Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Amendment to General Statement of Beneficial 7 40K
Ownership
2: EX-1 Underwriting Agreement 23 71K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 4 16K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 2 11K
5: EX-4 Instrument Defining the Rights of Security Holders 2 11K
6: EX-5 Opinion re: Legality 2 13K
7: EX-6 Opinion re: Discount on Capital Shares 6 23K
8: EX-7 Opinion re: Liquidation Preference 1 9K
9: EX-8 Opinion re: Tax Matters 2 10K
10: EX-9 Voting Trust Agreement 2 10K
11: EX-10 Material Contract 10 31K
12: EX-11 Statement re: Computation of Earnings Per Share 19 74K
EX-6 — Opinion re: Discount on Capital Shares
| EX-6 | 1st Page of 6 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 6
CONSTRUCTION LOAN AGREEMENT AMENDMENT V
Construction Loan Agreement Amendment, dated July 7, 1995 among Bennett
Management and Development Corp., a New York Corporation ("Lender"),
Mountaineer Park, Inc., a West Virginia Corporation ("Borrower"), and Winners
Entertainment, Inc., a Delaware Corporation and parent of Borrower
("Winners").
WHEREAS, Borrower and Lender desire to amend the construction loan agreement
executed by the parties on June 27, 1994 and further amended on September 27,
1994, December 7, 1994, February 10, 1995, and April 10, 1995 ("Agreement");
and
WHEREAS, Lender and Borrower wish to complete the construction loan draws by
loaning the final $803,333.34 to Borrower and
WHEREAS, Lender and Borrower want to clarify and modify the granting of
common stock by the Borrower to the Lender and
WHEREAS, Lender desires to change the amortization start date on the original
$2.6 Million of borrowings
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, the parties hereto, hereby agree as follows:
1. ARTICLE I, Section 1.1 Commitment is amended in its entirety as follows:
Lender hereby accepts as of June 30, 1995 Borrower's offset of the
interest payment due June 30, 1995 in the amount of $96,666.66 and
agrees that such payment was timely made in full on that date. Lender
acknowledges that as of this date, there has not been a default or event
of default by either Borrower or Winners.
Lender has loaned $9.3 Million as of July 7, 1994 and agrees to loan the
remaining $803,333.34 to Borrower no later than two business days after
the signing by all parties of this construction loan agreement
amendment.
Lender and Borrower agree that Lender's obligation to loan $10.2 Million
would be satisfied in full in a satisfactory manner and Lender is
entitled to all of its rights including interest rates, common stock
grants etc. as set forth under the AGREEMENT unless amended herein.
2. ARTICLE I, Section 1.3 Procedure for Borrowing is amended in its
entirety as follows:
Borrower has previously furnished sufficient information to draw down
$9.3 Million from the Lender. Borrower would not be required to furnish
any additional information to borrow the remaining $803,333.34 other
than described in the amended Section 1.1 above.
3. ARTICLE I, Section 1.5 Repayment of Loans is amended in its entirety as
follows:
To the extent that loans are not prepaid in full on or prior to November
1, 1995, in accordance with Section 1.4 hereof, Borrower shall repay the
outstanding principal amount of the loans as of such date in 36 equal
monthly installments on the last business day of each month commencing
on November 1, 1995.
4. ARTICLE II, Section 2.1, Grant of Common Stock to Lender is amended in
its entirety as follows:
In order to induce Lender to enter into this agreement to make the
loans, Winner hereby agrees to issue to Lender, from time to time,
shares of its common stock, par value $.00001 per share ("Winners Common
Stock"), as follows. For each one dollar of loans made hereunder,
Lender shall be entitled to receive .05 of a share of Winners Common
Stock subject to adjustment by Winners in an equitable manner in the
event of a stock split, combination, reclassification or similar event
with respect to Winners Common Stock. Winners has previously issued
465,000 shares of Winners Common Stock to Lender which has been earned
by Lender from the funding of $9.3 Million. Winners further agrees to
issue an additional 45,000 shares of Winners Common Stock substantially
contemporaneously with a making of the remaining $803,333.34 loan from
Lender in accordance with the terms of this agreement. Provided,
however, that if Lender fails to wire transfer such funds in accordance
with Section 1 of this Amendment, then Lender shall not be entitled to
any shares of Winners common stock under this Section II and shall
immediately deliver to Winners any shares previously issued to Lender by
Winners pursuant hereto free and clear of all liens, claims and other
encumbrances, in the form of certificates representing such shares,
accompanied by appropriate stock powers duly executed or endorsed in
blank with appropriate transfer tax stamps affixed.
5. ARTICLE II, Section 2.2 Issuance of Additional Shares is amended in its
entirety as follows:
Winners agrees to issue an additional 1,020,000 shares of Winners Common
Stock to Lender in return for which Lender agrees to delete Section 2.6
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in its entirety. This issuance will take place contemporaneously with
the signing of this agreement and Winners will provide evidence of this
issuance at the time that this agreement is ratified. Lender further
agrees that it would not be entitled to any additional shares from
Winners in any respect except for shares to be earned if Borrower has
not prepaid the loss by January 2, 1997 as set forth below.
In the event the loans have been prepaid in full by October 1, 1995,
then Winners shall be entitled to the return of 510,000 shares from
Lender.
Notwithstanding the provisions of Section 4.1(b) to the contrary, the
additional shares will be divided into certificates bearing legends as
follows:
One certificate for 240,000 shares will bear the following legends:
THE SALE, TRANSFER, ASSIGNMENT, OR HYPOTHECATION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE OR ANY INTEREST
THEREIN OR RIGHT WITH RESPECT THERETO MAY BE MADE ONLY IN
ACCORDANCE WITH THE TERMS OF THE LOAN AGREEMENT DATED AS OF
JUNE 27, 1994 AMONG BENNETT MANAGEMENT & DEVELOPMENT CORP.,
MOUNTAINEER PARK, INC., AND WINNERS ENTERTAINMENT, INC., AS IT
MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE
WITH WINNERS ENTERTAINMENT, INC. A TRANSACTION IN VIOLATION OF
SUCH LOAN AGREEMENT WILL BE INEFFECTIVE.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, THE TRANSFER IS MADE IN COMPLIANCE
WITH RULE 144 PROMULGATED UNDER SUCH ACT OR WINNERS
ENTERTAINMENT, INC. RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO WINNERS
ENTERTAINMENT, INC. STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
One certificate for 780,000 shares will bear the following legends:
THE SALE, TRANSFER, ASSIGNMENT, OR HYPOTHECATION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE OR ANY INTEREST
THEREIN OR RIGHT WITH RESPECT THERETO MAY BE MADE ONLY IN
ACCORDANCE WITH THE TERMS OF THE LOAN AGREEMENT DATED AS OF
JUNE 27, 1994 AMONG BENNETT MANAGEMENT & DEVELOPMENT CORP.,
MOUNTAINEER PARK, INC., AND WINNERS ENTERTAINMENT, INC., AS IT
-3-
MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE
WITH WINNERS ENTERTAINMENT, INC. A TRANSACTION IN VIOLATION OF
SUCH LOAN AGREEMENT WILL BE INEFFECTIVE. UNDER SUCH LOAN
AGREEMENT, THE HOLDER OF THESE SECURITIES HAS GRANTED THE
BOARD OF DIRECTORS OF WINNERS ENTERTAINMENT, INC. COMPLETELY
AND EXCLUSIVELY THE VOTING RIGHTS WITH RESPECT TO THE
SECURITIES REPRESENTED BY THIS CERTIFICATE. SUCH GRANT IS
IRREVOCABLE EXCEPT IN CERTAIN CIRCUMSTANCES SET FORTH IN THE
LOAN AGREEMENT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, THE TRANSFER IS MADE IN COMPLIANCE
WITH RULE 144 PROMULGATED UNDER SUCH ACT OR WINNERS
ENTERTAINMENT, INC. RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO WINNERS
ENTERTAINMENT, INC. STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
In the event that the loans have not been prepaid in full by January 1, 1997,
Winners shall issue to Lender on January 2, 1997 the number of Winners shares
times the average market price which would equal $2.5 Million. For purposes
of this agreement the "average market price" shall be deemed to be the
average of the current market prices for the 20 consecutive trading days
prior to January 2, 1997. The number of shares issued would be calculated by
dividing $2.5 Million by the average market price of Winners Common Stock and
in rounding to the nearest whole share.
6. ARTICLE II, Section 2.5 Call is deleted in its entirety.
7. ARTICLE II, Section 2.6 Price Guarantee is deleted in its entirety.
8. ARTICLE II, Section 2.7 Voting Control (a new section) is added to the
agreement as follows:
As long as Lender or any affiliates shall own 5% or more of Winners
Common Stock as granted to Lender under the Agreement and amendments,
Lender hereby grants full voting authority in these common shares owned
to the Winners Board of Directors completely and exclusively. This
grant of voting rights is irrevocable for as long as Lender or an
affiliate owns the shares and Lender would be responsible for informing
Winners in writing upon any sale of shares for which voting control
would revert back to the purchasing shareholder. Lender hereby
covenants that neither it nor any of its affiliates will acquire any of
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Winners' equity or convertible debt securities, either in the open
market or in private transactions to the extent such acquisitions would
result (or could result upon conversion of debt securities) in Lender
owning in the aggregate more than 5% of any class of Winners' securities
as to which the voting rights have not been granted to the Winners
board.
9. ARTICLE III, Section 5.5 Access to Information is amended by adding the
following sentence to the end of such section:
Borrower will supply Lender with monthly financial statements and
quarterly projections of operations completed on a timely basis.
This amendment is not intended to alter or amend any other sections of the
Agreement. Any terms not herein defined shall have the terms set forth in
the Agreement. If any provisions of the agreement or any amendments
contradict the terms herein, then the terms herein shall control.
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IN WITNESS HEREOF, the parties hereto have caused this amendment to be duly
executed and delivered by the proper and duly authorized officers of the day
and your first written above.
BENNETT MANAGEMENT AND DEVELOPMENT CORP.
By: /s/ Patrick R. Bennett
---------------------------------
Name: Patrick R. Bennett
Title: CFO
MOUNTAINEER PARK, INC.
By: /s/ Edson R. Arneault
---------------------------------
Name: Edson R. Arneault
Title: President
WINNERS ENTERTAINMENT, INC.
By: /s/ Edson R. Arneault
---------------------------------
Name: Edson R. Arneault
Title: President
Dates Referenced Herein
| Referenced-On Page |
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| This ‘SC 13D/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/25/99 | | | | | | | None on these Dates |
| | 1/2/97 | | 3 | | 4 |
| | 1/1/97 | | 4 |
| | 11/1/95 | | 2 |
| | 10/1/95 | | 3 |
| | 7/7/95 | | 1 |
| | 6/30/95 | | 1 |
| | 4/10/95 | | 1 |
| | 2/10/95 | | 1 |
| | 12/7/94 | | 1 |
| | 9/27/94 | | 1 |
| | 7/7/94 | | 1 |
| | 6/27/94 | | 1 | | 3 |
| List all Filings |
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