary Public
My Commission Expires on: 6/24/99
STEVEN W. REBEIL,
an individual
/s/ Steven W. Rebeil
STEVEN W. REBEIL,
in his capacity as Trustee of
the Karizma Trust created under
that certain Trust Agreement,
dated July 2, 1991, as amended
/s/ Steven W. Rebeil
DOMINIC J. MAGLIARDITI,
an individual
/s/ Dominic J. Magliarditi
CONSENT OF SPOUSE OF STEVEN W. REBEIL
The undersigned hereby confirms (i) that she has
read, approved of and agreed with the terms of this Agreement
and all transactions contemplated hereby, (ii) that as the
spouse of one of the signatories hereto, her property
(including her interests
in any community property) may be held liable for the
obligations of her spouse under this Agreement and all
transactions and other agreements contemplated hereby, (iii)
that she will be bound by this Agreement and all other
agreements contemplated hereby as if she were
a party thereto, and that any
agreements,
acknowledgments, representations or warranties made by her
spouse under this Agreement or any other agreements
contemplated hereby shall apply equally to the undersigned
as if made by the undersigned, (iv) that she approves all
actions taken to date by her spouse in connection with this
Agreement and all transactions and other
agreements contemplated hereby, and that she has
authorized and empowered her spouse to take any and all
further
actions which he deems necessary or appropriate in order
to effect the transactions contemplated
thereby, and (v) that
Ameristar may rely upon the confirmations set forth in
this Consent of Spouse in entering into and
proceeding with this
Agreement.
Date: October 3, 1996 /s/ Jilly Rebeil
CONSENT OF SPOUSE OF DOMINIC J. MAGLIARDITI
The undersigned hereby confirms (i) that she has
read, approved of and agreed with the terms of this Agreement
and all transactions contemplated hereby, (ii) that as the
spouse of one of the signatories hereto, her property
(including her interests in any community property) may be held
liable for the obligations of her spouse under this Agreement
and all transactions and other agreements contemplated hereby,
(iii) that she will be bound by this Agreement and all other
agreements contemplated hereby as if she were
a party thereto, and that any
agreements,
acknowledgments, representations or warranties made by her
spouse under this Agreement or any other agreements
contemplated hereby shall apply equally to the undersigned
as if made by the undersigned, (iv) that she approves all
actions taken to date by her spouse in connection with this
Agreement and all transactions and other
agreements contemplated hereby, and that she has
authorized and empowered her spouse to take any and all
further
actions which he deems necessary or appropriate in order
to effect the transactions contemplated
thereby, and (v) that
Ameristar may rely upon the confirmations set forth in
this Consent of Spouse in entering into and
proceeding with this
Agreement.
Date: October 1, 1996 /s/Francine R. Magliarditi
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees
to
(i) accept the foregoing Agreement, (ii) be escrow agent
under
said Agreement as specified, and (iii) be bound by said
Agreement in the performance of its duties as escrow
agent; provided, however, that the
undersigned shall have no obligations,
liability or responsibility under (A) this Agreement
or
otherwise, unless and until said Agreement, fully signed by
the parties, has been delivered to the undersigned, or
(B) any amendment to said Agreement unless and until the same
shall be accepted by the undersigned in writing.
Dated: October 3, 1996
ESCROW AGENT:
By: /s/ Mark Dreschler
Name: Mark Dreschler
Title: President
Schedule 1
Form of Rebeil Note
Principal Amount:
$______________
Date of this Note: __________________
1. Promise to Pay. For good and
valuable consideration, AMERISTAR CASINOS, INC., a Nevada
corporation ("Ameristar"), promises to pay to STEVEN W.
REBEIL, trustee of the Karizma Trust ("Payee"),
$______________ (the "Principal Amount") with interest at
the rate of eight percent (8%) per annum (the "Interest
Rate") from the Date of this Note set forth above (the
"Settlement Date"), until paid, in accordance with the terms
contained herein. Interest shall be computed on the basis of
a 360-day year and the actual number of days elapsed. Should
any interest not be paid when due, it shall thereafter
accrue interest as principal.
2. Payment Schedule. Accrued interest shall
be payable in arrears on the first day of each month following
the Settlement Date. Ameristar shall pay the entire
balance of principal and any accrued but unpaid interest on
or before the date that is three (3) years after the
Settlement Date (the "Maturity Date"). All payments shall be
applied first to accrued interest and then to the principal
balance. All payments shall be made at 93 Spanish Gate
Drive, Las Vegas, Nevada 89113, or at such other place as
Payee may from time to time designate. All
payments shall be made in lawful money of the United States.
The indebtedness under this Note may be prepaid in whole or in
part at any time, without penalty or prepayment premium.
3. Miscellaneous Provisions. If Payee refers
this Note to an attorney to enforce, construe or defend any
provision hereof, with or without the filing of any legal
action or proceeding, Ameristar shall pay to Payee upon demand
the amount of all attorneys' fees, costs and other expenses
incurred by Payee in connection therewith, together with
interest thereon from the date of demand at the rate
applicable to the principal balance of this Note. No
provision of this Note may be amended, modified, supplemented,
changed, waived, discharged or terminated unless Payee
consents thereto in writing. In case any one or more of
the provisions contained in this Note should be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired thereby. Time is of the essence of this Note and
the performance of each of the covenants and agreements
contained herein. This Note shall be governed by and
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Ameristar has executed this Note
as of the Date of this Note.
AMERISTAR
CASINOS, INC.,
a Nevada
corporation
Name: Craig
H.
Neilsen
Title: President
On this _____ day of _____________________, 19____, Craig
H. Neilsen directed ________________________________________,
in his presence as well as our own, to sign the foregoing
document as "Craig H. Neilsen." Upon viewing the signature
as signed by ______________________________________, and in
our presence, Craig H. Neilsen declared to us that he
adopted it as his own signature.
Witness
Witness
State of Nevada )
) ss.
County of Clark )
I, _________________________________, Notary Public in
and for said county and state, do hereby certify that
Craig H. Neilsen personally appeared before me and is known
or identified to me to be the
_________________________ of
_________________________, the corporation that executed
the within instrument or the person who executed the
instrument on behalf of said corporation. Craig H. Neilsen,
who being unable due to physical incapacity to sign his name
or offer his mark, did direct
______________________________________, in his
presence, as well as my own, to sign his name to the
foregoing document. Craig H. Neilsen, after viewing his name
as signed by ___________________________________________,
thereupon adopted it as his own by acknowledging to me his
intention to so adopt as if he had personally executed
the same in behalf of said
corporation, and further acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this _____ day of ______________________, 19____.
Notary Public
My Commission Expires
on: Schedule 2
Form of Rebeil Alternative Note
Principal Amount:
$______________
Date of this Note: October 3, 1996
1. Promise to Pay. For good and
valuable consideration, AMERISTAR CASINOS, INC., a Nevada
corporation ("Ameristar"), promises to pay to STEVEN W.
REBEIL, trustee of the Karizma Trust ("Payee"),
$______________ (the "Principal
Amount") with interest at the rate of eight percent (8%)
per
annum (the "Interest Rate") from ____________________
(the "Settlement Date"), until paid, in accordance with the
terms contained herein. Interest shall be computed on the
basis of a 360-day year and the actual number of days
elapsed. Should any interest not be paid when due, it
shall thereafter accrue
interest as principal.
2. Payment Schedule. Accrued interest shall
be payable in arrears on the first day of each month following
the Settlement Date. Ameristar shall pay the entire
balance of principal and any accrued but unpaid interest on
or before the date that is three (3) years after the
Settlement Date (the "Maturity Date"). All payments shall be
applied first to accrued interest and then to the principal
balance. All payments shall be made at 93 Spanish Gate
Drive, Las Vegas, Nevada 89113, or at such other place as
Payee may from time to time designate. All
payments shall be made in lawful money of the United States.
The indebtedness under this Note may be prepaid in whole or in
part at any time, without penalty or prepayment premium.
3. Miscellaneous Provisions. If Payee refers
this Note to an attorney to enforce, construe or defend any
provision hereof, with or without the filing of any legal
action or proceeding, Ameristar shall pay to Payee upon demand
the amount of all attorneys' fees, costs and other expenses
incurred by Payee in connection therewith, together with
interest thereon from the date of demand at the rate
applicable to the principal balance of this Note. No
provision of this Note may be amended, modified, supplemented,
changed, waived, discharged or terminated unless Payee
consents thereto in writing. In case any one or more of
the provisions contained in this Note should be held to be
invalid, illegal or unenforceable in any respect,
the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired thereby. Time is of the essence of this Note and
the performance of each of the covenants and agreements
contained herein. This Note shall be governed by and
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Ameristar has executed this Note
as of the Date of this Note.
AMERISTAR CASINOS, INC.,
a Nevada corporation
Name: Craig H. Neilsen
Title: President
On this _____ day of _____________________, 19____, Craig
H. Neilsen directed ________________________________________,
in his presence as well as our own, to sign the foregoing
document as "Craig H. Neilsen." Upon viewing the signature
as signed by ______________________________________, and in
our presence, Craig H. Neilsen declared to us that he
adopted it as his own signature.
Witness
Witness
State of Nevada )
) ss.
County of Clark )
I, _________________________________, Notary Public in
and for said county and state, do hereby certify that
Craig H. Neilsen personally appeared before me and is known
or identified to me to be the
_________________________ of
_________________________, the corporation that executed
the within instrument or the person who executed the
instrument on behalf of said corporation. Craig H. Neilsen,
who being unable due to physical incapacity to sign his name
or offer his mark, did direct
______________________________________, in his
presence, as well as my own, to sign his name to the
foregoing document. Craig H. Neilsen, after viewing his name
as signed by ___________________________________________,
thereupon adopted it as his own by acknowledging to me his
intention to so adopt as if he had personally executed
the same in behalf of said
corporation, and further acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this _____ day of ______________________, 19____.
Notary Public
My Commission Expires
on: Schedule 3
Form of Magliarditi Note
Principal Amount:
$______________
Date of this Note: _______________________
1. Promise to Pay. For good and
valuable
consideration, AMERISTAR CASINOS, INC., a Nevada
corporation ("Ameristar"), promises to pay to DOMINIC J.
MAGLIARDITI ("Payee"), $______________ (the "Principal Amount")
with interest at the rate of eight percent (8%) per annum (the
"Interest Rate") from the Date of this Note set forth above
(the "Settlement Date"), until paid, in accordance with
the terms contained herein. Interest shall be computed
on the basis of a 360-day
year and the actual number of days elapsed. Should any
interest not be paid when due, it shall thereafter accrue
interest as principal.
2. Payment Schedule. Accrued interest shall
be payable in arrears on the first day of each month following
the Settlement Date. Ameristar shall pay the entire
balance of principal and any accrued but unpaid interest on
or before the date that is three (3) years after the
Settlement Date (the "Maturity Date"). All payments shall be
applied first to accrued interest and then to the principal
balance. All payments shall be made at 724 Helmhill Drive,
Las Vegas, Nevada 89123, or at such other place as Payee may
from time to time designate. All
payments shall be made in lawful money of the United States.
The indebtedness under this Note may be prepaid in whole or in
part at any time, without penalty or prepayment premium.
3. Miscellaneous Provisions. If Payee refers
this Note to an attorney to enforce, construe or defend any
provision hereof, with or without the filing of any legal
action or proceeding, Ameristar shall pay to Payee upon demand
the amount of all attorneys' fees, costs and other expenses
incurred by Payee in connection therewith, together with
interest thereon from the date of demand at the rate
applicable to the principal balance of this Note. No
provision of this Note may be amended, modified, supplemented,
changed, waived, discharged or terminated unless Payee
consents thereto in writing. In case any one or more of
the provisions contained in this Note should be held to be
invalid, illegal or unenforceable in any respect,
the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired thereby. Time is of the essence of this Note and
the performance of each of the covenants and agreements
contained herein. This Note shall be governed by and
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Ameristar has executed this Note
as of the Date of this Note.
AMERISTAR CASINOS, INC.,
a Nevada corporation
Name: Craig H. Neilsen
Title: President
On this _____ day of _____________________, 19____, Craig
H. Neilsen directed ________________________________________,
in his presence as well as our own, to sign the foregoing
document as "Craig H. Neilsen." Upon viewing the signature
as signed by ______________________________________, and in
our presence, Craig H. Neilsen declared to us that he
adopted it as his own signature.
Witness
Witness
State of Nevada )
) ss.
County of Clark )
I, _________________________________, Notary Public in
and for said county and state, do hereby certify that
Craig H. Neilsen personally appeared before me and is known
or identified to me to be
the _________________________ of
_________________________, the corporation that executed
the within instrument or the person who executed the
instrument on behalf of said corporation. Craig H. Neilsen,
who being unable due to physical incapacity to sign his name
or offer his mark, did direct
______________________________________, in his
presence, as well as my own, to sign his name to the
foregoing document. Craig H. Neilsen, after viewing his name
as signed by ___________________________________________,
thereupon adopted it as his own by acknowledging to me his
intention to so adopt as if he had
personally executed the same in behalf of said
corporation, and further acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this _____ day of ______________________, 19____.
Notary Public
My Commission Expires on:
Schedule 4
Form of Alternative Magliarditi Note
Principal Amount:
$______________
Date of this Note: October 3, 1996
1. Promise to Pay. For good and
valuable consideration, AMERISTAR CASINOS, INC., a Nevada
corporation ("Ameristar"), promises to pay to DOMINIC J.
MAGLIARDITI ("Payee"), $______________ (the "Principal Amount")
with interest at the rate of eight percent (8%) per annum (the
"Interest Rate") from _______________________ (the "Settlement
Date"), until paid, in accordance with the terms contained
herein. Interest shall be computed on the basis of a 360-day
year and the actual number of days elapsed. Should any
interest not be paid when due, it shall thereafter accrue
interest as principal.
2. Payment Schedule. Accrued interest shall
be payable in arrears on the first day of each month following
the Settlement Date. Ameristar shall pay the entire
balance of principal and any accrued but unpaid interest on
or before the date that is three (3) years after the
Settlement Date (the "Maturity Date"). All payments shall be
applied first to accrued interest and then to the principal
balance. All payments shall be made at 735 Helmhill Drive,
Las Vegas, Nevada 89123, or at such other place as Payee may
from time to time designate. All payments shall be made in
lawful money of the United States. The indebtedness under this
Note may be prepaid in whole or in part at any time, without
penalty or prepayment premium.
3. Miscellaneous Provisions. If Payee refers
this Note to an attorney to enforce, construe or defend any
provision hereof, with or without the filing of any legal
action or proceeding, Ameristar shall pay to Payee upon demand
the amount of all attorneys' fees, costs and other expenses
incurred by Payee in connection therewith, together with
interest thereon from the date of demand at the rate
applicable to the principal balance of this Note. No
provision of this Note may be amended, modified, supplemented,
changed, waived, discharged or terminated unless Payee
consents thereto in writing. In case any one or more of
the provisions contained in this Note should be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired
thereby. Time is of the essence of this Note and the
performance of each of the covenants and agreements contained
herein. This Note shall be governed by and construed in
accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Ameristar has executed this Note
as of the Date of this Note.
AMERISTAR
CASINOS, INC.,
a Nevada
corporation
Name: Craig
H.
Neilsen
Title: President
On this _____ day of _____________________, 19____, Craig
H. Neilsen directed ________________________________________,
in his presence as well as our own, to sign the foregoing
document as "Craig H. Neilsen." Upon viewing the signature
as signed by ______________________________________, and in
our presence,
Craig H. Neilsen declared to us that he adopted it as his
own signature.
Witness
Witness
State of Nevada )
) ss.
County of Clark )
I, _________________________________, Notary Public in
and for said county and state, do hereby certify that
Craig H. Neilsen personally appeared before me and is known
or identified to me to be
the _________________________ of
_________________________, the corporation that executed
the within instrument or the person who executed the
instrument on behalf of said corporation. Craig H. Neilsen,
who being unable due to physical incapacity to sign his name
or offer his mark, did direct
______________________________________, in his
presence, as well as my own, to sign his name to the
foregoing document. Craig H. Neilsen, after viewing his name
as signed by ___________________________________________,
thereupon adopted it as his own by acknowledging to me his
intention to so adopt as if he had personally executed
the same in behalf of said
corporation, and further acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this _____ day of ______________________, 19____.
Notary Public
My Commission Expires on:
Schedule 5
Form of Note Cancellation Notice
I, _______________, acting in my capacity as
the [insert title] of Ameristar Casinos, Inc., a Nevada
corporation ("Ameristar"), hereby certify and represent
and warrant as follows:
1. This certificate is made in connection with
that
certain Gem Individuals' Notes Escrow Agreement and
Escrow Instructions (the "Escrow Agreement") dated as of
September 27, 1996, by and between Ameristar, Steven W.
Rebeil, an individual and in his capacity as Trustee of the
Karizma Trust created under that certain Trust Agreement,
dated July 2, 1991, as amended ("Rebeil"), and Dominic
J. Magliarditi, an individual ("Magliarditi").
Capitalized terms used herein without definition shall
have the meanings set forth in the Escrow Agreement.
Although this notice references the Merger Agreement and may
further reference certain defined terms used therein, such
references are solely for the benefit of the parties to the
Escrow Agreement and Escrow Agent shall have no obligations
or responsibilities with respect to the Merger Agreement.
2. Pursuant to Section 2.10(g)(iv) of the
Merger
Agreement and Section 2.1 of the Escrow Agreement, each of
the Rebeil Note, the Alternative Rebeil Note, the Magliarditi
Note and the Alternative Magliarditi Note are to be marked
"CANCELLED" and delivered by Escrow Agent to Ameristar.
Dated: By:
APPROVED AND ACKNOWLEDGED:
Steven W. Rebeil, an individual
Steven W. Rebeil, in his capacity as Trustee of
the Karizma Trust created under that certain
Trust Agreement, dated July 2, 1991, as
amended
Dominic J. Magliarditi
Schedule 6
Form of Rebeil Note Completion Notice
I, , acting in my capacity
as
the [insert title] of Ameristar Casinos, Inc., a
Nevada corporation ("Ameristar"), hereby certify and
represent and warrant as follows:
1. This certificate is made in connection with
that
certain Gem Individual Notes Escrow Agreement and
Escrow Instructions (the "Escrow Agreement") dated as of
September 27, 1996, by and between Ameristar, Steven W.
Rebeil, an individual and in his capacity as Trustee of the
Karizma Trust created under that certain Trust Agreement,
dated July 2, 1991, as amended ("Rebeil"), and Dominic
J. Magliarditi, an individual
("Magliarditi"). Capitalized terms used herein
without
definition shall have the meanings set forth in the Agreement,
or if not defined therein, in the "Merger Agreement"
referenced in the Escrow Agreement. Although this notice
references the Merger Agreement and may further reference
certain defined terms used therein, such references are
solely for the benefit of the parties to the Escrow
Agreement and Escrow Agent shall have no obligations or
responsibilities with respect to the Merger Agreement.
2. On __________ (the "Settlement
Date"),
____________ (______) shares of Post-Merger Offering Stock
were sold in connection with the "Offering," as such term is
used in the Merger Agreement.
3. The Average 10-Day Closing Price of
Ameristar Common Stock as of the Settlement Date is
__________ Dollars ($_______).
4. Pursuant to Section 2.2 of the Escrow
Agreement, the principal amount of the Rebeil Note, as set
forth below, shall be inserted therein. In connection
therewith, the parties shall undertake the following
calculations:
Number of Shares of Post-Merger Offering
Stock 7,500,000
Number of Shares of Post-Merger Offering Stock Sold
in the Offering
-
0
Number of Shares of Post-Merger Offering Stock Not
Sold = 7,500,000
Average 10-Day Closing Price as of Settlement
Date x
Subtotal =
Gem Individuals' Share of Completion
Differential - 4,000,000
Sum of the Amounts Calculated Pursuant to
Sections 2.10(g)(i)(B)(2)
of the Merger Agreement (which
amount shall be zero dollars ($0)
if the Net Proceeds of the Post-
Merger Offering Stock are less than
$8.00/ share multiplied by the
number of shares of Post-Merger
Offering
Stock sold in the Offering) -
One-Half of Offering Expenses -
Subtotal =
Rebeil's Gem Proportionate Interest
x .969
PRINCIPAL AMOUNT OF REBEIL NOTE =
5. Pursuant to Section 2.10(h)(ii)(A) of the
Merger Agreement, after the principal amount of the Rebeil Note
has been completed pursuant to Section 2.2 of the Escrow
Agreement and the Escrow Agent has dated the Rebeil Note as of
the Settlement Date, Escrow Agent: (a) is to deliver the
Rebeil Note to Rebeil; and
(b) is to mark the Alternative Rebeil Note as "CANCELLED"
and return the Alternative Rebeil Note to Ameristar.
Dated: By:
APPROVED AND ACKNOWLEDGED:
Steven W. Rebeil, an individual
Steven W. Rebeil, in his capacity as Trustee of
the Karizma Trust created under that certain
Trust Agreement, dated July 2, 1991, as
amended
Schedule 7
Form of Magliarditi Note Completion Notice
I, , acting in my capacity
as
the [insert title] of Ameristar Casinos, Inc., a
Nevada
corporation ("Ameristar"), hereby certify and represent
and warrant as follows:
1. This certificate is made in connection with
that certain Gem Individuals' Notes Escrow Agreement and
Escrow Instructions (the "Escrow Agreement") dated as of
September 27, 1996, by and between Ameristar, Steven W.
Rebeil, an individual and in his capacity as Trustee of the
Karizma Trust created under that certain Trust Agreement,
dated July 2, 1991, as amended ("Rebeil"), and Dominic
J. Magliarditi, an individual ("Magliarditi").
Capitalized terms used herein without
definition shall have the meanings set forth in the
Escrow
Agreement, or if not defined therein, in the "Merger
Agreement"
referenced in the Escrow Agreement. Although this
notice
references the Merger Agreement and may further reference
certain defined terms used therein, such references are solely
for the benefit of the parties to the Escrow Agreement and
Escrow Agent shall have no obligations or responsibilities
with respect to the Merger Agreement.
2. On __________ (the "Settlement
Date"),
____________ (______) shares of Post-Merger Offering Stock
were sold in connection with the "Offering," as such term is
used in the Merger Agreement.
3. The Average 10-Day Closing Price of
Ameristar Common Stock as of the Settlement Date is
__________ Dollars ($_______).
4. Pursuant to Section 2.2 of the Escrow
Agreement, the principal amount of the Magliarditi Note, as set
forth below, shall be inserted therein. In connection
therewith, the parties shall undertake the following
calculations:
Number of Shares of Post-Merger Offering
Stock 7,500,000
Number of Shares of Post-Merger Offering Stock Sold
in the Offering
-
0
Number of Shares of Post-Merger Offering Stock Not
Sold = 7,500,000
Average 10-Day Closing Price as of Settlement
Date x
Subtotal =
Gem Individuals' Share of Completion
Differential - 4,000,000
Sum of the Amounts Calculated Pursuant to
Sections 2.10(g)(i)(B)(2)
of the Merger Agreement (which
amount shall be zero dollars ($0)
if the Net Proceeds of the Post-
Merger Offering Stock are less than
$8.00/ share multiplied by the
number of shares of Post-Merger
Offering
Stock sold in the
Offering)
- -
One-Half of Offering Expenses -
Subtotal =
Magliarditi's Gem Proportionate
Interest
x .031
PRINCIPAL AMOUNT OF MAGLIARDITI NOTE =
5. Pursuant to Section 2.10(h)(ii)(B) of the
Merger Agreement, after the principal amount of the Magliarditi
Note has been completed pursuant to Section 2.2 of the Escrow
Agreement and the Escrow Agent has dated the Magliarditi Note
as of the Settlement Date, Escrow Agent (a) is to deliver
the Magliarditi Note to Magliarditi; and (b) is to
mark the Alternative Magliarditi Note as "CANCELLED" and
return the Alternative Magliarditi Note to Ameristar.
Dated: By:
APPROVED AND ACKNOWLEDGED:
Dominic J. Magliarditi
Schedule 8
Form of Going Private Notice
I, , acting in my capacity
as
the [insert title] of Ameristar Casinos, Inc., a
Nevada
corporation ("Ameristar"), hereby certify and represent
and warrant as follows:
1. This certificate is made in connection with
that certain Gem Individual Notes Escrow Agreement and
Escrow
Instructions (the "Escrow Agreement") dated as of September
27, 1996, by and between Ameristar, Steven W. Rebeil, an
individual and in his capacity as Trustee of the Karizma Trust
created under that certain Trust Agreement, dated July 2,
1991, as amended ("Rebeil"), and
Dominic J. Magliarditi, an individual
("Magliarditi"). Capitalized terms used herein
without
definition shall have the meanings set forth in the
Escrow Agreement, or if not defined therein, in the "Merger
Agreement" referenced in the Escrow Agreement. Although
this notice
references the Merger Agreement and may further reference
certain defined terms used therein, such references are solely
for the benefit of the parties to the Escrow Agreement and
Escrow Agent shall have no obligations or responsibilities
with respect to the Merger Agreement.
2. A "Going Private Event," as such term is used
in
the Merger Agreement, has occurred. Accordingly, the
Escrow Agent is hereby instructed to insert Sixty One
Million Five Hundred Thirty One Thousand Five Hundred Dollars
($61,531,500) as the principal amount of the Rebeil Note and
One Million Nine Hundred Sixty Eight Thousand Five Hundred
Dollars ($1,968,500) as the principal amount of the Magliarditi
Note.
3. The Settlement Date occurred on _____________,
19___.
4 Pursuant to Section 2.10(i) of the
Merger Agreement, after the principal amount of each of the
Rebeil Note and the Magliarditi Note has been completed
pursuant to Section 2.3 of the Escrow Agreement and the
Escrow Agent has dated the Rebeil Note and the Magliarditi
Note as of the Settlement Date and has inserted the date
that is six (6) months following the Settlement Date as the
"Maturity Date" of the Rebeil Note and the Magliarditi Note,
Escrow Agent (a) is to deliver the Rebeil Note to Rebeil and
the Magliarditi Note to Magliarditi and (b) is to mark the
Alternative Rebeil Note and the Alternative Magliarditi Note as
"CANCELLED" and to return said notes to Ameristar.
Dated: By:
APPROVED AND ACKNOWLEDGED:
Steven W. Rebeil, an individual
Steven W. Rebeil, in his capacity as Trustee of
the Karizma Trust created under that certain
Trust Agreement, dated July 2, 1991, as
amended
________________________________________
Dominic J. Magliarditi