CREDIT AGREEMENT
Dated as of March 31, 1997
XXXXX FARGO BANK, National Association
("Agent Bank, Lender and Bank")
WMCK VENTURE CORP.,
a Delaware corporation,
CENTURY CASINOS CRIPPLE CREEK, INC.,
a Colorado corporation and
WMCK ACQUISITION CORP.,
a Delaware corporation
("Borrowers")
CENTURY CASINOS, INC.,
a Delaware corporation
("Guarantor")
TABLE OF CONTENTS
RECITALS.......................................................................1
ARTICLE I - DEFINITIONS........................................................2
Section 1.01. Definitions.................................................2
Section 1.02. Interpretation and Construction............................26
Section 1.03. Use of Defined Terms.......................................27
Section 1.04. Cross-References...........................................27
Section 1.05. Exhibits and Schedules.....................................28
ARTICLE II - AMOUNT, TERMS AND SECURITY OF THE CREDIT FACILITY................28
Section 2.01. The Credit Facility........................................28
Section 2.02. Use of Proceeds of the Credit Facility.....................29
Section 2.03. Notice of Borrowings.......................................30
Section 2.04. Conditions of Borrowings...................................31
Section 2.05. The Note, Interest Accrual and
Repayment..................................................31
Section 2.06. Place and Manner of Payment................................32
Section 2.07. Fees.......................................................33
Section 2.08. Late Charges and Default Rate..............................34
Section 2.09. Security for the Credit Facility...........................34
Section 2.10. Guaranty Agreement.........................................35
Section 2.11. Net Payments...............................................35
ARTICLE III - CONDITIONS PRECEDENT TO THE CLOSING DATE........................35
A. Closing Conditions.....................................................35
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Section 3.01. Credit Agreement..........................................36
Section 3.02. The Note and Guaranty.....................................36
Section 3.03. Security Documentation....................................36
Section 3.04. Other Loan Documents......................................36
Section 3.05. Articles of Incorporation, Bylaws, Corporate Resolution,
Certificate of Good Standing and Closing
Certificate...............................................36
Section 3.06. Opinion of Counsel........................................37
Section 3.07. Title Insurance Policy....................................37
Section 3.08. Survey....................................................38
Section 3.09. Payment of Taxes..........................................38
Section 3.10. Insurance.................................................38
Section 3.11. Payment of Upfront Fees ..................................38
Section 3.12. Reimbursement for Expenses and
Fees......................................................38
Section 3.13. Schedule of Spaceleases and
Equipment Leases and Contracts............................39
Section 3.14. Phase I Environmental Site
Assessments...............................................39
Section 3.15. Leases....................................................39
Section 3.16. Payments in Full of Existing Real Estate Debt
and Existing Equipment Debt...............................39
Section 3.17. Schedule of all Significant
Litigation................................................39
Section 3.18. Acquisition of Title......................................40
Section 3.19. Financial Statements......................................40
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Section 3.20. No Injunction or Other Litigation.........................40
Section 3.21. Additional Documents and Statements.......................40
B. Conditions Precedent to all Borrowings.....................................40
Section 3.22. Notice of Borrowing.......................................40
Section 3.23. Certain Statements........................................40
Section 3.24. Gaming Permits............................................41
C. Conditions Precedent to Disbursement of Parking Lot Purchase Price.........41
Section 3.25. Legal Description and Deed of Trust.......................41
Section 3.26. Environmental Site Assessment.............................42
Section 3.27. Title Policy or Endorsement...............................42
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
Section 4.01. Organization; Power and Authorization.....................42
Section 4.02. Authority; Compliance with other Agreements and
Instruments and Government Regulations....................43
Section 4.03. Litigation................................................43
Section 4.04. Agreements Legal, Binding, Valid and Enforceable..........44
Section 4.05. Information and Financial Data Accurate;
Financial Statements; No Adverse Change...................44
Section 4.06. Governmental Approvals....................................45
Section 4.07. Payment of Taxes..........................................45
Section 4.08. Title to Properties.......................................45
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Section 4.09. No Untrue Statements.....................................46
Section 4.10. Brokerage Commissions....................................46
Section 4.11. No Defaults..............................................46
Section 4.12. Employee Retirement Income Security Act of 1974..........47
Section 4.13. Subsidiaries.............................................47
Section 4.14. Utility Services.........................................47
Section 4.15. Policies of Insurance....................................47
Section 4.16. Spaceleases..............................................47
Section 4.17. Equipment Leases and Contracts...........................47
Section 4.18. Gaming Permits and Approvals.............................48
Section 4.19. Environmental Certificate................................48
Section 4.20. Compliance with Statutes, etc............................48
Section 4.21. Investment Company Act...................................48
Section 4.22. Public Utility Holding Company Act.......................48
Section 4.23. Labor Relations..........................................48
Section 4.24. Trademarks, Patents, Licenses, Franchises, Formulas
and Copyrights...........................................48
Section 4.25. Contingent Liabilities...................................49
ARTICLE V - GENERAL COVENANTS OF BORROWERS AND GUARANTOR......................49
A. Affirmative Covenants.....................................................49
Section 5.01. FF&E.....................................................49
Section 5.02. Permits; Licenses and Legal Requirements.................50
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Section 5.03. Compliance with Payment Subordination Agreement.........50
Section 5.04. Protection Against Lien Claims...........................50
Section 5.05. No Change in Character of Business.......................50
Section 5.06. Preservation and Maintenance of Properties
and Assets...............................................51
Section 5.07. Repair of Properties and Assets..........................51
Section 5.08. Financial Statements; Reports; Certificates
and Books and Records....................................52
Section 5.09. Insurance................................................54
Section 5.10. Taxes....................................................58
Section 5.11. Permitted Encumbrances Only..............................58
Section 5.12. Advances.................................................59
Section 5.13. Further Assurances.......................................59
Section 5.14. Indemnification..........................................60
Section 5.15. Compliance with other Loan
Documents................................................61
Section 5.16. Suits or Actions Affecting
Borrowers................................................61
Section 5.17. Maintenance of Designated Deposit
Account..................................................61
Section 5.18. Notice to Gaming Authorities
Board....................................................61
Section 5.19. Tradenames, Trademarks and
Servicemarks.............................................61
Section 5.20. Notice of Hazardous Materials............................62
Section 5.21. Compliance with Statutes, etc............................62
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Section 5.22. Compliance with Access Laws.............................63
Section 5.23. Compliance with Golden Horseshoe
Lease and Estoppel Certificate..........................64
Section 5.24. Updated Appraisal.......................................64
Section 5.25. Payment Restriction on BGP Note.........................64
ARTICLE VI - FINANCIAL COVENANTS..............................................64
Section 6.01. Minimum Annual EBITDA...................................65
Section 6.02. Capital Expenditures....................................65
Section 6.03. TFCC Ratio..............................................65
Section 6.04. Restriction on Transfer of Ownership....................65
Section 6.05. Total Indebtedness......................................65
Section 6.06. Contingent Liabilities..................................66
Section 6.07. Other Liens.............................................66
Section 6.08. Consolidation, Merger, Sale of Assets, etc..............66
Section 6.09. Investment Restrictions.................................67
Section 6.10. Ratio of Guarantor Funded Debt
to Borrower Consolidation EBITDA........................67
Section 6.11. ERISA...................................................67
Section 6.12. Margin Regulations......................................68
Section 6.13. No Subsidiaries.........................................68
Section 6.14. Transactions with Affiliates............................68
Section 6.15. Change in Accounting Principles.........................68
ARTICLE VII - EVENTS OF DEFAULT...............................................69
Section 7.01. Events of Default.......................................69
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Section 7.02. Default Remedies........................................72
Section 7.03. Application of Proceeds.................................73
Section 7.04. Notices.................................................74
Section 7.05. Agreement to Pay Attorney's Fees and
Expenses................................................74
Section 7.06. No Additional Waiver Implied by One
Waiver..................................................74
Section 7.07. Licensing of Agent Bank and
Lenders.................................................74
Section 7.08. Exercise of Rights Subject to
Applicable Law..........................................75
Section 7.09. Discontinuance of Proceedings...........................75
ARTICLE VIII - DAMAGE, DESTRUCTION AND CONDEMNATION...........................75
Section 8.01. No Abatement of Payments................................75
Section 8.02. Distribution of Capital Proceeds Upon Occurrence
of Fire, Other Perils or Condemnation...................75
ARTICLE IX - AGENCY PROVISIONS................................................78
Section 9.01. Appointment............................................78
Section 9.02. Nature of Duties.......................................78
Section 9.03. Disbursement of Borrowings.............................79
Section 9.04. Distribution and Apportionment of Payments.............80
Section 9.05. Rights, Exculpation, Etc...............................82
Section 9.06. Reliance...............................................83
Section 9.07. Indemnification........................................83
Section 9.08. Agent Individually.....................................84
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Section 9.09. Successor Agent Bank; Resignation of Agent Bank;
Removal of Agent Bank.................................84
Section 9.10. Consent and Approvals.................................85
Section 9.11. Agency Provisions Relating to Collateral..............88
Section 9.12. Lender Actions Against Collateral.....................91
Section 9.13. Ratable Sharing.......................................91
Section 9.14. Delivery of Documents.................................92
Section 9.15. Notice of Events of Default...........................92
ARTICLE X - GENERAL TERMS AND CONDITIONS......................................92
Section 10.01. Amendments and Waivers................................93
Section 10.02. Failure to Exercise Rights............................94
Section 10.03. Notices and Delivery..................................94
Section 10.04. Modification in Writing...............................95
Section 10.05. Other Agreements......................................95
Section 10.06. Counterparts..........................................95
Section 10.07. Rights, Powers and Remedies are Cumulative............95
Section 10.08. Continuing Representations............................96
Section 10.09. Successors and Assigns................................96
Section 10.10. Assignment of Loan Documents by
by Borrowers or Syndication Interests
by Lenders............................................96
Section 10.11. Action by Lenders.....................................98
Section 10.12. Time of Essence.......................................98
Section 10.13. Choice of Law and Forum...............................98
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Section 10.14. Arbitration .........................................99
Section 10.15. Waiver of Jury Trial................................100
Section 10.16. Scope of Approval and Review........................100
Section 10.17. Severability of Provisions..........................100
Section 10.18. Cumulative Nature of Covenants......................100
Section 10.19. Costs to Prevailing Party...........................100
Section 10.20. Expenses............................................101
Section 10.21. Setoff..............................................102
Section 10.22. Schedules Attached..................................102
Schedule 2.01(a) - Schedule of Lenders' Proportions in Credit Facility
Schedule 2.01(c) - Aggregate Commitment Reduction Schedule
Schedule 3.16(a) - Schedule of Existing Real Estate Debt
Schedule 3.16(b) - Schedule of Existing Equipment Debt
Schedule 3.17 - Schedule of Significant Litigation
Schedule 4.16 - Schedules of Spaceleases
Schedule 4.17 - Schedules of Equipment Leases and Contracts
Schedule 4.25 - Schedule of Contingent Liabilities
Section 10.23 - Exhibits Attached...................................103
Exhibit A - Note - Form
Exhibit B - Guaranty - Form
Exhibit C - Notice of Borrowing - Form
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Exhibit D - Authorized Officer's Certificate - Form
Exhibit E - Closing Certificate - Form
Exhibit F - Compliance Certificate - Form
Exhibit G - Legal Opinion - Form
Exhibit H - Assignment and Assumption Agreement - Form
Exhibit I - Payment Subordination Agreement - Form
Exhibit J - Title Report
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Credit Agreement") is made and entered into as of
the 31st day of March, 1997, by and among WMCK VENTURE CORP., a Delaware
corporation ("WMCKVC"), CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado
corporation ("CCCC") and WMCK ACQUISITION CORP., a Delaware corporation
("WMCKAC" and together with WMCKVC and CCCC, collectively the "Borrowers"),
CENTURY CASINOS, INC., a Delaware corporation (the "Guarantor"), each of the
Lenders, as hereinafter defined, and XXXXX FARGO BANK, National Association, as
administrative and collateral agent for the Lenders (herein in such capacity,
called the "Agent Bank" and, together with the Lenders, collectively referred to
as the "Banks").
RECITALS:
WHEREAS:
A. In this Credit Agreement all capitalized words and terms shall have the
respective meanings and be construed herein as hereinafter provided in Section
1.01 of this Credit Agreement and shall be deemed to incorporate such words and
terms as a part hereof in the same manner and with the same effect as if the
same were fully set forth.
B. WMCKVC is a wholly owned Subsidiary of Guarantor. WMCKAC and CCCC are
each wholly owned Subsidiaries of WMCKVC. Borrowers desire to establish a
reducing revolving line of credit for the purpose of: (i) refinancing the
Existing Real Estate Debt and the Existing Equipment Debt, (ii) financing the
costs of acquisition of the Legends Property, the Diamond Lil's Property and the
Parking Lot Property, and (iii) providing working capital and financing for
general corporate purposes.
X. Xxxxx are willing to establish the Credit Facility in the principal
amount of Thirteen Million Dollars ($13,000,000.00), for the uses and purposes
hereinafter set forth in Section 2.02 and on the terms and subject to the
conditions, covenants and understandings hereinafter set forth and contained in
each of the Loan Documents.
NOW, THEREFORE, in consideration of the foregoing, and other valuable
considerations as hereinafter described, the parties hereto do promise, covenant
and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For the purposes of this Credit Agreement, each
of the following terms shall have the meaning specified with respect thereto,
unless a different meaning clearly appears from the context:
"Access Laws" shall have the meaning ascribed to such term in Section
5.22(a).
"Affiliate(s)" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power to:
(a) vote ten percent (10%) or more of the equity securities (on a fully
diluted basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Agent Bank" shall mean WFB in its capacity as administrative and
collateral agent for Lenders.
"Aggregate Commitment" shall mean reference to the aggregate amount
committed by Lenders for advance to or on behalf of Borrowers as Borrowings
under the Credit Facility in the initial principal amount of Thirteen Million
Dollars ($13,000,000.00), as reduced on each Reduction Date by the Scheduled
Reductions to the Maximum Scheduled Balance, and further subject to the
additional reductions and/or limitations for advance as set forth or
incorporated in the definition of Maximum Permitted Balance.
"Aggregate Commitment Reduction Schedule" shall mean the Aggregate
Commitment Reduction Schedule marked Schedule 2.01(c) affixed hereto and by this
reference incorporated herein and made a part hereof, setting forth the
Scheduled Reductions and Maximum Scheduled Balance as of each Reduction Date
under the Credit Facility.
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"Assignment and Assumption Agreement" shall mean the document evidencing an
assignment of a Syndication Interest by any Lender to an Eligible Assignee in
the form of the Assignment, Assumption and Consent Agreement marked "Exhibit H",
affixed hereto and by this reference incorporated herein and made a part hereof.
"Assignment of Permits, Licenses and Contracts" shall mean the assignment
duly executed by Borrowers as of the Closing Date, pursuant to which Borrowers
assign to Agent Bank on behalf of Lenders, as additional security for the Credit
Facility, all of their right, title and interest in and to all permits, licenses
and contracts relating to the Casino Facilities, except those gaming permits and
licenses and other permits, licenses and contracts which are unassignable, as
the same may be amended, modified, supplemented, replaced, renewed or restated
from time to time.
"Assignment of Spaceleases, Contracts, Rents and Revenues" shall mean the
assignment duly executed by Borrowers as of the Closing Date, whereby Borrowers
assign to Agent Bank on behalf of Lenders, as additional security for the Credit
Facility all Spaceleases and Equipment Leases and Contracts relating to the
Casino Facilities, including, without limitation, all rents, issues, profits,
revenues and income from the Casino Facilities and any other business activity
conducted on the Casino Facilities, together with any and all future expansions
thereof, related thereto or used in connection therewith, as the same may be
amended, modified, supplemented, replaced, renewed or restated from time to
time.
"Assignments" shall mean collective reference to the Assignment of
Spaceleases, Contracts, Rents and Revenues and Assignment of Permits, Licenses
and Contracts.
"Authorized Officer Certificate" shall have the meaning set forth in
Section 3.05(iv).
"Authorized Officer(s)" shall mean, relative to the Borrowers, those of the
respective officers whose signatures and incumbency shall have been certified to
Agent Bank and the Banks as required in Section 3.05(iv) of the Credit Agreement
with the authority and responsibility to deliver Notices of Borrowing,
Compliance Certificates and all other requests, notices, reports, consents,
certifications and authorizations on behalf of Borrowers.
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"Available Borrowings" shall mean, at any time, and from time to time, the
aggregate amount available to Borrowers for a Borrowing not exceeding the amount
of the Maximum Availability, as of each date of determination.
"BGP Note" shall mean that certain Promissory Note dated May 30, 1996, in
the principal amount of Five Hundred Thousand Dollars ($500,000.00) made by
WMCKVC, payable to the order of Banque de Gestion Privee, a company incorporated
in Switzerland.
"Banking Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the States of California and/or
Nevada, or is a day on which banking institutions located in California and/or
Nevada are required or authorized by law or other governmental action to close.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended,
11 U.S.C. Section 101, et seq.
"Banks" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Borrower Consolidation" means reference to the Borrowers on a consolidated
basis, without regard to the Guarantor or any other Subsidiary or Affiliate of
Guarantor.
"Borrowers" shall have the meaning ascribed to such term in the Preamble to
this Credit Agreement.
"Borrowing(s)" shall mean such amounts as Borrowers may request from Agent
Bank from time to time to be advanced under the Credit Facility as Closing
Disbursements or by Notice of Borrowing during the Revolving Credit Period in
the manner provided in Section 2.03.
"CCCC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Capital Expenditures" shall mean, for any period, without duplication, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
during that period and including Capitalized Lease Liabilities) by the Borrowers
during such period that, in conformity with GAAP, are required to be included in
or reflected by the property, plant or equipment or similar fixed or capital
asset accounts reflected in the balance sheet of the Borrowers (including
equipment which is purchased simultaneously with the trade-in of existing
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equipment owned by Borrowers to the extent of (a) the gross amount of such
purchase price less (b) the cash proceeds of trade-in credit of the equipment
being traded in at such time), but excluding capital expenditures made in
connection with the replacement or restoration of assets, to the extent
reimbursed or refinanced from insurance proceeds paid on account of the loss of
or damage to the assets being replaced or restored, or from awards of
compensation arising from the taking by condemnation of or the exercise of the
power of eminent domain with respect to such assets being replaced or restored.
"Capital Proceeds" shall mean the net proceeds (after deducting all
reasonable expenses incurred in connection therewith) available to Borrowers
from: (i) partial or total condemnation or destruction of any part of the
Collateral, (ii) sales of easements, rights of way or similar interests in any
portion of the Real Property, (iii) insurance proceeds (other than rent
insurance and business interruption insurance) received in connection with
damage to or destruction of any part of the Collateral, (iv) the sale or other
disposition of any portion of the Collateral in accordance with the provisions
of this Credit Agreement (not including, however, any proceeds received by
Borrowers from a sale of FF&E if such FF&E is replaced by items of equivalent
value and utility, in each case such exclusion to apply only during any period
in which no Event of Default has occurred and is continuing), and (v) any other
extraordinary receipt of proceeds not in the ordinary course of business and
treated, for accounting purposes, as capital in nature.
"Capitalized Lease Liabilities" means all monetary obligations of Borrowers
under any leasing or similar arrangement which, in accordance with GAAP, would
be classified as capitalized leases, and, for purposes of this Credit Agreement,
the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP, and the stated maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Cash" shall mean, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP.
"Casino Facilities" shall mean collective reference to the Real Property,
the casino businesses and related activities conducted by Borrowers in and on
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the Real Property under the name and style of "Legends", "Diamond Lil's",
the "Golden Horseshoe" and "Xxxxxx'x" and all improvements now or hereafter
situate thereon, together with any other real property, personal property or
interests therein which are used by Borrowers as a part of the operation of the
casino businesses conducted by Borrowers on the Real Property.
"Closing Certificate" shall have the meaning ascribed to such term in
Section 3.05(v).
"Closing Date" shall mean the date upon which: (i) each condition precedent
required under Article IIIA of this Credit Agreement has been satisfied or
waived and (ii) the Security Documentation has been filed and/or recorded in
accordance with and in the manner required by the Depository Closing
Instructions, or such other date as to which Agent Bank and Borrowers agree in
writing.
"Closing Disbursements" shall have the meaning set forth in Section
2.02(a).
"Collateral" shall mean collective reference to all of Borrowers' right,
title and interest in and to: (i) all of the Real Property and the personal
property, FF&E, contract rights, leases, stock, intangibles and other interests
of the Borrowers which are subject to the liens, pledges and security interests
created by the Security Documentation; (ii) all rights of the Borrowers assigned
and/or pledged as additional security pursuant to the terms of the Loan
Documents and Security Documentation; and (iii) any and all other property
and/or intangible rights, interest or benefits inuring to or in favor of the
Borrowers which are in any manner assigned, pledged, encumbered or otherwise
hypothecated in favor of Banks or Agent Bank on behalf of Lenders to secure
payment of the Credit Facility.
"Commitment Letter" shall mean the letter dated February 26, 1997, from WFB
to Borrowers and accepted by Borrowers on February 27, 1997, together with all
attachments and exhibits thereto, setting forth the terms and conditions upon
which WFB committed to establish the Credit Facility in favor of Borrowers, as
may be amended from time to time by written instrument executed by WFB and
Borrowers.
"Compliance Certificate" shall mean the compliance certificates referred to
in Section 5.08, a form for which is set forth on "Exhibit F", affixed hereto
and by this reference incorporated herein and made a part hereof.
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"Contingent Liability(ies)" shall mean, as to any Person, any obligation of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness, leases or dividends ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, (d) to make payment in respect of any net
liability arising in connection with any Interest Rate Xxxxxx, foreign currency
exchange agreement, commodity hedging agreement or any similar agreement or
arrangement in any such case if the purpose or intent of such agreement is to
provide assurance that such primary obligation will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders
of such primary obligation will be protected (in whole or in part) against loss
in respect thereof or (e) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof; provided, however, that
the term Contingent Liability shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Liability shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Liability is made or, if not stated or determinable, the reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Contractual Obligation" means, as to any Person, any provision of any
outstanding securities issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its assets is bound.
"Credit Agreement" shall mean this Credit Agreement executed by and among
Borrowers, Guarantor and Banks setting forth the terms and conditions of the
Credit Facility as it may be amended, modified, extended, renewed or restated
from time to time.
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"Credit Facility" shall mean the agreement of Lenders to fund the Closing
Disbursements on the Closing Date and other Borrowings during the Revolving
Credit Period, subject to the terms and conditions set forth in this Credit
Agreement and the Note, up to the Maximum Permitted Balance as reduced from time
to time in accordance with the terms of this Credit Agreement and the Note.
"Credit Facility Termination" shall mean indefeasible payment in full of
all sums owing under the Note and each of the other Loan Documents and the
irrevocable termination of the obligation of Banks to advance Borrowings.
"Deed of Trust" shall mean the Leasehold and Fee Deed of Trust, Fixture
Filing and Security Agreement with Assignment of Rents to be executed, as of the
Closing Date, by Borrowers, as trustor and debtor, to the Public Trustee of
Teller County, Colorado, as trustee, in favor of Agent Bank on behalf of
Lenders, as beneficiary, for the purposes of providing a security for the Credit
Facility encumbering the Collateral more particularly therein described as a
first mortgage lien, as the same may be amended, modified, supplemented,
replaced, renewed or restated from time to time.
"Default" shall mean the occurrence or non-occurrence, as the case may be,
of any event that with the giving of notice or passage of time, or both, would
become an Event of Default, pursuant to Article VII.
"Default Notice Recording" shall mean either:
(i) the filing with the Public Trustee of Teller County, Colorado, of a
Notice of Election and Demand for Sale pursuant to Colorado Revised Statutes,
Section 00-00-000, or any applicable successor statute, by Agent Bank as
beneficiary under the Deed of Trust, or
(ii) the commencement of a judicial foreclosure action in an appropriate
court in and for the County of Teller, Colorado, pursuant to which Lenders or
Agent Bank on behalf of Lenders seek judicial foreclosure of the Deed of Trust.
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"Default Rate" shall have the meaning set forth in Section 2.08(b).
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Credit Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Banking Business Days
after notice from Agent Bank.
"Depository Closing Instructions" shall mean the Depository Closing
Instructions to be given by Agent Bank to Title Insurance Company at or prior to
the Closing Date setting forth the requirements for the issuance of the Title
Insurance Policy and other conditions for the closing of the Credit Facility, as
it may be amended or modified prior to the Closing Date to the reasonable
satisfaction of Agent Bank, Requisite Lenders and the Borrowers.
"Designated Deposit Account" shall mean a deposit account to be maintained
by Borrowers, as from time to time designated in writing to Agent Bank by an
Authorized Officer.
"Diamond Lil's Property" shall mean that certain real property described as
parcel 3 on the Title Report.
"Dispute" shall have the meaning set forth in Section 10.14(a).
"Distributions" shall mean and collectively refer to any and all cash
dividends, loans, payments (including principal payments made on Subordinated
Debt), advances or other distributions (other than the Closing Disbursement set
forth in Section 2.02(a)(iii)), fees or compensation of any kind or character
whatsoever made by Borrowers to any Person which is not a member of the Borrower
Consolidation, but shall not include consideration paid for tangible and
intangible assets in an arms length exchange for fair market value, trade
payments made and other payments for liabilities incurred in the ordinary course
of business or compensation and fees to officers, directors, members, managers
and employees of Borrowers, all in the ordinary course of business.
"Documents" shall have the meaning set forth in Section 10.14(a).
"Dollars" and "$" means the lawful money of the United States of America.
- 9 -
"EBITDA" shall mean with reference to any Person, for any Fiscal Period
under review, the sum of (i) Net Income for that period, plus (ii) Interest
Expense (accrued and capitalized) for that period, plus (iii) the aggregate
amount of federal and state taxes on or measured by income for that period
(whether or not payable during that period), plus (iv) depreciation,
amortization and all other non-cash expenses for that period, in each case
determined in accordance with GAAP and, in the case of items (ii), (iii) and
(iv), only to the extent deducted in the determination of Net Income for that
period.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eligible Assignee" means (a) another Lender, (b) with respect to any
Lender, any Affiliate of that Lender, (c) any commercial bank, savings and loan
association or savings bank that is organized under the Laws of the United
States of America, any State thereof or the District of Columbia, or (d) any
commercial bank that is organized under the Laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, provided that (A) such bank is acting
through a branch or agency located in the United States of America and (B) such
bank is otherwise exempt from withholding of tax on interest and delivers Form
1001 or Form 4224 at the time of any assignment, and (e) with respect to such
commercial bank or financial institution as described in (a) through (d) above,
no finding of unsuitability has been made or determined by any Gaming Authority.
"Eligible Subparticipant" shall mean any Person which is a bank, savings
and loan association or other financial or lending institution which has not
been found unsuitable as a lender by the Gaming Authorities.
"Environmental Certificate" shall mean the Certificate and Indemnification
Regarding Hazardous Substances to be executed by Borrowers and Guarantor on or
before the Closing Date and delivered to Agent Bank as a further inducement to
the Banks to establish the Credit Facility, as may be amended, modified,
extended, renewed or restated from time to time.
"Equipment Leases and Contracts" shall mean the executed leases and
purchase contracts pertaining to FF&E wherein Borrowers are the lessee or
vendee, as the case may be, as set forth on that certain Schedule of Equipment
Leases and Contracts designated as Schedule 4.17, affixed hereto and by this
reference incorporated herein and made a part hereof.
- 10 -
"Event of Default" shall mean any event of default as defined in Section
7.01 hereof.
"Existing Equipment Debt" shall mean the indebtedness owing by Borrowers
for various items of equipment as shown on the Schedule of Existing Equipment
Debt marked "Schedule 3.16(b)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Existing Equipment Security Documents" shall mean collective reference to
all security agreements, deeds of trust, mortgages, financing statements,
assignments and other instruments securing repayment of all or any portion of
the Existing Equipment Debt.
"Existing Real Estate Debt" shall mean the indebtedness listed on the
Schedule of Existing Real Estate Debt, a copy of which is marked "Schedule
3.16(a)", affixed hereto and by this reference incorporated herein and made a
part hereof.
"Existing Real Estate Security Documents" shall mean collective reference
to all deeds of trust, mortgages, assignments and other security instruments
securing repayment of all or any portion of the Existing Real Estate Debt.
"FF&E" shall mean collective reference to any and all furnishings, fixtures
and equipment, including, without limitation, all Gaming Devices and associated
equipment, which have been installed or are to be installed and used in
connection with the operation of the Casino Facilities and in connection with
any other business operation conducted on the Real Property and those items of
furniture, fixtures and equipment which have been purchased or leased or are
hereafter purchased or leased by Borrowers in connection with the Casino
Facilities and in connection with any other business operation conducted on the
Real Property.
"FIRREA" shall mean the Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to:
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a. the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Banking
Business Day, for the next preceding Banking Business Day) by the Federal
Reserve Bank of New York; or
b. if such rate is not so published for any day which is a Banking Business
Day, the average of the quotations for such day on such transactions received by
the Agent Bank from three (3) federal funds brokers of recognized standing
selected by it.
"Financial Covenant" shall mean individual reference and "Financial
Covenants" shall mean collective reference to the Financial Covenants set forth
in Article VI of the Credit Agreement.
"Financing Statements" shall mean the Uniform Commercial Code Financing
Statements required to be filed with (i) the Office of the Secretary of State of
Colorado, (ii) the Office of the Recorder of Teller County, Colorado, and (iii)
with the Secretary of State of the State in which Borrowers' chief executive
office is located, in order to perfect the security interest granted to Agent
Bank under the Deed of Trust and other Security Documentation in accordance with
the requirements of the Uniform Commercial Code.
"Fiscal Quarter" shall mean the consecutive three (3) month periods during
each Fiscal Year beginning on January 1, April 1, July 1 and October 1, and
ending on December 31, March 31, June 30 and September 30, respectively.
"Fiscal Year" shall mean the fiscal year period beginning January 1 of each
calendar year and ending on the following December 31.
"Fiscal Year End" shall mean December 31 of each calendar year.
"Funded Debt" shall mean for any period the daily average during the last
month of such period of both the long-term and current portions (without
duplication) of all interest bearing Indebtedness and Capitalized Lease
Liabilities, plus the amount of all Contingent Liabilities (other than the
Guaranty) as of the last day of such period.
- 12 -
"Funded Outstandings" shall mean the unpaid principal amount outstanding on
the Credit Facility as of any given date of determination.
"Funding Date" shall mean each date upon which Lenders fund Borrowings
requested by Borrowers in accordance with the provisions of Section 2.03.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Gaming Authorities" means collective reference to the Division of Gaming
of the Colorado Department of Revenue, the Colorado Limited Gaming Control
Commission and each other agency or other political subdivision which has
jurisdiction over the gaming activities of Borrowers at the Casino Facilities.
"Gaming Devices" shall mean slot machines and other devices which
constitute gaming devices and related equipment as defined by the Gaming
Authorities and Gaming Laws.
"Gaming Laws" shall mean the Colorado Limited Gaming Act and the
regulations relating thereto and all other rules, regulations, statutes and
ordinances having authority or with which compliance is required for the conduct
of gambling, gaming and casino activities at the Casino Facilities.
"Gaming Permits" shall mean collective reference to every license, permit
or other authorization required to own, operate and otherwise conduct gambling,
gaming and casino activities at the Casino Facilities, including, without
limitation, all licenses granted by the Gaming Authorities and all other
applicable Governmental Authorities.
"Golden Horseshoe Lease" shall mean collective reference to the following:
(i) that certain "Agreement" which is executed by Xxxxxx Xxxxxxx Xxxxx
("Large"), and by Teller Realty, Inc., a Colorado corporation ("Teller") under
date of August 31, 1994 pursuant to which, among other things, Large leased the
Horseshoe Property to Teller and granted Teller an option to purchase the
- 13 -
Horseshoe Property ( the "Master Lease"); (ii) that certain "Agreement" as
amended by that certain "Addendum to Agreement" and by that certain "Second
Addendum", all of which are executed by Teller and by Gold Creek Associates,
L.P. ("Gold Creek") under date of May 1, 1995 pursuant to which, among other
things, Teller subleased the Horseshoe Property to Gold Creek and granted Gold
Creek a suboption to purchase the Horseshoe Property record notice of which is
recorded in the office of the Clerk and Recorder of Teller County, Colorado on
December 1, 1995 at Reception No. 440946 (collectively, the "Sublease"); and
(iii) that certain "Four Party Agreement, Assignment and Assumption of Lease,
Consent to Assignment of Lease, Confirmation of Option Agreement and Estoppel
Statements" executed by Large, Teller, Gold Creek and WMCKAC under date of July
1, 1996 and recorded in the office of the Clerk and Recorder of Teller County,
Colorado on July 3, 1996 at Reception No. 449555 pursuant to which, among other
things: (aa) Gold Creek assigned all of its right, title and interest in the
Sublease to WMCKAC; (bb) Large and Teller consented to such Assignment; and (cc)
Large and Teller granted certain assurances to WMCKAC regarding the continued
effectiveness of the Lease and Sublease; all as such agreements may hereafter be
extended, renewed, amended, restated or otherwise modified.
"Golden Horseshoe Lease Estoppel Certificate" shall mean an estoppel
certificate duly executed by Xxxxxx Xxxxxxx Xxxxx, as lessor under the Golden
Horseshoe Lease, Teller Realty, Inc., as sublessor under the Golden Horseshoe
Lease, and/or WMCKAC, as sublessee under the Golden Horseshoe Lease (as Agent
Bank shall require) wherein such party(ies) certify(ies) and represent(s) to
Agent Bank on behalf of Lenders that: (a) the Golden Horseshoe Lease represents
the entire agreement between the parties thereto with respect to the Golden
Horseshoe Property; (b) the Golden Horseshoe Lease has not bee modified,
supplemented or amended except as described herein; (c) to the best knowledge of
such party(ies), there are no defaults presently existing or continuing under
any of the provisions of the Golden Horseshoe Lease; (d) other provisions
regarding Agent Bank's entitlement to notice of, and right to cure, such
defaults under the Golden Horseshoe Lease, as Agent Bank shall require; and (e)
such other provisions as may be required by Agent Bank.
"Golden Horseshoe Property" shall mean that certain real property described
as parcel 4 on the Title Report.
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"Government Securities" means readily marketable (a) direct full faith and
credit obligations of the United States of America or obligations guaranteed by
the full faith and credit of the United States of America and (b) obligations of
an agency or instrumentality of, or corporation owned, controlled or sponsored
by, the United States of America that are generally considered in the securities
industry to be implicit obligations of the United States of America.
"Governmental Authority" or "Governmental Authorities" shall mean any
federal, state, regional, county or municipal governmental agency, board,
commission, officer or official whose consent or approval is required or whose
regulations must be followed as a prerequisite to (i) the continued operation
and occupancy of the Real Property and the Casino Facilities or (ii) the
performance of any act or obligation or the observance of any agreement,
provision or condition of whatever nature herein contained.
"Guarantor" shall mean Century Casinos, Inc., a Delaware corporation.
"Guaranty" shall mean the General Continuing Guaranty to be executed by
Guarantor in favor of Agent Bank on behalf of Lenders, a copy of the form of
which is marked "Exhibit B", affixed hereto and by this reference incorporated
herein and made a part hereof, as the same may be amended, modified,
supplemented, replaced, renewed or restated from time to time.
"Hazardous Materials Claims" shall have the meaning set forth in Section
5.20.
"Hazardous Materials Laws" shall have the meaning set forth in Section
5.20.
"Indebtedness" shall mean, as to any Person, without duplication, (a) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money, (b) the deferred purchase price of property or services
(other than accrued expenses, tax liability, deferred taxes, and trade accounts
payable less than ninety (90) days past due and other accrued or deferred
liabilities incurred in the ordinary course of business) which in accordance
with GAAP would be shown on the liability side of the balance sheet of such
Person, (c) the face amount of all letters of credit issued for the account of
such Person and all drafts drawn thereunder, (d) all obligations under
- 15 -
conditional sale or other title retention agreements relating to property
purchased by such Person, (e) all liabilities of the type described in clauses
(a) through (d) or (f) of this definition secured by (or for which the holder of
any such liability has an existing right, contingent or otherwise, to be secured
by) any lien or encumbrance on any property owned by such Person, whether or not
such liabilities have been assumed by such Person, (f) all Capitalized Lease
Liabilities of such Person, and (g) all Contingent Liabilities of such Person in
respect of any indebtedness, obligations or liabilities of any other Person of
the type referred to in clauses (a)-(f) of this definition.
"Indemnified Party" and "Indemnified Parties" shall have the meaning
ascribed to such terms in Section 5.14.
"Interest Expense" shall mean with respect to any Person, as of the last
day of any fiscal period under review, the sum of (i) all interest, fees,
charges and related expenses paid or payable (without duplication) for that
fiscal period by such Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related expenses payable to the
issuer of any letter of credit) or the deferred purchase price of assets that
are considered "interest expense" under GAAP, plus (ii) the portion of the up
front costs and expenses for Interest Rate Xxxxxx (to the extent not included in
(i)) fairly allocated to such interest rate xxxxxx as expenses for such period,
plus (iii) the portions of Capital Lease Liabilities that should be treated as
interest in accordance with GAAP.
"Interest Rate Hedge" shall mean collective reference to any one or more
interest rate swap agreements, interest rate cap agreements, basis swaps,
forward rate agreements and interest collar or floor agreements and all other
interest rate protection products or arrangements designed to protect against
fluctuations in interest rates or currency exchange rates for the purpose of
hedging the interest rates on the Credit Facility.
"Investment" shall mean, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of a
loan, advance creating a debt, capital contribution, guaranty or other debt or
equity participation or interest in any other Person, including any partnership
and joint venture interests of such Person. The amount of any Investment shall
be the amount actually invested without adjustment for subsequent increases or
decreases in the value of such Investment.
- 16 -
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, maritime laws, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
"Legends Property" shall mean that certain real property described as
parcel 1 on the Title Report.
"Lender Reply Period" shall have the meaning set forth in Section 9.10(d).
"Lenders" means WFB and any other bank, finance company, insurance or other
financial institution which is or becomes a party to this Credit Agreement by
execution of a counterpart signature page hereto or by execution of an
Assignment and Assumption Agreement, as assignee. At all times that there are no
Lenders other than WFB, the terms "Lender" and "Lenders" means WFB in its
individual capacity. With respect to matters requiring the consent to or
approval of all Lenders at any given time, all then existing Defaulting Lenders
will be disregarded and excluded, and, for voting purposes only, "all Lenders"
shall be deemed to mean "all Lenders other than Defaulting Lenders".
"Liabilities and Costs" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and consulting fees and
costs of investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"Loan Documents" shall mean the collective reference to this Credit
Agreement, the Note, the Security Documentation, the Upfront Fee Side Letter,
Guaranty, Environmental Certificate and all other instruments and agreements
required to be executed by or on behalf of Borrowers, Guarantor, or any other
Person in connection with the Credit Facility for the benefit of Banks or Agent
Bank on behalf of the Lenders, as the same may be amended, modified,
supplemented, replaced, renewed or restated from time to time.
"MWCI" shall mean MWCI Management, a Nevada corporation.
- 17 -
"Margin Stock" shall have the meaning provided in Regulation U of the Board
of Governors of the Federal Reserve System.
"Material Adverse Change" shall mean any change which is material and
adverse to the Collateral or the condition (financial or otherwise) or business
operations of the Borrowers taken as a whole or the ability of Borrowers taken
as a whole to perform their obligations under the Loan Documents or the ability
of any of the Lenders to enforce any of their rights or remedies under any of
the Loan Documents.
"Material Adverse Effect" means any set of circumstances or events which
(a) has or would reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document, (b) is or
would reasonably be expected to result in a Material Adverse Change, (c)
materially impairs or would reasonably be expected to materially impair the
ability of the Borrowers to perform its obligations under the Credit Agreement
or any other Loan Document, or (d) materially impairs or would reasonably be
expected to materially impair the ability of the Agent Bank, Banks, or any of
them, to enforce their legal remedies pursuant to the Loan Documents.
"Maturity Date" shall mean April 1, 2001.
"Maximum Availability" shall mean the Maximum Permitted Balance less the
Funded Outstandings.
"Maximum Permitted Balance" shall mean the maximum amount of principal
which may be outstanding on the Credit Facility from time to time which shall be
the lesser of: (a) the Maximum Scheduled Balance, or (b) the amount to which the
Maximum Scheduled Balance is voluntarily reduced by Borrower pursuant to Section
2.01(c) or is otherwise reduced or limited pursuant to Sections 5.01, 5.12 or
8.02 or by Scheduled Reductions.
"Maximum Scheduled Balance" shall mean the maximum amount of scheduled
principal which may be outstanding on the Credit Facility from time to time in
the amount of the Aggregate Commitment as of the Closing Date, as reduced from
time to time by the Scheduled Reductions as set forth on the Aggregate
Commitment Reduction Schedule.
- 18 -
"Net Income" shall mean with respect to any Person for any fiscal period,
the net income of such Person during such fiscal period determined in accordance
with GAAP, consistently applied.
"Non-Financed Capital Expenditures" shall mean Capital Expenditures which
are paid by any member of the Borrower Consolidation from assets of the Borrower
Consolidation and not from the Credit Facility or through any other loan, credit
agreement, lease or financing from any source.
"Non-Pro Rata Borrowing" means a Borrowing with respect to which fewer than
all Lenders have funded their respective Pro Rata Shares of such Borrowing and
the failure of the non-funding Lender or Lenders to fund its or their respective
Pro Rata Shares of such Borrowing constitutes a breach of this Credit Agreement.
"Nonusage Fee" shall have the meaning ascribed to such term in Section
2.07(b) of this Credit Agreement.
"Note" shall mean the Revolving Credit Note, a copy of which is marked
"Exhibit A", affixed hereto and by this reference incorporated herein and made a
part hereof, to be executed by Borrowers on the Closing Date, payable to the
order of Agent Bank on behalf of the Lenders, evidencing the Credit Facility, as
the same may be amended, modified, supplemented, replaced, renewed or restated
from time to time.
"Notice of Borrowing" shall have the meaning set forth in Section 2.03.
"Obligations" means, from time to time, all Indebtedness of Borrowers owing
to Agent Bank, any Lender or any Person entitled to indemnification pursuant to
Section 5.14, or any of their respective successors, transferees or assigns, of
every type and description, whether or not evidenced by any note, guaranty or
other instrument, arising under or in connection with this Credit Agreement or
any other Loan Document, whether or not for the payment of money, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
The term includes, without limitation, all interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements, reasonable fees and disbursements
of expert witnesses and other consultants, and any other sum now or hereinafter
- 19 -
chargeable to Borrowers under or in connection with Credit Agreement or any
other Loan Document. Notwithstanding the foregoing definition of "Obligations",
Borrowers' obligations under any environmental indemnity agreement constituting
a Loan Document, or any environmental representation, warranty, covenant,
indemnity or similar provision in this Credit Agreement or any other Loan
Document, shall be secured by the Collateral only to the extent, if any,
specifically provided in the Security Documentation.
"Parking Lot Lease" shall mean collective reference to that certain Lease
and that certain Option Agreement each dated March 1, 1997 and executed by and
between MWCI, as landlord/seller, and WMCKVC, as tenant/purchaser, under the
terms of which WMCKVC leases the Parking Lot Property from MWCI for an initial
term of six (6) months, subject to an automatic renewal for an additional six
(6) month period, and MWCI grants unto WMCKVC an option to purchase the Parking
Lot Property at any time during the lease term for the Parking Lot Purchase
Price.
"Parking Lot Property" shall mean that certain real property described in
the Parking Lot Lease.
"Parking Lot Purchase Price" shall mean the purchase price for the Parking
Lot Property as set forth in the Parking Lot Lease in the amount of Seven
Hundred Eighty-Five Thousand Dollars ($785,000.00).
"Payment Subordination Agreement" shall mean the Payment Subordination
Agreement to be executed by Guarantor in favor of Agent Bank on behalf of the
Lenders on or before the Closing Date in the form of the Payment Subordination
Agreement marked "Exhibit I", affixed hereto and by this reference incorporated
herein and made a part hereof.
"Pension Plan" means any "employee pension benefit plan" that is subject to
Title IV of ERISA and which is maintained for employees of Borrower or any of
its ERISA Affiliates.
"Permitted Encumbrances" shall mean, at any particular time, (i) liens for
taxes, assessments or governmental charges not then due, payable and delinquent
or being contested in good faith, (ii) liens for taxes, assessments or
governmental charges not then required to be paid pursuant to Section 5.10 or
being contested in good faith, (iii) liens in favor of Agent Bank or any Lender
- 20 -
created or contemplated by the Security Documentation, or securing Secured
Interest Rate Xxxxxx, (iv) the liens, encumbrances and restrictions on the Real
Property and existing improvements which are allowed by Banks to appear in
Schedule B, Part I and II of the Title Insurance Policy relating to such Real
Property at the Closing Date, (v) liens in favor of Agent Bank on behalf of the
Lenders or consented to in writing by Agent Bank, (vi) easements, licenses or
rights-of-way, hereafter granted to any Governmental Authority or public utility
providing services to the Casino Facilities which are first approved in writing
by the Agent Bank, (vii) judgment liens on property other than the Collateral
which do not constitute an Event of Default, (viii) statutory liens of
landlords, revenue authorities and materialmen and other similar liens imposed
by law incurred in the ordinary course of business which could not reasonably be
expected to cause a Material Adverse Effect and which are discharged in
accordance with Section 5.04, (ix) liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return- of-money
bonds and other similar obligations; (x) leases, concessions or subleases
granted to others not interfering in any material respect with the ordinary
conduct of the business of Borrower; and (xi) liens or other minor defects,
encroachments or irregularities in title that do not have a Material Adverse
Effect.
"Person" means an individual, firm, corporation, trust, association,
partnership, joint venture, tribunal or other entity.
"Policies of Insurance" shall mean the insurance to be obtained and
maintained by Borrower throughout the term of this Credit Agreement as provided
by Section 5.09 herein.
"Post Foreclosure Plan" shall have the meaning set forth in Section
9.11(e).
"Prime Rate" shall mean the rate of interest per annum which WFB from time
to time identifies and publicly announces at its principal office in San
Francisco, California, as its "prime rate" or "reference rate" and is not
necessarily, for example, the lowest rate of interest which WFB collects from
any borrower or group of borrowers.
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"Principal Prepayments" shall have the meaning set forth in Section 2.06(a)
of this Credit Agreement.
"Pro Rata Share" means, with respect to any Lender, a percentage equal to
such Lender's Syndication Interest in the Credit Facility as set forth on
Schedule of Lenders' Proportions in Credit Facility.
"Protective Advance" means all sums expended as determined by Agent Bank to
be necessary to: (a) protect the priority, validity and enforceability of the
Security Documentation on, and security interests in, any Collateral and the
instruments evidencing or securing the Obligations, or (b) prevent the value of
any Collateral from being materially diminished (assuming the lack of such a
payment within the necessary time frame could potentially cause such Collateral
to lose value), or (c) protect any of the Collateral from being materially
damaged, impaired, mismanaged or taken, including, without limitation, any
amounts expended in accordance with Section 10.20 or post-foreclosure ownership,
maintenance, operation or marketing of any Collateral.
"Real Property" shall mean the land which is the subject of and
particularly described in the Title Report, together with all improvement now or
hereafter situate thereon.
"Reduction Date(s)" shall mean reference to each Reduction Date, as the
context may require as set forth on the Aggregate Commitment Reduction Schedule.
"Reportable Event" shall mean a reportable event as defined in Title IV of
ERISA, except actions of general applicability by the Secretary of Labor under
Section 110 of ERISA.
"Requisite Lenders" mean, collectively, Lenders whose Pro Rata Shares, in
the aggregate, are at least sixty-six and two-thirds percent (66-2/3%), provided
that, (i) in determining such percentage at any given time, all then existing
Defaulting Lenders will be disregarded and excluded and the Pro Rata Shares of
Lenders shall be redetermined, for voting purposes only, to exclude the Pro Rata
Shares of such Defaulting Lenders, and (ii) notwithstanding the foregoing, at
all times when two or more Lenders are party to this Credit Agreement, the term
Requisite Lenders shall in no event mean less than two (2) Lenders.
- 22 -
"Revolving Credit Period" shall mean the period commencing on the Closing
Date and terminating on the Maturity Date.
"Schedule of Lenders' Proportions in Credit Facility" shall mean the
Schedule of Lenders' Proportions in Credit Facility, a copy of which is set
forth as Schedule 2.01(a), affixed hereto and by this reference incorporated
herein and made a part hereof, setting forth the respective Syndication Interest
and maximum amount to be funded under the Credit Facility by each Lender, as the
same may be amended or restated from time to time in connection with an
Assignment and Assumption Agreement.
"Schedule of Significant Litigation" shall mean the Schedule of Significant
Litigation, a copy of which is set forth as Schedule 3.17, affixed hereto and by
this reference incorporated herein and made a part hereof, setting forth the
information described in Section 3.17 with respect to each Significant
Litigation.
"Scheduled Reductions" shall mean the amount by which the Aggregate
Commitment is reduced on each Reduction Date as set forth on the Aggregate
Commitment Reduction Schedule.
"Secured Interest Rate Hedge(s)" shall mean any Interest Rate Hedge entered
into between Borrowers and any Lender, or Affiliate of any Lender, which is
secured by the Deed of Trust.
"Security Documentation" shall mean collective reference to the Deed of
Trust, Financing Statements, Assignments, Trademark Security Agreement and all
other instruments and agreements to be executed by or on behalf of Borrowers or
other applicable Persons, in favor of Agent Bank on behalf of the Lenders
securing repayment of the Credit Facility.
"Significant Litigation" shall mean each action, suit, proceeding,
litigation and controversy involving any Borrower involving claims in excess of
One Million Dollars ($1,000,000.00) or which if determined adversely to the
interests of such Borrower, could have a Material Adverse Effect.
"Spaceleases" shall mean the executed leases and concession agreements
pertaining to the Casino Facilities, or any portion thereof, wherein Borrower is
the lessor, as set forth on that certain Schedule of Spaceleases designated as
Schedule 4.16, affixed hereto and by this reference incorporated herein and made
a part hereof.
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"Subordinated Debt" shall mean collective reference to: (i) the unsecured
intercompany Indebtedness, owing by WMCKAC and assumed by WMCKVC, payable to the
order of Guarantor in the approximate amount of Six Million One Hundred
Ninety-One Thousand Dollars ($6,191,000.00) evidenced by a Promissory Note dated
June 27, 1996, as amended by an Assignment, Assumption and Amendment Agreement
dated as of March 31, 1997, which Subordinated Debt shall be structurally and
contractually subordinated to the Credit Facility by execution of the Payment
Subordination Agreement by Borrowers and Guarantor in favor of Agent Bank, and
(ii) any other unsecured intercompany Indebtedness owing by any Borrower to
Guarantor which is permitted and incurred in accordance with Section 6.05(e).
"Subsidiary" shall mean, on the date in question, any Person of which an
aggregate of 50% or more of the stock of any class or classes (or equivalent
interests) is owned of record or beneficially, directly or indirectly, by
another Person and/or any of its Subsidiaries, if the holders of the stock of
such class or classes (or equivalent interests) (a) are ordinarily, in the
absence of contingencies, entitled to vote for the election of a majority of the
directors (or individuals performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such a
contingency, or (b) are entitled, as such holders, to vote for the election of a
majority of the directors (or individuals performing similar functions) of such
Person, whether or not the right so to vote exists by reason of the happening of
a contingency.
"Syndication Interest" shall mean the proportionate interest of each Lender
in the Credit Facility as set forth on the Schedule of Lenders' Proportions in
Credit Facility, as the same may be amended or restated from time to time.
"TFCC Ratio" shall be defined as follows:
Net profit after cash taxes, plus depreciation and amortization, plus
Interest Expense (accrued and capitalized), less Distributions paid,
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less Non-Financed Capital Expenditures incurred during the period
under review,
Divided by (/)
Current portion of scheduled principal and actual interest payments on
long term debt and Capitalized Lease Liabilities, including actual
interest and principal paid on Subordinated Debt.
"Taxes" shall have the meaning set forth in Section 2.11.
"Title Insurance Company" shall mean Ticor Title Insurance Company and its
issuing agent, Pikes Peak Title Services, Inc., with offices located at 000 X.
Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, together with such reinsurers with
direct access as are requested by Agent Bank or other title insurance company or
companies as may be acceptable to Agent Bank.
"Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders
Policy of Title Insurance, and the endorsements thereto, which are to be issued
by Title Insurance Company, as of the Closing Date, in the amount of Thirteen
Million Dollars ($13,000,000.00), in favor of Agent Bank, insuring the Deed of
Trust as a first priority mortgage lien (a first priority lien on the
subleasehold and suboption interests of Borrowers as to the Golden Horseshoe
Property) encumbering the Real Property therein described subject only to the
exceptions shown therein in Schedule B, Part I, all in accordance with the
Depository Closing Instructions.
"Title Report" shall refer to the Commitment for Title Insurance Commitment
issued by Title Insurance Company, as its Commitment No. TLC32010, a copy of
which is marked "Exhibit J", affixed hereto and by this reference incorporated
herein and made a part hereof.
"Upfront Fee" shall have the meaning ascribed to such term in Section
2.07(a).
"Upfront Fee Side Letter" shall mean the confidential letter dated
concurrently herewith, executed by and between Borrowers and Agent Bank
concerning payment of the Upfront Fee.
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"Voluntary Reduction" shall have the meaning set forth in Section 2.01(c).
"WFB" shall mean Xxxxx Fargo Bank, National Association.
"WMCKAC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"WMCKVC" shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Xxxxxxx Property" shall mean that certain real property described as
parcel 2 on the Title Report.
Section 1.02. Interpretation and Construction. In this Credit Agreement,
unless the context otherwise requires:
(i) Articles and Sections mentioned by number only are the respective
Articles and Sections of this Credit Agreement as so numbered;
(ii) Words importing a particular gender mean and include every other
gender, and words importing the singular number mean and include the
plural number and vice versa;
(iii) All times specified herein, unless otherwise specifically
referred, shall be the time in San Francisco, California;
(iv) Any headings preceding the texts of the several Articles and
Sections of this Credit Agreement, and any table of contents or
marginal notes appended to copies hereof, shall be solely for
convenience of reference and shall not constitute a part of this
Credit Agreement, nor shall they affect its meaning, construction or
effect;
(v) If any clause, definition, provision or Section of this Credit
Agreement shall be determined to be apparently contrary to or
conflicting with any other clause, definition, provision or Section of
this Credit Agreement then the clause, definition, provision or
Section containing the more specific provisions shall control and
govern with respect to such apparent conflict. The parties hereto do
agree that each has contributed to the drafting of this Credit
Agreement and all Loan Documents and that the provisions herein
contained shall not be construed against either Borrower or Lenders as
having been the person or persons responsible for the preparation
thereof;
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(vi) The terms "herein", "hereunder", "hereby", "hereto", "hereof" and
any similar terms as used in the Credit Agreement refer to this Credit
Agreement; the term "heretofore" means before the date of execution of
this Credit Agreement; and the term "hereafter" means after the date
of the execution of this Credit Agreement;
(vii) All accounting terms used herein which are not otherwise
specifically defined shall be used in accordance with GAAP
consistently applied;
(viii) If any clause, provision or Section of this Credit Agreement
shall be ruled invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render
unenforceable any of the remaining provisions hereof; and
(ix) Each reference to this Credit Agreement or any other Loan
Document or any of them, as used in this Credit Agreement or in any
other Loan Document, shall be deemed a reference to this Credit
Agreement or such Loan Document, as applicable, as the same may be
amended, modified, supplemented, replaced, renewed or restated from
time to time.
Section 1.03. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Credit
Agreement shall have such meanings when used in the Note and in each Loan
Document and other communication delivered from time to time in connection with
this Credit Agreement or any other Loan Document.
Section 1.04. Cross-References. Unless otherwise specified, references in
this Credit Agreement and in each other Loan Document to any Article or Section
are references to such Article or Section of this Credit Agreement or such other
Loan Document, as the case may be, and, unless otherwise specified, references
in any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.
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Section 1.05. Exhibits and Schedules. All Exhibits and Schedules to this
Credit Agreement, either as originally existing or as the same may from time to
time be supplemented, modified, amended or restated are incorporated herein by
this reference.
ARTICLE II
AMOUNT, TERMS AND SECURITY OF THE CREDIT FACILITY
Section 2.01. The Credit Facility.
a. Subject to the conditions and upon the terms hereinafter set forth and
in accordance with the terms and provisions of the Note, Lenders severally agree
in the proportions set forth on the Schedule of Lenders' Proportions in Credit
Facility, marked Schedule 2.01(a) attached hereto and by this reference
incorporated herein and made a part hereof, to lend and advance Borrowings to
Borrowers, up to the Maximum Permitted Balance, in such amounts as Borrowers may
request by: (i) Notice of Borrowing duly executed by an Authorized Officer and
delivered to Agent Bank on or before three (3) Banking Business Days prior to
the Closing Date for the purpose of requesting funding of the Closing
Disbursements, and (ii) Notice of Borrowing duly executed by an Authorized
Officer and delivered to Agent Bank from time to time during the Revolving
Credit Period when and as provided in Section 2.03; provided, however,
notwithstanding anything herein contained to the contrary, until WMCKVC has
acquired fee title to the Parking Lot Property, a portion of the Credit Facility
equal to the Parking Lot Purchase Price shall not be available for Borrowing
hereunder for any purpose other than the acquisition by WMCKVC of fee title to
the Parking Lot Property in accordance with the requirements of Article III C.
b. During the Revolving Credit Period, Borrowers may borrow, repay and
reborrow the Available Borrowings up to the Maximum Permitted Balance from time
to time, provided that at all times the Maximum Availability shall be no less
than zero (0). The Credit Facility shall be for a term commencing on the Closing
Date and terminating on the Maturity Date, on which date the entire outstanding
balance of the Credit Facility shall be fully paid and Credit Facility
Termination shall occur. In no event shall any Lender be liable to fund any
amounts under the Credit Facility in excess of its respective Syndication
Interest in any Borrowing.
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c. Notwithstanding the Scheduled Reductions to the Maximum Scheduled
Balance as set forth on the Aggregate Commitment Reduction Schedule, Schedule
2.01(c) attached hereto and by this reference incorporated herein and made a
part hereof, Borrowers may voluntarily further reduce the Maximum Permitted
Balance from time to time (a "Voluntary Reduction") on the following conditions:
(i) that each such Voluntary Reduction be made in writing by an
Authorized Officer, effective on the fifth (5th) Banking Business Day
following receipt by Agent Bank; and
(ii) that each such Voluntary Reduction shall be irrevocable and a
permanent reduction to the Maximum Permitted Balance.
d. In the event any Scheduled Reduction or Voluntary Reduction reduces the
Maximum Permitted Balance to less than the sum of the Funded Outstandings, the
Borrowers shall immediately cause the Funded Outstandings to be reduced by such
amount as may be necessary to cause the Funded Outstandings to be equal to or
less than the Maximum Permitted Balance.
Section 2.02. Use of Proceeds of the Credit Facility. Available Borrowings
shall be used for the purposes of:
a. On the Closing Date (collectively the "Closing Disbursements"):
(i) paying in full all loans and advances outstanding under the Existing
Real Estate Debt and the Existing Equipment Debt as of the Closing
Date;
(ii) financing the costs of acquisition by CCCC of fee title to the Legends
Property and the costs of acquisition by WMCKAC of fee title to the
Diamond Lil's Property;
(iii)Nine Hundred Twenty-Three Thousand Dollars ($923,000.00) toward
repayment of outstanding Indebtedness owing by Borrowers to Guarantor;
and
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(iv) paying in full the Upfront Fee, the costs, fees and expenses of Title
Company incurred in connection with the issuance of the Title Policy,
the costs, fees and expenses of Xxxxxxxxx & Xxxxxx, attorneys for
Agent Bank, and associate counsel and insurance consultants retained
by them incurred to the Closing Date.
b. During the Revolving Credit Period:
(i) funding working capital needs of Borrowers relating to the Casino
Facilities;
(ii) financing Distributions to Guarantor to the extent not prohibited by
the Financial Covenants and so long as no Default or Event of Default
would result from the making of such Distributions;
(iii)financing the costs of acquisition by WMCKVC of fee title to the
Parking Lot Property, subject to compliance with the requirements of
Article III C; and
(iv) funding ongoing Capital Expenditure requirements of Borrowers relating
to the Casino Facilities.
Section 2.03. Notice of Borrowings.
a. Borrowings shall be made through Agent Bank's credit sweep product.
Provided, however, for each Borrowing in excess of Five Hundred Thousand Dollars
($500,000.00), an Authorized Officer shall give Agent Bank, no later than 11:00
a.m. on a Banking Business Day at Agent Bank's office specified in Section
2.06(b), two (2) full Banking Business Days prior written notice in the form of
the Notice of Borrowing ("Notice of Borrowing"), a copy of which is marked
"Exhibit C", affixed hereto and by this reference incorporated herein and made a
part hereof, for each proposed Borrowing to be made during the Revolving Credit
Period. Agent Bank shall give prompt, and in any event within one (1) Banking
Business Day, notice of each Notice of Borrowing to Lenders of the amount to be
funded and specifying the Funding Date. Not later than 11:00 o'clock a.m. on the
Funding Date specified, each Lender shall disburse to Agent Bank the Pro Rata
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Share to be advanced by each such Lender in lawful money of the United
States of America and in immediately available funds. Agent Bank shall make the
proceeds of such fundings received by it on or before 11:00 o'clock a.m. from
the Lenders available to Borrowers by depositing in or wiring to, prior to 1:00
o'clock p.m. on the day so received (but not prior to the Funding Date), the
Designated Deposit Account the amounts received from the Lenders. No Borrowing
may exceed the Available Borrowings.
b. The failure of any Lender to fund its Pro Rata Share of any Borrowing on
any Funding Date shall not relieve any other Lender of any obligation hereunder
to fund its Pro Rata Share of such Borrowing on such Funding Date nor relieve
the Lender which has failed to fund of its obligations to Borrowers hereunder.
No Lender shall be responsible for the failure of any other Lender to fund its
Pro Rata Share of such Borrowing on any Funding Date nor shall any Lender be
responsible for the failure of any other Lender to perform its respective
obligations hereunder.
Section 2.04. Conditions of Borrowings.
During the Revolving Credit Period, Borrowings will only be made so long as
Borrowers are in full compliance with each of the requirements and conditions
precedent set forth in Article III B of this Credit Agreement. Provided,
however, upon the consent of the Requisite Lenders, Lenders shall advance
Borrowings notwithstanding the existence of less than full compliance with the
requirements of Article III B and Borrowings so made shall be deemed to have
been made pursuant to this Credit Agreement.
Section 2.05. The Note, Interest Accrual and Repayment.
The Credit Facility shall be evidenced by the Note which shall be executed
by the Borrowers and shall be jointly and severally payable to the order of
Agent Bank on behalf of the Lenders. Borrowers waive any rights which they might
otherwise have under Colorado Revised Statutes xx.xx. 00-00-000 or 00-00-000 (or
under any corresponding future statute or rule of law in any jurisdiction) by
reason of any release of fewer than all of the Borrowers. The amount of each
Borrowing shall be recorded on Agent Bank's internal data control systems and
each payment of principal and/or interest with respect to the Credit Facility or
any portion thereon, when applied, shall be evidenced by entries made by Agent
Bank in Agent Bank's internal data control system showing the date and amount of
each payment of principal and interest with respect thereto. Agent Bank shall
provide Borrowers and Guarantor with a copy of such entries upon the written
request of
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Borrowers and/or Guarantor. The aggregate unpaid balance of principal and
interest of the Note as set forth on the most recent data control system
printout of Agent Bank shall be rebuttably presumptive evidence of the sums
owing and unpaid on the Note. The Note shall bear interest and be due and
payable in the manner and at the times set forth therein, the terms whereof are
by this reference incorporated herein and made a part hereof as though fully set
forth.
Section 2.06. Place and Manner of Payment.
a. All amounts payable by Borrowers to the Lenders shall be made to Agent
Bank on behalf of Lenders pursuant to the terms of this Credit Agreement and the
Note and shall be made on a Banking Business Day in lawful money of the United
States of America and in immediately available funds.
b. All such amounts payable by Borrowers shall be made to Agent Bank at its
office located at Xxxxx Fargo Agency Department, 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. If such payment is received by Agent Bank prior
to 11:00 o'clock a.m., Agent Bank shall credit Borrowers with such payment on
the day so received and shall disburse to the appropriate Lenders on the same
day such Lenders' Pro Rata Shares of payments relating to the Credit Facility
based on the respective Syndication Interests, in immediately available funds.
If such payment is received by Agent Bank after 11:00 o'clock a.m., Agent Bank
shall credit Borrowers with such payment as of the next Banking Business Day and
disburse to the appropriate Lenders on the next Banking Business Day such
Lenders' Pro Rata Shares of such payment relating to the Credit Facility based
on their respective Syndication Interests, in immediately available funds. Any
payment on the Credit Facility made by Borrowers to Agent Bank pursuant to the
terms of this Credit Agreement or the Note for the account of Lenders shall
constitute payment to the appropriate Lenders. If the Note or any payment
required to be made thereon or hereunder, is or becomes due and payable on a day
other than a Banking Business Day, the due date thereof shall be extended to the
next succeeding Banking Business Day and interest thereon shall be payable at
the then applicable rate during such extension.
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c. Unless the Agent Bank receives notice from an Authorized Officer prior
to the date on which any payment is due to the Lenders that the Borrowers will
not make such payment in full as and when required, the Agent Bank may assume
that the Borrowers have made such payment in full to the Agent Bank on such date
in immediately available funds and the Agent Bank may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrowers have not made such payment in full to the Agent Bank, each
Lender shall repay to the Agent Bank on demand such amount distributed to such
Lender, together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Lender until the date repaid.
Section 2.07. Fees.
a. On the Closing Date, Borrowers shall pay the unpaid balance of the
non-refundable upfront fee (the "Upfront Fee"), in such amount as has been
agreed upon by Agent Bank and Borrowers in the Upfront Fee Side Letter, which
Upfront Fee shall be retained by Agent Bank or distributed in whole or in part
to Lenders as may be agreed between Agent Bank and Lenders.
b. Commencing with the commencement of the Revolving Credit Period,
Borrowers shall pay to Agent Bank for disbursement to Lenders in proportion to
their respective Syndication Interests in the Credit Facility and in
consideration for their commitment to advance Borrowings under the Credit
Facility during the Revolving Credit Period a non-refundable fee (the "Nonusage
Fee") in the amount of one-half of one percent (.50%) per annum of the daily
average of the Maximum Availability, computed on the basis of a three hundred
sixty (360) day year based on the actual number of days elapsed, to be
calculated during the Revolving Credit Period and continuing until the Maturity
Date. The Nonusage Fee will be payable on the first Banking Business Day
following the end of each Fiscal Quarter commencing with the Fiscal Quarter in
which the Closing Date occurs, and on the Maturity Date. Each Nonusage Fee shall
be distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility.
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Section 2.08. Late Charges and Default Rate.
a. If any principal reduction, interest payment, fee or other Obligation
due under the Note or under the Credit Agreement is not paid within five (5)
days of the date upon which such payment is due, Borrowers promise to pay a late
charge in the amount of three percent (3%) of the amount of such delinquent
payment and Agent Bank need not accept any late payment made unless it is
accompanied by such three percent (3%) late payment charge. Any late charge
shall be paid to Lenders in proportion to their respective Syndication
Interests.
b. In the event of the existence of an Event of Default, commencing on the
first (1st) Banking Business Day following the receipt by Borrowers of written
notice of the occurrence of such Event of Default from Agent Bank, the total of
the unpaid balance of the principal and the then accrued and unpaid interest
owing under the Credit Facility shall collectively commence accruing interest at
a rate equal to five percent (5%) over the Prime Rate (the "Default Rate") until
such time as all payments and additional interest are paid, together with the
curing of any Events of Default which may exist, at which time the interest rate
shall revert to that rate of interest otherwise accruing pursuant to the terms
of the Note.
c. In the event of the occurrence of an Event of Default, Borrowers agree
to pay all reasonable costs of collection, including a reasonable attorneys'
fee, in addition to and at the time of the payment of such sum of money and/or
the performance of such acts as may be required to cure such default. In the
event legal action is commenced for the collection of any sums owing hereunder
or under the terms of the Note, the Borrowers and Guarantor agree that any
judgment issued as a consequence of such action against any Borrower and/or
Guarantor shall bear interest at a rate equal to the Default Rate until fully
paid.
Section 2.09. Security for the Credit Facility.
As security for the due and punctual payment and performance of the terms
and provisions of this Credit Agreement, the Note and each of the other Loan
Documents, the Security Documentation shall be executed and delivered to Agent
Bank, as of the Closing Date, by the respective parties to each of the Security
Documentation.
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Section 2.10. Guaranty Agreement.
As additional security for the due and punctual payment and performance of
the Credit Facility and each of the terms, covenants, representations,
warranties and provisions herein contained and contained in each of the Loan
Documents, on or before the Closing Date Guarantor shall execute the Guaranty, a
copy of which is marked "Exhibit B", affixed hereto and by this reference
incorporated herein and made a part hereof.
Section 2.11. Net Payments.
All payments under this Credit Agreement, the Note and/or any other Loan
Document shall be made without set-off or counterclaim and in such amounts as
may be necessary in order that all such payments, after deduction or withholding
for or on account of any future taxes, levies, imposts, duties or other charges
of whatsoever nature imposed by the United States or any Governmental Authority,
other than franchise taxes or any tax on or measured by the gross receipts or
overall net income of any Lender pursuant to the income tax laws of the United
States or any State, or the jurisdiction where each Lender's principal office is
located (collectively "Taxes"), shall not be less than the amounts otherwise
specified to be paid under this Credit Agreement and the Note. A certificate as
to any additional amounts payable to the Lenders under this Section 2.11
submitted to the Borrowers by the Lenders shall show in reasonable detail an
accounting of the amount payable and the calculations used to determine in good
faith such amount and shall be conclusive absent manifest or demonstrable error.
Any amounts payable by the Borrowers under this Section 2.11 with respect to
past payments shall be due within ten (10) days following receipt by the
Borrowers of such certificate from the Lenders; any such amounts payable with
respect to future payments shall be due within ten (10) days after demand with
such future payments. With respect to each deduction or withholding for or on
account of any Taxes, the Borrowers shall promptly furnish to the Lenders such
certificates, receipts and other documents as may be required (in the reasonable
judgment of the Lenders) to establish any tax credit to which the Lenders may be
entitled.
ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING DATE
A. Closing Conditions. The obligation of each of the Banks
hereunder is subject to the following conditions precedent, each of which shall
be satisfied prior to April 15, 1997 (unless each of the Banks, in their sole
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and absolute discretion, shall agree otherwise). The occurrence of the
Closing Date is subject to and contingent upon Agent Bank having received, in
each case in form and substance reasonably satisfactory to Banks, or in the case
of an occurrence, action or event, the occurrence of each of the following:
Section 3.01. Credit Agreement.
Executed counterparts of this Credit Agreement in sufficient duplicate
originals for each of the Banks.
Section 3.02. The Note and Guaranty.
a. The Note duly executed by the Borrowers in favor of Agent Bank.
b. The Guaranty duly executed by the Guarantor in favor of Agent
Bank.
Section 3.03. Security Documentation.
The Security Documentation set forth below, duly executed by Borrowers or
other party thereto, consisting of the following:
a. Deed of Trust;
b. Financing Statements;
c. Assignment of Spaceleases, Contracts, Rents and Revenues; and
d. Assignment of Permits, Licenses and Contracts.
Section 3.04. Other Loan Documents.
The following Loan Documents duly executed by Borrowers and each other
applicable party thereto consisting of the following:
a. Environmental Certificate; and
b. Payment Subordination Agreement (for each Subordinated Debt
incurred as of the Closing Date).
Section 3.05. Articles of Incorporation, Bylaws, Corporate Resolution,
Certificate of Good Standing and Closing Certificate.
Agent Bank shall have received from each of the Borrowers: (i) a
Certificate of Good Standing issued by the Secretaries of State of the State of
Colorado with respect to CCCC and of the State of Delaware with respect to
WMCKAC, WMCKVC and Guarantor (together with a Certificate of Good Standing as a
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foreign corporation issued by the Colorado Secretary of State with respect
to WMCKAC and WMCKVC) and each dated within thirty (30) calendar days of the
Closing Date and telephonically confirmed as of the Closing Date, (ii) a copy of
the respective articles of incorporation and by-laws certified as of the Closing
Date to be true, correct and complete by a duly Authorized Officer of each of
the Borrowers and Guarantor, respectively, (iii) an original Certificate of
Corporate Resolution and Certificate of Incumbency executed by the Secretary of
each of the Borrowers and Guarantor and attested to by its respective President,
Vice President, or Treasurer authorizing each such Borrower and Guarantor to
enter into all documents and agreements to be executed by it pursuant to this
Credit Agreement and further authorizing and empowering the officer or officers
who will execute such documents and agreements with the authority and power to
execute such documents and agreements on behalf of each respective corporation,
(iv) designation by corporate resolution and an original certificate
("Authorized Officer Certificate"), substantially in the form of the Authorized
Officer Certificate marked "Exhibit D", affixed hereto and by this reference
incorporated herein and made a part hereof, of the officers of Borrowers who are
authorized to give Notices of Borrowing, Compliance Certificates and all other
notices, requests, reports, consents, certifications and authorizations on
behalf of the Borrowers (each individually an "Authorized Officer" and
collectively the "Authorized Officers") and (v) an original closing certificate
("Closing Certificate"), substantially in the form of the Closing Certificate
marked "Exhibit E", affixed hereto and by this reference incorporated herein and
made a part hereof, duly executed by an Authorized Officer of Borrowers.
Section 3.06. Opinion of Counsel.
The opinion of counsel to the Borrowers and Guarantor, dated as of the
Closing Date and addressed to the Agent Bank and each of the Banks, together
with their respective successors and assigns, substantially in the form of the
legal opinion marked "Exhibit G", affixed hereto and by this reference
incorporated herein and made a part hereof.
Section 3.07. Title Insurance Policy.
The Title Insurance Policy (or proforma commitment for the issuance
thereof) together with such endorsements and re-insurance requirements as set
forth in the Depository Closing Instructions.
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Section 3.08. Survey.
If required by the Title Company as a condition for the issuance of the
Title Policy, current ALTA survey for the Real Property subject to exceptions
approved by Agent Bank prior to the Closing Date, which must (i) be certified to
Agent Bank and the Title Company, (ii) show the Real Property to be free of
encroachments, overlaps, and other survey defects, (iii) show the courses and
distances of the boundary lines for the Real Property, (iv) show that all
existing or to be constructed improvements are located within said boundary
lines, and (v) show the location of all above and below ground easements,
improvements, appurtenances, utilities, rights-of-way, water rights, if any, and
ingress and egress, by reference to book and page numbers and/or filed map
reference. On or before the Closing Date, Borrowers shall comply with all other
survey requirements of Title Company for the issuance of the Title Insurance
Policy.
Section 3.09. Payment of Taxes.
Evidence satisfactory to Agent Bank that all past and current real and
personal property taxes and assessments which are presently due and payable
applicable to the Real Property have been paid in full.
Section 3.10. Insurance.
Copies of the declaration pages of each of the insurance policies certified
to be true and correct by an Authorized Officer of the Borrowers, together with
original binders evidencing Borrowers as named insured, and original
certificates of insurance, loss payable and mortgagee endorsements naming Agent
Bank as mortgagee, loss payee and additional insured, as required by the
applicable insurance provisions set forth in Section 5.09 of this Credit
Agreement.
Section 3.11. Payment of Upfront Fees.
Payment by Borrowers of the balance of the Upfront Fee as provided in
Section 2.07(a) hereinabove.
Section 3.12. Reimbursement for Expenses and Fees.
Reimbursement by Borrowers for all reasonable fees and out-of-pocket
expenses incurred by Agent Bank in connection with the Credit Facility,
including, but not limited to, escrow charges, title insurance premiums,
environmental examinations, recording fees, appraisal fees, reasonable
attorney's fees of Xxxxxxxxx & Xxxxxx and Colorado counsel retained by them,
insurance consultant fees, and all other like fees and expenses remaining unpaid
as of the Closing Date to the extent then due and payable on the Closing Date,
provided that the amount then invoiced shall not thereafter preclude Borrowers'
obligation to pay such costs and expenses relating to the closing of the Credit
Facility following the Closing Date or to reimburse Agent Bank for the payment
thereof.
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Section 3.13. Schedule of Spaceleases and Equipment Leases and Contracts.
A Schedule of Spaceleases (Schedule 4.16) and Equipment Leases and
Contracts (Schedule 4.17) in each instance setting forth the name of the other
party thereto, a brief description of each spacelease, equipment lease and
contract and the commencement and ending date thereof, to the extent known to
Borrowers as of the Closing Date.
Section 3.14. Phase I Environmental Site Assessments.
A Phase I Environmental Site Assessment or Assessments of the Real Property
prepared in conformance with the scope and limitations of ASTM Standard
Designation E1527- 93 and approved by Agent Bank. Any recommended action shall
have been completed by Borrowers.
Section 3.15 Leases.
a. A true and correct copy of the Golden Horseshoe Lease and of all
amendments and modifications thereto.
b. A true and correct copy of the Parking Lot Lease and of all
amendments and modifications thereto.
Section 3.16. Payment in Full of Existing Real Estate Debt and Existing
Equipment Debt.
a. Payment in full of all Existing Real Estate Debt and the full and
complete release and reconveyance of all Existing Real Estate
Security Documents.
b. Payment in full of all Existing Equipment Debt and the full and
complete release and termination of all Existing Equipment
Security Documents.
Section 3.17. Schedule of all Significant Litigation.
A Schedule of Significant Litigation (Schedule 3.17), in each instance
setting forth the names of the other parties thereto, a brief description of
such litigation, whether or not such litigation is covered by insurance and, if
so, whether the defense thereof and liability therefor has been accepted by the
applicable insurance company indicating whether such acceptance of such defenses
with or without a reservation of rights, the commencement date of such
litigation and the amount sought to be recovered by the adverse parties thereto
or the amount which is otherwise in controversy.
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Section 3.18. Acquisition of Title.
As of the Closing Date, CCCC shall have acquired fee title to the Legends
Property and WMCKAC shall have acquired fee title to the Diamond Lil's Property,
in each instance subject only to Permitted Encumbrances.
Section 3.19. Financial Statements.
For Fiscal Year 1996, audited consolidated financial statements of
Guarantor including consolidating schedules which present the balance sheet and
statement of operations of the Borrower Consolidation.
Section 3.20. No Injunction or Other Litigation.
No law or regulation shall prohibit, and no order, judgment or decree of
any Governmental Authority shall, and no litigation shall be pending or
threatened which in the reasonable judgment of the Agent Bank would or would
reasonably be expected to, enjoin, prohibit, limit or restrain the execution and
delivery of this Credit Agreement or the performance by the Borrowers of any
other obligations in respect thereof.
Section 3.21. Additional Documents and Statements.
Such additional documents, affidavits, certificates and opinions as Lenders
may reasonably require to insure compliance with this Credit Agreement. The
statements set forth in Section 3.23 shall be true and correct.
B. Conditions Precedent to all Borrowings.
The obligation of each Lender and Agent Bank to make any Borrowing
requested to be made on any Funding Date is subject to the occurrence of each of
the following conditions precedent as of such Funding Date:
Section 3.22. Notice of Borrowing.
With respect to any Borrowing, the Agent Bank shall have received in
accordance with Section 2.03 on or before such Funding Date an original and duly
executed Notice of Borrowing or facsimile copy thereof, to be promptly followed
by an original.
Section 3.23. Certain Statements.
On the Closing Date and as of the Funding Date the following statements
shall be true and correct:
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a. The representations and warranties with respect to the Borrowers
contained in Article IV hereof (other than representations and warranties which
expressly speak only as of a different date which shall be true and correct as
of such date) are true and correct on and as of the Funding Date and as of the
Closing Date in all material respects as though made on and as of that date,
except to the extent that such representations and warranties are not true and
correct as a result of a change which is permitted by this Credit Agreement or
by any other Loan Document, or which is otherwise consented to by Requisite
Lenders;
b. The representations and certifications contained in the Environmental
Certificate are true and correct in all material respects (other than
representations and warranties which expressly speak only as of a different date
which shall be true and correct as of such date);
c. Since the date of the most recent financial statements referred to in
Section 5.08, no Material Adverse Change shall have occurred; and
d. No event has occurred or as a result of any Borrowings contemplated
hereby would occur and is continuing, or would result from the making thereof,
which constitutes a Default or Event of Default hereunder.
Section 3.24. Gaming Permits.
The Borrowers Consolidation shall have all Gaming Permits material to or
required for the conduct of its gaming businesses and the conduct of games of
chance at the Casino Facilities and such Gaming Permits shall not then be
suspended, enjoined or prohibited (for any length of time) by any Gaming
Authority or any other Governmental Authority.
C. Conditions Precedent to Disbursement of Parking Lot Purchase Price.
In addition to the requirements set forth in Article II B, the obligation
of Lenders and Agent Bank to advance a Borrowing to finance the cost of
acquisition of the Parking Lot Property as permitted under Section 2.02(b)(ii)
is subject to Agent Bank having received, in each case in form and substance
reasonably satisfactory to Agent Bank and Requisite Lenders each of the
following:
Section 3.25. Legal Description and Deed of Trust.
A complete legal description of the Parking Lot Property shall be prepared
and delivered to Agent Bank together with a title commitment showing all
exceptions to title thereto. WMCKVC shall execute and deliver to Agent Bank a
deed of trust and security agreement with assignment of rents encumbering the
Parking Lot Property in substantially the same form as the Deed of Trust.
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Section 3.26. Environmental Site Assessment.
a. A Phase I Environmental Site Assessment of the Parking Lot Property,
prepared in conformance with the scope and limitations of ASTM Standard
Designation E1527-93 and approved by Agent Bank. Any recommended action shall
have been completed.
b. Borrowers shall confirm in writing that the representations contained in
Sections 2.1 and 2.2 of the Environmental Certificate are true and correct in
all respects as to the Parking Lot Property.
Section 3.27. Title Policy or Endorsement.
Borrowers shall cause, at their expense, concurrently with the funding of
the Borrowing to finance the cost of acquisition of the Parking Lot Property,
the Title Insurance Company to issue a title insurance policy or endorsement to
the Title Insurance Policy in favor of Agent Bank insuring the deed of trust
encumbering the Parking Lot Property as a first priority lien, subject only to
Permitted Encumbrances.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce Banks to enter into this Credit Agreement, Borrowers and
Guarantor make the following representations and warranties:
Section 4.01. Organization; Power and Authorization.
WMCKAC, WMCKVC and Guarantor are each a corporation duly organized and
validly existing under the laws of the State of Delaware. CCCC is a corporation
duly organized and validly existing under the laws of the State of Colorado.
Each Borrower and Guarantor (i) has all requisite corporate power, authority and
legal right to execute and deliver each document, agreement or certificate to
which it is a party or by which it is bound in connection with the Credit
Facility, to consummate the transactions and perform its obligations hereunder
and thereunder, and to own its properties and assets and to carry on and conduct
its business as presently conducted or proposed to be conducted, and (ii) has
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taken all necessary corporate action to authorize the execution, delivery
and performance of this Credit Agreement and the other Loan Documents to which
it is a party or by which it is bound and to consummate the transactions
contemplated hereunder and thereunder.
Section 4.02. Authority; Compliance with other Agreements and Instruments
and Government Regulations.
The execution, delivery and performance by Borrowers and Guarantor, as
applicable, of the Loan Documents and the execution of the Loan Documents have
been duly authorized by all necessary corporate action and do not:
a. require any consent or approval not heretofore obtained of any
member, director, stockholder, security holder or creditor of
such Party;
b. violate or conflict with any provision of such Party's articles
of incorporation or bylaws, Has applicable;
c. violate any requirement of Law, including any Gaming Law,
applicable to such Party;
d. constitute a "transfer of an interest" or an "obligation
incurred" that is avoidable by a trustee under Section 548 of the
Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer"
within the meanings of the Uniform Fraudulent Conveyances Act or
Uniform Fraudulent Transfer Act, as enacted in any applicable
jurisdiction; or
e. result in a breach of, or would, with the giving of notice or the
lapse of time or both, constitute a breach of or default under,
or cause or permit the acceleration of any obligation owed under,
any indenture or loan or credit agreement or any other
Contractual Obligation to which such Party is a party or by which
such Party or any of its assets are bound or affected.
Section 4.03. Litigation.
Except as disclosed on the Schedule of Significant Litigation delivered in
connection with Section 3.17, to the best knowledge of Borrowers and Guarantor,
after due inquiry and investigation, there is no action, suit, proceeding,
inquiry, hearing or investigation pending or threatened, in any court of law or
in equity, or before any Governmental Authority, which could reasonably be
expected to (a) result in any Material Adverse Change in any Casino Facility or
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in its business, financial condition, properties or operations, or (b)
result in any Material Adverse Effect. To the best knowledge of Borrowers, after
due inquiry and investigation, no Borrower is in violation of or default with
respect to any order, writ, injunction, decree or demand of any such court or
Governmental Authority.
Section 4.04. Agreements Legal, Binding, Valid and Enforceable.
This Credit Agreement, the Note, the Security Documentation and all other
Loan Documents, when executed and delivered by Borrowers in connection with the
Credit Facility and the Guaranty when executed and delivered by Guarantor will
constitute legal, valid and binding obligations of Borrowers and Guarantor,
respectively, enforceable against Borrowers and Guarantor, as applicable, in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
relating to or affecting the enforcement of creditors' rights and the exercise
of judicial discretion in accordance with general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
Section 4.05. Information and Financial Data Accurate; Financial
Statements; No Adverse Change.
All information and financial and other data previously furnished in
writing by Borrowers and/or Guarantor in connection with the Credit Facility was
true, correct and complete in all material respects as of the date furnished
(unless subsequently corrected prior to the date hereof), and there has been no
Material Adverse Change with respect thereto to the date of this Credit
Agreement since the dates thereof. No information has been omitted which would
make the information previously furnished in such financial statements to Banks
misleading or incorrect in any material respect to the date of this Credit
Agreement. Any and all financial statements heretofore furnished to Banks by
Borrowers and/or Guarantor: (i) present fairly the financial position of
Borrowers and/or Guarantor, as the case may be, as at their respective dates and
the results of operations and changes in cash flows for the periods to which
they apply, and (ii) have been prepared, except as noted therein, in conformity
with GAAP applied on a consistent basis throughout the periods involved. Since
the date of the financial statements referred to in this Section 4.05, there has
been no Material Adverse Change in the financial condition, business or
operations of the Borrowers and/or Guarantor.
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Section 4.06. Governmental Approvals.
All consents, approvals, orders or authorizations of, or registrations,
declarations, notices or filings with any Governmental Authority and any other
Person, which may be required in connection with the valid execution and
delivery of this Credit Agreement and the other Loan Documents by Borrowers and
Guarantor, as applicable, and the carrying-out or performance of any of the
transactions required or contemplated hereunder, or thereunder, by Borrowers,
have been obtained or accomplished and are in full force and effect. All
consents, approvals, orders or authorizations of, or registrations,
declarations, notices or filings with any Governmental Authority and any other
Person, the failure of which could reasonably be expected to have a Material
Adverse Effect, which may be required by Borrowers in connection with the use
and operation of the Casino Facilities have been obtained or accomplished and
are in full force and effect.
Section 4.07. Payment of Taxes.
Borrowers have
duly filed or caused to be filed all federal, state and local tax reports
and returns which are required to be filed by them and have paid or made
provisions for the payment of, all material taxes, assessments, fees and other
governmental charges which have or may have become due pursuant to said returns
or otherwise pursuant to any assessment received by Borrowers except such taxes,
assessments, fees or other governmental charges, if any, as are being contested
in good faith by any Borrower by appropriate proceedings and for which such
Borrower has maintained adequate reserves for the payment thereof in accordance
with GAAP.
Section 4.08. Title to Properties. Borrowers
shall have good and marketable title to the Legends Property, Diamond Lil's
Property and Xxxxxx'x Property as of the Closing Date and at all times during
the term of the Credit Facility. Borrowers shall have a leasehold interest in
and to the Golden Horseshoe Property pursuant to the Golden Horseshoe Lease.
Borrowers and Guarantor have good and marketable title to: (a) all of their
respective properties and assets reflected in the most recent financial
statements referred to in Section 4.05 hereof as owned by them (except those
properties and assets disposed of since the date of said financial statements in
the ordinary course of business or those properties and assets which are no
longer used or useful in the conduct of its businesses), including, but not
limited to, Borrowers' interest in patents, trademarks, tradenames,
servicemarks, and licenses relating to or pertaining to the Casino Facilities,
and (b) all properties and assets acquired by them subsequent to the date of the
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most recent financial statements referred to in Section 4.05 hereof. All
such properties and assets are not subject to any liens, encumbrances or
restrictions except Permitted Encumbrances. All roads, easements and rights of
way necessary for the full utilization of the Real Property have been completed
and/or obtained.
Section 4.09. No Untrue Statements.
All statements, representations and warranties made by Borrowers and
Guarantor, in this Credit Agreement, any other Loan Document and any other
agreement, document, certificate or instrument previously furnished or to be
furnished by Borrowers and/or Guarantor to Banks pursuant to the provisions of
this Credit Agreement, (i) are and shall be true, correct and complete in all
material respects, at the time they were made, (ii) do not and shall not contain
(at the time they were made) any untrue statement of a material fact, and (iii)
do not and shall not omit to state (at the time they were made) a material fact
necessary in order to make the information contained herein or therein not
misleading or incomplete. Borrowers and Guarantor understand that all such
statements, representations and warranties shall be deemed to have been relied
upon by Banks as a material inducement to establish the Credit Facility.
Section 4.10. Brokerage Commissions.
No person is entitled to receive any brokerage commission, finder's fee or
similar fee or payment in connection with the extensions of credit contemplated
by this Credit Agreement as a result of any agreement entered into by Borrowers.
No brokerage or other fee, commission or compensation is to be paid by Banks
with respect to the extensions of credit contemplated hereby as a result of any
agreement entered into by Borrowers, and Borrowers agree to indemnify Banks
against any such claims for brokerage fees or commissions and to pay all
expenses including, without limitation, reasonable attorney's fees incurred by
Banks in connection with the defense of any action or proceeding brought to
collect any such brokerage fees or commissions.
Section 4.11. No Defaults.
Borrowers are not in violation of or in default with respect to any
applicable Laws which materially and adversely affect the business or financial
condition of the Casino Facilities. Without limiting the generality of the
foregoing, Borrowers are not in violation or default (nor is there any waiver in
effect which, if not in effect, would result in a violation or default) in any
material and adverse respect under any indenture, evidence of indebtedness, loan
or financing agreement or other agreement or instrument of whatever nature to
which they, or any of them, are a party or by which they, or any of them, are
bound, which in any case could reasonably be expected to have a Material Adverse
Effect.
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Section 4.12. Employee Retirement Income Security Act of 1974.
No Reportable Event has occurred and is continuing with respect to any
Pension Plan under ERISA, that gives rise to liabilities that materially
adversely affect the financial condition or operations of Borrowers.
Section 4.13. Subsidiaries.
As of the Closing Date, Borrowers do not have any Subsidiaries which are
not members of the Borrower Consolidation.
Section 4.14. Utility Services.
All utility services necessary for the Casino Facilities including, without
limitation, electrical, water, gas and sewage services and facilities are
presently in service and fully operational at the Casino Facilities.
Section 4.15. Policies of Insurance.
Each of the copies of the policies, declaration pages, original binders and
certificates of insurance evidencing the Policies of Insurance as required under
Section 5.09 with respect to the Casino Facilities delivered to Agent Bank by
Borrowers (i) is a true, correct and complete copy of the respective original
thereof as in effect on the date hereof or thereof, without amendments or
modifications of any of said documents or instruments not included in such
copies, and (ii) has not been terminated and is in full force and effect.
Borrowers are not in default in the observance or performance of its obligations
under said documents and instruments, and Borrowers have all things required to
be done as of the date of this Credit Agreement to keep unimpaired their rights
thereunder.
Section 4.16. Spaceleases.
A schedule of all executed Spaceleases pertaining to the Casino Facilities,
or any portion thereof, in existence as of the Closing Date hereof, is set forth
on Schedule 4.16 attached hereto.
Section 4.17. Equipment Leases and Contracts.
A schedule of all executed Equipment Leases and Contracts pertaining to the
Casino Facilities or any portion thereof, in existence on the date hereof, is
set forth on Schedule 4.17 attached hereto.
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Section 4.18. Gaming Permits and Approvals.
As of the Closing Date, all Gaming Permits required to be held by Borrowers
necessary for the operation of gaming activities at the Casino Facilities will
be current and in good standing.
Section 4.19. Environmental Certificate.
The representations and certifications contained in the Environmental
Certificate are true and correct in all material respects.
Section 4.20. Compliance with Statutes, etc.
To the best of their knowledge, Borrowers are in compliance in all material
respects with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, domestic or
foreign, in respect of the conduct of their business and the ownership of their
property.
Section 4.21. Investment Company Act.
No Borrower is an "investment company" nor a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.22. Public Utility Holding Company Act.
No Borrower is a "holding company," nor a "subsidiary company" of a
"holding company," nor an "affiliate" of a "holding company" nor of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 4.23. Labor Relations.
There is no strike or work stoppage in existence, or to the best knowledge
of Borrowers threatened, involving any Borrower or the Casino Facilities.
Section 4.24. Trademarks, Patents, Licenses, Franchises, Formulas and
Copyrights.
Borrowers own all the patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or has a valid license or
sublicense of rights with respect to the foregoing, and has obtained assignments
of all leases and other rights of whatever nature, necessary for the present
conduct of their business at the Casino Facilities, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, could reasonably be expected to result in a Material Adverse Effect on the
business, operations, property, assets or condition (financial or otherwise) of
Borrowers taken as a whole.
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Section 4.25. Contingent Liabilities.
As of the Closing Date, Borrowers have incurred no material Contingent
Liabilities (any Contingent Liability in excess of One Million Dollars
($1,000,000.00) being deemed material) other than those described on Schedule
4.25.
ARTICLE V
GENERAL COVENANTS OF BORROWERS AND GUARANTOR
To induce the Banks to enter into this Credit Agreement and establish the
Credit Facility, Borrowers and Guarantor covenant to Banks as follows:
A. Affirmative Covenants.
Section 5.01. FF&E.
Borrowers shall furnish, fixture and equip the Casino Facilities with FF&E
they reasonably deem appropriate for the operation of the Casino Facilities. All
FF&E that is purchased and installed in the Casino Facilities shall be purchased
free and clear of any liens, encumbrances or claims, other than Permitted
Encumbrances. If Borrowers should sell, transfer, convey or otherwise dispose of
any FF&E and not replace such FF&E with purchased items of equivalent value and
utility or replace said FF&E with leased FF&E of equivalent value and utility,
within the permissible leasing and purchase agreement limitation set forth
herein, to the extent such non-replaced FF&E exceeds a cumulative aggregate
value of One Hundred Fifty Thousand Dollars ($150,000.00) during the term of the
Credit Facility, Borrowers shall be required to immediately, permanently reduce
the Maximum Permitted Balance of the Credit Facility by the amount of the
Capital Proceeds of the FF&E so disposed of in excess of such One Hundred Fifty
Thousand Dollars ($150,000.00), subject, however, to the right of Agent Bank to
verify to its reasonable satisfaction the amount of said Capital Proceeds; in
the event Agent Bank and Borrowers do not agree as to the value of the FF&E
disposed of and the amount of the Capital Proceeds, then Borrowers, at their
sole cost and expense, shall obtain a written appraisal of the FF&E disposed of,
in excess of One Hundred Fifty Thousand Dollars ($150,000.00) as provided
hereinabove, from an appraiser reasonably satisfactory to Agent Bank, setting
forth said values and amounts, and Lenders agree to accept the results of said
appraisal. The Maximum Permitted Balance shall immediately be reduced without
duplication by the amount of such appraisal.
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Section 5.02. Permits; Licenses and Legal Requirements.
Borrowers shall comply in all material respects with and keep in full force
and effect, as and when required, all Gaming Permits and all material permits,
licenses and approvals obtained from any Governmental Authorities which are
required for the operation and use of the Casino Facilities. Borrowers shall
comply in all material respects with all applicable material existing and future
laws, rules, regulations, orders, ordinances and requirements of all
Governmental Authorities, and with all recorded restrictions affecting the
Casino Facilities. All material contracts and agreements relating to the
operation of the Casino Facilities shall be held in the name of a Borrower.
Section 5.03. Compliance with Payment Subordination Agreement.
Until Credit Facility Termination, Borrowers and Guarantor shall fully
perform and comply with all covenants, terms and conditions imposed or assumed
by Borrowers and Guarantor under the Payment Subordination Agreement executed in
connection with the Subordinated Debt.
Section 5.04. Protection Against Lien Claims.
Borrowers shall give written notice to Agent Bank on or before ten (10)
days of any Borrower's actual knowledge thereof, of any lien claim filed against
any Borrower or any portion of the Real Property. Borrowers shall promptly pay
and discharge or cause to be paid and discharged all claims and liens for labor
done and materials and services supplied and furnished in connection with the
Casino Facilities in accordance with this Section 5.04. If any mechanic's lien
or materialman's lien shall be recorded, filed or suffered to exist against any
portion of the Real Property or any interest therein by reason of work, labor,
services or materials supplied, furnished or claimed to have been supplied and
furnished to the Casino Facilities upon Borrowers' receipt of written notice
from Agent Bank demanding the release and discharge of such lien, said lien or
claim shall be paid, released and discharged of record within sixty (60) days
following its receipt of such notice.
Section 5.05. No Change in Character of Business.
Until Credit Facility Termination Borrowers shall not effect a material
change in the nature and character of their business at the Casino Facilities as
presently contemplated and disclosed to Banks.
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Section 5.06. Preservation and Maintenance of Properties and Assets.
Until Credit Facility Termination, (a) Borrowers shall operate, maintain
and preserve all rights, privileges, franchises, licenses, Gaming Permits and
other properties and assets necessary to conduct their businesses and the Casino
Facilities, the absence of which would have a Material Adverse Effect, in
accordance in all material respects with all applicable governmental laws,
ordinances, approvals, rules and regulations and requirements, including, but
not limited to, zoning, sanitary, pollution, building, environmental and safety
laws and ordinances, rules and regulations promulgated thereunder, and (b)
Borrowers shall not consolidate with, remove, demolish, materially alter,
discontinue the use of, sell, transfer, assign, hypothecate or otherwise dispose
of to any Person (other than to another member of the Borrower Consolidation),
any part of their properties and assets necessary for the continuance of their
business, as presently conducted and as presently contemplated, other than in
the normal course of business or as otherwise permitted pursuant to this Credit
Agreement. Furthermore, in the event any Borrower, Guarantor or any Affiliate
and/or Subsidiary thereof, shall acquire any other real property or rights to
the use of real property which is used in a material manner in connection with
the Casino Facilities, or any of them, Borrowers shall concurrently with the
acquisition of such real property or the rights to the use of such real
property, execute or cause the execution of such documents as may be necessary
to add such real property or rights to the use of real property as Collateral
under the Credit Facility. Borrowers shall not remove, demolish, materially
alter, discontinue the use of, sell, transfer, assign, hypothecate or otherwise
dispose of to any Person, any part of their properties and assets necessary for
the continuance of their businesses, as presently conducted, other than in the
normal course of Borrowers' business and as provided in Sections 5.01 and 5.07.
Section 5.07. Repair of Properties and Assets.
Until Credit Facility Termination, Borrowers shall, at their own cost and
expense, (a) maintain, preserve and keep in a manner consistent with gaming
casino operating practices generally applicable to casino operations operating
in the Cripple Creek, Colorado area, their assets and properties, including, but
not limited to, the Collateral and all FF&E owned or leased by Borrowers in good
and substantial repair, working order and condition, ordinary wear and tear
excepted, (b) from time to time, make or cause to be made, all repairs,
replacements, renewals, improvements and betterments to the Casino Facilities
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that Borrowers deem reasonably necessary, and (c) from time to time, make
such substitutions, additions, modifications and improvements that Borrowers
deem reasonably necessary. All alterations, replacements, renewals, or additions
made pursuant to this Section 5.07 shall become and constitute a part of said
assets and property and subject, inter alia, to the provisions of Section 5.01
and subject to the lien of the Security Documentation.
Section 5.08. Financial Statements; Reports; Certificates and Books and
Records.
Until Credit Facility Termination, the Borrower Consolidation and Guarantor
shall, unless the Agent Bank (with the written approval of the Requisite
Lenders) otherwise consents, at Borrowers' Consolidation and Guarantor's sole
expense, deliver to the Agent Bank and each of the Lenders a full and complete
copy of each of the following:
a. As soon as practicable, and in any event within forty-five (45)
days after the end of each Fiscal Quarter following the Closing
Date, the balance sheet of the Borrower Consolidation as at the
end of such Fiscal Quarter and an income statement, statement of
operations and a statement of cash flows for the Fiscal Quarter
under review and reflecting year-to-date performance of the
Borrower Consolidation and, a comparison of the financial
performance of the Borrower Consolidation to the prior Fiscal
Year's operations. Such financial statements shall be certified
by an Authorized Officer of the Borrower Consolidation as fairly
presenting the financial condition, results of operations and
cash flows of the Borrower Consolidation in accordance with GAAP,
except as noted therein, as at such date and for such periods,
subject only to normal year-end accruals and audit adjustments;
b. As soon as practicable, and in any event within one hundred
twenty (120) days after the end of each Fiscal Year, the balance
sheet of the Borrower Consolidation as at the end of such Fiscal
year and an income statement, statement of operations and
statement of cash flows for such Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance
with GAAP, except as noted therein, and such balance sheet and
statements shall be accompanied by a report of independent public
accountants of recognized standing selected by the Borrower
Consolidation and reasonably satisfactory to the Requisite
Lenders (it being understood that any "Big 6" accounting firm
shall be automatically deemed satisfactory to the Requisite
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Lenders), which report shall be prepared in accordance with
generally accepted auditing standards as at such date, and shall
not be subject to any qualifications or exceptions as to the
scope of the audit nor to any other qualification or exception
determined by the Requisite Lenders in their good faith business
judgment to be adverse to the interests of the Banks.
Concurrently with the submission of such annual audited financial
statements, such independent certified public accountants shall
additionally furnish to Agent Bank a Compliance Certificate,
certifying that such independent certified public accountant has
no actual knowledge of any Default or Event of Default.
c. As soon as practicable, and in any event within forty-five (45)
days after the commencement of each Fiscal Year, a budget for the
Borrowers, including for such Fiscal Year, projected statement of
operations and projected statement of cash flow, all in
reasonable detail;
d. As soon as reasonably practical after each Fiscal Year End, but
in no event later than forty-five (45) days following each Fiscal
Year End, the Borrower Consolidation shall submit to Agent Bank,
with sufficient copies for distribution to each of the Lenders,
an internally prepared annual capital expenditure budget with
respect to the Casino Facilities for the next ensuing Fiscal
Year, which shall be reconciled as of the end of each Fiscal
Quarter with actual Capital Expenditures made to the date of such
Fiscal Quarter end. Each such quarterly reconciliation shall be
made as soon as practicable, and in any event within forty-five
(45) days after the end of each Fiscal Quarter.
e. On or before forty-five (45) days after the end of each Fiscal
Quarter following the Closing Date, and continuing until Credit
Facility Termination, the Borrower Consolidation shall, at the
Borrower Consolidation's sole expense, deliver to the Agent Bank
for distribution by it to the Banks, a Compliance Certificate in
each instance duly and accurately prepared and signed by an
Authorized Officer;
f. Until Bank Facility Termination, the Borrower Consolidation shall
keep and maintain complete and accurate books and records.
Borrowers shall permit Banks and any authorized representatives
of Banks to have reasonable access to and to inspect, examine and
make copies of the books and records, any and all accounts, data
and other documents of Borrowers at all reasonable times upon the
giving of reasonable notice of such intent. In addition: (i) in
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the event of the occurrence of any Default or Event of Default,
or (ii) in the event any Material Adverse Change occurs,
Borrowers shall promptly, and in any event within three (3) days
after actual knowledge thereof, notify Agent Bank in writing of
such occurrence; and
g. Promptly after the same are available, copies of each annual
report, quarterly report, proxy or financial statement or other
report or communication sent to the stockholders of Guarantor,
and copies of all annual, regular, periodic and special reports
and registration statements which Guarantor may file or be
required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, and not otherwise required to be delivered to the
Banks pursuant to other provisions of this Section 5.08;
h. Until Credit Facility Termination, Borrowers and Guarantor shall
furnish to Agent Bank, with sufficient copies for distribution to
each of the Banks any financial information or other information
bearing on the financial status of the Borrowers which is
reasonably requested by Agent Bank or Requisite Lenders.
Section 5.09. Insurance.
Borrowers shall obtain, or cause to be obtained, and shall maintain or
cause to be maintained with respect to the Casino Facilities, at all times
throughout the period commencing on the Closing Date and continuing until Credit
Facility Termination at their own cost and expense, and shall deposit with Agent
Bank on or before the Closing Date:
a. Property Insurance. The Borrower Consolidation shall maintain an
"All Risk" (special causes of loss or equivalent), including
flood and earthquake perils with a sublimit of no less than One
Million Dollars ($1,000,000.00), covering the building and
improvements, and any other permanent structures for one hundred
percent (100%) of the replacement cost. Upon the request of Agent
Bank, replacement cost for insurance purposes will be established
by an independent appraiser mutually selected by Borrowers and
Agent Bank. The policy will include Agreed Amount (waiving
co-insurance) and replacement cost valuation and building
ordinance endorsements. The policy will include a standard
mortgagee clause (ISO form or equivalent) and provide that all
losses in excess of One Hundred Thousand Dollars ($100,000.00) be
adjusted with the Agent Bank. The Borrowers waive any and all
rights of subrogation against Banks.
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b. Personal Property (including machinery, equipment, furniture,
fixtures, stock). The Borrower Consolidation shall maintain "All
Risk" property coverage for all personal property owned, leased
or for which any Borrower is legally liable. Such policy shall
include a Lenders Loss Payable endorsement in favor of Agent
Bank.
The policy providing real property and personal property
coverages, as specified in 5.09(a) and (b) hereinabove, may
include a deductible of no more than Ten Thousand Dollars
($10,000.00) for any single occurrence. Flood and earthquake
deductibles can be no more than Twenty- Five Thousand Dollars
($25,000.00), if a separate deductible applies.
c. Business Interruption/Extra Expense. The Borrower Consolidation
shall maintain combined Business Interruption/Extra Expense
coverage with a limit representing no less than one hundred
percent (100%) of the projected annual net profit plus continuing
expenses (including debt service) for the Casino Facilities. Such
coverage shall also include extensions for off premises power
losses and an extended period of indemnity of ninety (90) days
endorsement. These coverages may have a deductible of no greater
than twenty-four (24) hours, or Twenty-Five Thousand Dollars
($25,000.00), if a separate deductible applies.
d. Boiler and Machinery. The Borrower Consolidation shall maintain a
Boiler and Machinery policy for the Casino Facilities written on
a Comprehensive Form with a combined direct and indirect limit of
no less than Two Million Five Hundred Thousand Dollars
($2,500,000.00). The policy shall include extensions for Agreed
Amount (waiving co-insurance) and Replacement Cost Valuation. The
policy may contain deductibles of no greater than Ten Thousand
Dollars ($10,000.00) direct and twenty-four (24) hours indirect.
e. Crime Insurance. The Borrower Consolidation shall obtain a
comprehensive crime policy, including the following coverages:
(i) employee dishonesty - Five Hundred Thousand Dollars
($500,000.00);
(ii) money and securities (inside) - One Hundred Thousand Dollars
($100,000.00);
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(iii)money and securities (outside) - One Hundred Thousand
Dollars ($100,000.00);
(iv) depositor's forgery - One Hundred Thousand Dollars
($100,000.00);
(v) computer fraud - One Hundred Thousand Dollars ($100,000.00).
The policy must be amended so that money is defined to
include "tokens and chips" (as defined by the Gaming Laws).
The policy may contain deductibles of no greater than Fifty
Thousand Dollars ($50,000.00) for employee dishonesty and
Ten Thousand Dollars ($10,000.00) for all other agreements
listed above.
f. Commercial General Liability (1996 form or equivalent). The
Borrower Consolidation shall maintain a Commercial General
Liability policy with a One Million Dollar ($1,000,000.00)
combined single limit for bodily injury and property damage,
including Products Liability, Contractual Liability, and all
standard policy form extensions. The policy must provide a
Two Million Dollar ($2,000,000.00) general aggregate (per
location, if multi-location risk) and be written on an
"occurrence form". The policy will include extensions for
Liquor legal, Employee Benefits legal, Innkeepers legal and
Safe Deposit legal. If the general liability policy contains
a self-insured retention, it shall be no greater than Five
Thousand Dollars ($5,000.00) per occurrence, with an
aggregate retention of no more than One Hundred Thousand
Dollars ($100,000.00), including expenses.
The policy shall be endorsed to include Agent Bank as an
additional insured on behalf of the Banks. Definition of
additional insured shall include all officers, directors,
employees, agents and representatives of the additional
insured. The coverage for additional insured shall apply on
a primary basis irrespective of any other insurance whether
collectible or not.
g. Automobile. Borrowers shall maintain a comprehensive
Automobile Liability Insurance Policy written under coverage
"symbol 1", providing a One Million Dollar ($1,000,000.00)
combined single limit for bodily injury and property damage
covering all owned, non-owned and hired vehicles of the
Borrower Consolidation. If the policy contains a self
insured retention it shall be no greater than Five Thousand
Dollars ($5,000.00) per occurrence, with an aggregate
retention of no more than One Hundred Thousand Dollars
($100,000.00), including expenses.
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h. Workers Compensation and Employers Liability Insurance. The
Borrower Consolidation shall maintain a standard workers
compensation policy in compliance with all applicable laws
of the State of Colorado, including employers liability
coverage subject to a limit of no less than One Million
Dollars ($1,000,000.00) each employee, One Million Dollars
($1,000,000.00) each accident, One Million Dollars
($1,000,000.00) policy limit. The policy shall include
endorsements for Voluntary Compensation Coverage and Stop
Gap Liability. If the Borrower Consolidation has elected to
self-insure Workers Compensation coverage in the State of
Colorado, the Agent Bank must be furnished with a copy of
the certificate from the state permitting self-insurance and
evidence of a Stop Loss Excess Workers Compensation policy
with a specific retention of no greater than One Hundred
Fifty Thousand Dollars ($150,000.00).
i. If the Borrower Consolidation's general liability and
automobile policies include a self-insured retention, it is
agreed and fully understood that the Borrower Consolidation
is solely responsible for payment of all amounts due within
said self-insured retentions. Any Indemnification/Hold
Harmless provision is extended to cover all liabilities
associated with said self-insured retentions.
j. Umbrella Liability. An Umbrella Liability policy shall be
purchased with a limit of not less than Fifteen Million
Dollars ($15,000,000.00) providing excess coverage over all
limits and coverages indicated in paragraphs (f), (g) and
(h) above. The limits can be obtained by a combination of
Primary and Excess Umbrella policies, provided that all
layers follow form with the underlying policies indicated in
(f), (g) and (h) and are written on an "occurrence" form.
This policy shall be endorsed to include the Agent Bank as
an additional insured on behalf of the Banks, in the same
manner set forth in Section 5.09(f) hereinabove.
k. All policies indicated above shall be written with insurance
companies licensed and admitted to do business in the State
of Colorado and shall be rated no lower than "A XII" in the
most recent addition of A.M. Best and "AA" in the most
recent edition of Standard & Poor's, or such other carrier
reasonably acceptable to Agent Bank. All policies discussed
above shall be endorsed to provide that in the event of a
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cancellation, non-renewal or material modification, Agent
Bank shall receive thirty (30) days prior written notice
thereof. The Borrower Consolidation shall furnish Agent Bank
with Certificates of Insurance executed by an authorized
agent of the applicable insurance company or companies
evidencing compliance with all insurance provisions set
forth in Section 5.09 (a) through (j) on an annual basis.
Certificates of Insurance executed by an authorized agent of
each carrier providing insurance evidencing continuation of
all coverages set forth in Section 5.09 (a) through (j) will
be provided on or before the Closing Date and annually on or
before ten (10) days prior to the expiration of each policy.
All certificates and other notices related to the insurance
program shall be delivered to Agent Bank concurrently with
the delivery of such certificates or notices to such carrier
or to Borrowers.
l. Any other insurance reasonably requested by Agent Bank in
such amounts and covering such risks as may be reasonably
required and customary in the hotel/casino industry in the
general location of the Casino Facilities.
Section 5.10. Taxes.
Throughout the term of the Credit Facility, Borrowers shall prepare and
timely file or cause to be prepared and timely filed all federal, state and
local tax returns required to be filed by it, and Borrowers shall pay and
discharge prior to delinquency all material taxes, assessments and other
governmental charges or levies imposed upon them, or in respect of any of their
respective properties and assets except such taxes, assessments and other
governmental charges or levies, if any, as are being contested in good faith by
Borrowers in the manner which is set forth for such contests by Section 4.07
herein.
Section 5.11. Permitted Encumbrances Only.
Until Credit Facility Termination, Borrowers shall not create, incur,
assume or suffer to exist any mortgage, deed of trust, pledge, lien, security
interest, encumbrance, attachment, levy, distraint, or other judicial process or
burdens of any kind and nature except the Permitted Encumbrances on or with
respect to the Collateral, except (a) with respect to matters described in
Section 5.04 and 5.10, such items as are being discharged, released and/or
contested, as the case may be, in the manner described therein, written notice
of all tax lien contests and all other items involving amounts in excess of
$250,000.00 in the aggregate having been given to Agent Bank, and (b) with
respect to any other items involving amounts in excess of $250,000.00 in the
aggregate, if any, as are being contested in good faith by appropriate
proceedings and for which Borrowers have given written notice thereof to Agent
Bank and have maintained adequate reserves for the payment thereof.
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Section 5.12. Advances.
Until Credit Facility Termination, if Borrowers should fail (i) to perform
or observe, or (ii) to cause to be performed or observed, any covenant or
obligation of such Borrowers under this Credit Agreement or any of the other
Loan Documents, the failure of which could reasonably be expected to have a
Material Adverse Effect, then Agent Bank, upon the giving of reasonable notice,
may (but shall be under no obligation to) take such steps as are necessary to
remedy any such non-performance or non- observance and provide for payment
thereof. All amounts advanced by Agent Bank or Lenders pursuant to this Section
5.12 shall become an additional obligation of Borrowers to Lenders secured by
the Security Documentation and other Loan Documents, shall reduce the amount of
Available Borrowings and shall become due and payable by Borrowers on the next
interest payment date, together with interest thereon at a rate per annum equal
to the Default Rate (such interest to be calculated from the date of such
advancement to the date of payment thereof by Borrowers).
Section 5.13. Further Assurances.
Borrowers,Guarantor, Agent Bank and each of the Banks will, at the expense
of the Borrowers, do, execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, such amendments or supplements hereto or
to any of the Loan Documents and such further documents, instruments and
transfers as any such party may reasonably require for the curing of any defect
in the execution or acknowledgement hereof or in any of the Loan Documents, or
in the description of the Real Property or other Collateral or for the proper
evidencing of giving notice of each lien or security interest securing repayment
of the Credit Facility. Further, upon the execution and delivery of the Deed of
Trust and each of the Loan Documents and thereafter, from time to time,
Borrowers shall cause the Deed of Trust and each of the Loan Documents and each
amendment and supplement thereto to be filed, registered and recorded and to be
refiled, re-registered and re-recorded in such manner and in such places as may
be reasonably required by the Requisite Lenders or Agent Bank, in order to
publish notice of and fully protect the liens of the Security Documentation and
to protect or continue to perfect the security interests created by the Security
Documentation in the Collateral and to perform or cause to be performed from
time to time any other actions required by law and execute or cause to be
executed any and all instruments of further assurance that may be necessary for
such publication, perfection, continuation and protection.
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Section 5.14. Indemnification.
Borrowers and Guarantor agree to and do hereby jointly and severally
indemnify, protect, defend and save harmless Agent Bank and each of the Banks
and their respective directors, trustees, officers, employees, agents, attorneys
and shareholders (individually an "Indemnified Party" and collectively the
"Indemnified Parties") from and against any and all losses, damages, expenses or
liabilities of any kind or nature from any investigations, suits, claims,
demands or other proceedings, including reasonable counsel fees incurred in
investigating or defending such claim, suffered by any of them and caused by,
relating to, arising out of, resulting from, or in any way connected with this
Credit Agreement, with any other Loan Document or with the transactions
contemplated herein and thereby; provided, however, Borrowers and Guarantor
shall not be obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage, expense or liability
was caused by (a) the gross negligence or willful or intentional misconduct of
such Indemnified Party, or (b) the breach of this Credit Agreement or any other
Loan Document by such Indemnified Party or the breach of any laws, rules or
regulations by an Indemnified Party (other than those breaches of laws arising
from any Borrower's or Guarantor's default). In case any action shall be brought
against any Indemnified Party based upon any of the above and in respect to
which indemnity may be sought against Borrowers and/or Guarantor, Agent Bank
shall promptly notify Borrowers and Guarantor in writing, and Borrowers and
Guarantor shall assume the defense thereof, including the employment of counsel
selected by Borrowers and Guarantor and reasonably satisfactory to Agent Bank,
the payment of all costs and expenses and the right to negotiate and consent to
settlement. Upon reasonable determination made by an Indemnified Party that such
counsel would have a conflict representing such Indemnified Party and Borrowers
and Guarantor, the applicable Indemnified Party shall have the right to employ,
at the expense of Borrowers, separate counsel in any such action and to
participate in the defense thereof. Borrowers and Guarantor shall not be liable
for any settlement of any such action effected without its consent, but if
settled with Borrowers' or Guarantor's consent, or if there be a final judgment
for the claimant in any such action, Borrowers and Guarantor agree to indemnify,
defend and save harmless such Indemnified Parties from and against any loss or
- 60 -
liability by reason of such settlement or judgment. In the event that any Person
is adjudged by a court of competent jurisdiction not to have been entitled to
indemnification under this Section 5.14, it shall repay all amounts with respect
to which it has been so adjudged. If and to the extent that the indemnification
provisions contained in this Section 5.14 are unenforceable for any reason, the
Borrowers and Guarantor hereby agree to make the maximum contribution to the
payment and satisfaction of such obligations that is permissible under
applicable law. The provisions of this Section 5.14 shall survive the
termination of this Credit Agreement, the repayment of the Credit Facility and
the assignment or subparticipation of all or any portion of the Syndication
Interest held by any Lender pursuant to Section 10.10.
Section 5.15. Compliance With Other Loan Documents.
Borrowers and Guarantor shall comply in all material respects with each and
every term, condition and agreement contained in the Loan Documents.
Section 5.16. Suits or Actions Affecting Borrowers.
Until Credit Facility Termination, Borrowers shall promptly advise Agent
Bank in writing within ten (10) days of any Borrower's knowledge of (a) any
Significant Litigation claims, litigation, proceedings or disputes (whether or
not purportedly on behalf of Borrowers) against, or to the actual knowledge of
Borrowers, threatened or affecting any Borrower which could reasonably be
expected to result in an award of monetary damages in excess of One Million
Dollars ($1,000,000.00), (b) any material labor controversy resulting in or
threatening to result in a strike against the Casino Facilities, or (c) any
proposal by any Governmental Authority to acquire any of the material assets or
business of Borrowers.
Section 5.17. Maintenance of Designated Deposit Account.
Until Credit Facility Termination, Borrowers shall maintain the Designated
Deposit Account to facilitate the operational process of the Credit Facility.
Section 5.18. Notice to Gaming Authorities Board.
Borrowers shall make all required reports and disclosures to the Gaming
Authorities on a timely basis.
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Section 5.19. Tradenames, Trademarks and Servicemarks.
No Borrower shall assign or in any other manner alienate its interest in
any material tradenames, trademarks or servicemarks relating or pertaining to
the Casino Facilities during the term of the Credit Facility, except pursuant to
the Security Documentation. No Borrower shall change its name without first
giving sixty (60) days prior written notice to Agent Bank, together with
evidence reasonably satisfactory to the Agent Bank that all notices and other
documents required to be delivered, recorded or filed in order to perfect and
protect the security interest granted by such Borrower to the Banks in such
trademarks, tradenames and servicemarks and the other Collateral have been so
delivered, recorded and/or filed.
Section 5.20. Notice of Hazardous Materials.
Within ten (10) days after any Borrower obtaining actual knowledge thereof,
Borrowers shall immediately advise Agent Bank and each of the Lenders in writing
and deliver a copy of (a) any and all enforcement, clean-up, removal or other
governmental or regulatory actions expected to cost in excess of Two Hundred
Fifty Thousand Dollars ($250,000.00) instituted, completed or threatened
pursuant to any applicable federal, state or local laws, ordinances or
regulations relating to any Hazardous Materials (as defined in the Environmental
Certificate) affecting the Collateral ("Hazardous Materials Laws"); (b) all
claims made or threatened by any third party against any Borrower or the Casino
Facilities in excess of Two Hundred Fifty Thousand Dollars ($250,000.00)
relating to damage, contribution, cost recovery compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in clauses (a) and
(b) above are hereinafter referred to as "Hazardous Materials Claims"); and (c)
the discovery of any occurrence or condition on any real property adjoining or
in the vicinity of the Casino Facilities that could cause the Real Property or
any part thereof to be classified as a "border-zone property" under the
provisions of, or to be otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Casino Facilities under, any Hazardous
Materials Laws.
Section 5.21. Compliance with Statutes, etc.
Borrowers will comply with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all Governmental Authorities,
domestic or foreign, in respect of the conduct of their business and the
ownership of the property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls) the
non-compliance with which would have a Material Adverse Effect.
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Section 5.22. Compliance with Access Laws.
a. Borrowers agree that Borrowers and the Casino Facilities shall at all
times comply in all material respects with the applicable requirements
of the Americans with Disabilities Act of 1990; the Fair Housing
Amendments Act of 1988; and other federal, state or local laws or
ordinances related to disabled access; or any statute, rule,
regulation, ordinance, order of Governmental Authorities, or order or
decree of any court adopted or enacted with respect thereto, as now
existing or hereafter amended or adopted (collectively, the "Access
Laws"). At any time, Agent Bank may require a certificate of
compliance with the Access Laws and indemnification agreement in a
form reasonably acceptable to Agent Bank. Agent Bank may also require
a certificate of compliance with the Access Laws from an architect,
engineer, or other third party acceptable to Agent Bank.
b. Notwithstanding any provisions set forth herein or in any other
document, Borrowers shall not alter or permit any tenant or other
person to alter the Casino Facilities in any manner which would
increase any Borrower's responsibilities for compliance with the
Access Laws without the prior written approval of Agent Bank. In
connection with such approval, Agent Bank may require a certificate of
compliance with the Access Laws from an architect, engineer or other
person acceptable to Agent Bank.
c. Borrowers agree to give prompt written notice to Agent Bank of the
receipt by any Borrower of any claims of violation of any of the
Access Laws and of the commencement of any proceedings or
investigations which relate to compliance with any of the Access Laws.
d. Borrowers and Guarantor shall and do hereby jointly and severally
indemnify, defend and hold harmless Indemnified Parties from and
against any and all claims, demands, damages, costs, expenses, losses,
liabilities, penalties, fines and other proceedings including, without
limitation, reasonable attorneys' fees and expenses arising directly
or indirectly from or out of or in any way connected with any failure
of the Casino Facilities to comply with any of the Access Laws. The
obligations and liabilities of Borrowers and Guarantor under this
section shall survive Facility Termination, any satisfaction,
assignment, judicial or nonjudicial foreclosure proceeding, or
delivery of a deed in lieu of foreclosure.
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Section 5.23. Compliance with Golden Horseshoe Lease and Estoppel
Certificate.
Until Credit Facility Termination, Borrowers shall fully perform and comply
with or cause to be performed and complied with all of the respective material
covenants, material terms and material conditions imposed or assumed by them, or
any of them, as lessee under the Golden Horseshoe Lease. None of the Borrowers
shall amend, modify or terminate, or enter into any agreement to amend, modify
or terminate the Golden Horseshoe Lease without the prior written consent of
Agent Bank. Following the Closing Date, Borrowers shall and do hereby agree to
use their best efforts to cause all necessary parties to execute and deliver to
Agent Bank the Golden Horseshoe Lease Estoppel Certificate in a form and content
reasonably acceptable to Agent Bank and its attorneys, as promptly as reasonably
possible, but in any event on or before ninety (90) days following the Closing
Date.
Section 5.24. Updated Appraisal.
In the event of the occurrence of a Default or Event of Default or if at
any time an appraisal of the Casino Facilities prepared in compliance with
FIRREA is determined to be necessary by Agent Bank or Requisite Lenders,
Borrowers agree to pay all reasonable fees, costs and expenses incurred by Agent
Bank in connection with the engagement and preparation of such appraisal.
Borrowers shall not be obligated to pay for more than one of such appraisals.
Section 5.25. Payment Restriction on BGP Note.
Until Credit Facility Termination, Borrowers shall not: (a) pay all or any
portion of the outstanding principal owing under the BGP Note, (ii) pay any
interest, other charges or fees under the BGP Note prior to the date upon which
such interest, charges or fees become due and payable, or (iii) upon the
occurrence of a Default or Event of Default and so long as such Default or Event
of Default remains continuing, pay any interest, other charges or fees owing
under the BGP Note.
ARTICLE VI
FINANCIAL COVENANTS
Until Credit Facility Termination, Borrowers and Guarantor agree, as set
forth below, to comply or cause compliance with the following Financial
Covenants.
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Section 6.01. Minimum Annual EBITDA.
Commencing with the Fiscal Quarter beginning April 1, 1997 and continuing
as of each Fiscal Quarter end until Credit Facility Termination, the Borrower
Consolidation shall maintain a minimum EBITDA of at least Five Million Dollars
($5,000,000.00) to be calculated for each such Fiscal Quarter together with the
most recently ended three (3) preceding Fiscal Quarters on a rolling four (4)
Fiscal Quarter basis.
Section 6.02. Capital Expenditures.
During the period beginning April 1, 1997, through December 31, 1997,
Borrowers shall make, or cause to be made, Capital Expenditures to the Casino
Facilities in a minimum amount of One Hundred Eighty-Seven Thousand Five Hundred
Dollars ($187,500.00). Commencing with the Fiscal Year beginning on January 1,
1998, Borrowers shall make, or cause to be made, annual Capital Expenditures to
the Casino Facilities in a minimum amount of Two Hundred Fifty Thousand Dollars
($250,000.00) during each Fiscal Year. In no event shall the Borrower
Consolidation expend in excess of Five Hundred Thousand Dollars ($500,000.00) on
Non-Financed Capital Expenditures during any Fiscal Year.
Section 6.03. TFCC Ratio.
Commencing with the Fiscal Quarter beginning July 1, 1997, the Borrower
Consolidation shall maintain a minimum TFCC Ratio of no less than 1.20 to 1.00
as of each Fiscal Quarter end to be calculated on a cumulative basis with
respect to each Fiscal Quarter and the most recently ended three (3) preceding
Fiscal Quarters on a rolling four (4) Fiscal Quarter basis.
Section 6.04. Restriction on Transfer of Ownership.
Until Credit Facility Termination, all of the issued and outstanding
capital stock of WMCKVC shall be owned by Guarantor and all of the issued and
outstanding capital stock of CCCC and WMCKAC shall be owned by WMCKVC.
Section 6.05. Total Indebtedness.
The Borrower Consolidation shall not owe or incur any Indebtedness, except
as specifically permitted hereinbelow:
a. Funded Outstandings under the Credit Facility;
b. Secured Interest Rate Xxxxxx up to the aggregate amount of Six Million
Dollars ($6,000,000.00);
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c Secured purchase money Indebtedness and Capital Lease Liabilities
relating to FF&E to be used in connection with the Casino Facilities
up to the maximum aggregate principal amount of Two Hundred Fifty
Thousand Dollars ($250,000.00) at any time outstanding;
d. Indebtedness to Guarantor or any Subsidiary or Affiliate of Guarantor
which is not a member of the Borrower Consolidation shall not exceed
One Hundred Thousand Dollars ($100,000.00) in the aggregate at any
time;
e. The Indebtedness evidenced by the BGP Note; and
f. The Subordinated Debt as of the Closing Date and any additional
unsecured subordinated debt, the rate of interest and repayment terms
of which are first approved in writing by Agent Bank and for which a
payment subordination agreement, in the form of Exhibit I hereto, has
been first executed in favor of Agent Bank on behalf of Lenders.
Section 6.06. Contingent Liabilities.
Borrowers shall not incur any Contingent Liabilities, other than Secured
Interest Rate Xxxxxx up to the limits provided in Section 6.05(b).
Section 6.07. Other Liens.
Borrowers shall not grant, consent to or otherwise agree to liens,
encumbrances or negative pledges with respect to any of its respective assets or
any of the Collateral, other than (a) liens existing as of the Closing Date
acceptable to the Agent Bank and disclosed in writing prior to the Closing Date,
(b) liens permitted under the terms of this Credit Agreement as Permitted
Encumbrances, and (c) liens created or evidenced by the Security Documentation.
Section 6.08. Consolidation, Merger, Sale of Assets, etc.
No Borrower will wind up, liquidate or dissolve its affairs or enter into
any transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of (or agree to do any of the forgoing at any future time) all or any
material part of its property or assets, except that (i) the Borrowers may make
sales of inventory in the ordinary course of business and (ii) the Borrowers
may, in the ordinary course of business, sell or otherwise dispose of FF&E which
is uneconomic or obsolete subject to the provisions set forth in Section 5.01.
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Section 6.09. Investment Restrictions.
Other than Investments held by Borrowers as of the date of this Credit
Agreement or as otherwise permitted herein or approved in writing by Agent Bank,
the Borrower Consolidation shall not make any Investments (whether by way of
loan, stock purchase, capital contribution, or otherwise) other than the
following:
a. Direct obligations of the United States Government;
b. Prime commercial paper (AA rated or better);
c. Certificates of Deposit or Repurchase Agreement issued by a commercial
bank having capital surplus in excess of One Hundred Million Dollars
($100,000,000.00);
d. Money market or other funds of nationally recognized institutions
investing solely in obligations described in (a), (b) and (c) above;
e. Loans and advances to Guarantor or to any Subsidiary or Affiliate of
Guarantor which is not a member of the Borrower Consolidation shall
not exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate
at any one time; and
f. Investments and Capital Expenditures in the Casino Facilities.
Section 6.10. Ratio of Guarantor Funded Debt to Borrower Consolidation
EBITDA.
The ratio of Guarantor's consolidated Funded Debt to the Borrower
Consolidation's EBITDA as of the end of each Fiscal Quarter shall be less than
or equal to 4.00 to 1.00.
Section 6.11. ERISA. Borrowers shall not:
a. At any time, permit any Pension Plan which is maintained by Borrowers
or to which Borrowers are obligated to contribute on behalf of their
employees, in such case if to do so would constitute a Material
Adverse Effect, to:
(i) engage in any non-exempt "prohibited transaction", as such term
is defined in Section 4975 of the Code;
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(ii) incur any material "accumulated funding deficiency", as that term
is defined in Section 302 of ERISA; or
(iii)suffer a termination event to occur which may reasonably be
expected to result in liability of Borrowers to the Pension Plan
or to the Pension Benefit Guaranty Corporation or the imposition
of a lien on the Collateral pursuant to Section 4068 of ERISA.
b. Fail, upon Borrowers becoming aware thereof, promptly to notify the
Agent Bank of the occurrence of any "reportable event" (as defined in
Section 4043 of ERISA) or of any non-exempt "prohibited transaction"
(as defined in Section 4975 of the Code) with respect to any Pension
Plan which is maintained by Borrowers or to which Borrowers are
obligated to contribute on behalf of their employees or any trust
created thereunder.
c. At any time, permit any Pension Plan which is maintained by Borrowers
or to which Borrowers are obligated to contribute on behalf of its
employees to fail to comply with ERISA or other applicable laws in any
respect that would result in a Material Adverse Effect.
Section 6.12. Margin Regulations.
No part of the proceeds of the Credit Facility will be used by Borrowers to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock. Neither the making of such loans,
nor the use of the proceeds of such loans will violate or be inconsistent with
the provisions of Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System.
Section 6.13. No Subsidiaries.
Other than WMCKVC's ownership of CCCC and WMCKAC, Borrowers shall not own
or create any Subsidiaries without the prior written consent of Agent Bank.
Section 6.14. Transactions with Affiliates.
Transactions by Borrowers with Affiliates of Borrowers or Guarantor other
than arms length transactions for fair market value shall be and are hereby
prohibited.
Section 6.15. Change in Accounting Principles.
Except as otherwise provided herein, if any changes in accounting
principles from those used in the preparation of the most recent financial
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statements delivered to Agent Bank pursuant to the terms hereof are hereinafter
required or permitted by the rules, regulations, pronouncements and opinions of
the Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrowers with the agreement of their independent
certified public accountants and such changes result in a change in the method
of calculation of any of the financial covenants, standards or terms found
herein, the parties hereto agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such changes with the desired result
that the criteria for evaluating the financial condition of Borrowers shall be
the same after such changes as if such changes had not been made; provided,
however, that no change in GAAP that would affect the method of calculation of
any of the financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to
Agent Bank, Requisite Lenders and Borrowers, to so reflect such change in
accounting principles.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default.
Any of the following events and the passage of any applicable notice and
cure periods shall constitute an Event of Default hereunder:
a. Any representation or warranty made by Borrowers or Guarantor pursuant
to or in connection with this Credit Agreement, the Note, the
Environmental Certificate, or any other Loan Document or in any
report, certificate, financial statement or other writing furnished by
Borrowers or Guarantor in connection herewith, shall prove to be
false, incorrect or misleading in any materially adverse aspect as of
the date when made (unless cured within thirty (30) days of the date
when made if such representation or warranty is capable of being
cured);
b. Borrowers shall have defaulted in the payment of any interest on the
Note for a period of five (5) days from the date Agent Bank gives
written notice that such payment is due or shall have defaulted in the
payment of any principal on the Note for two (2) days after written
notice thereof is delivered to Borrowers by Agent Bank;
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c. Any of the Security Documentation or any provision thereof shall cease
to be in full force and effect in any material respect or shall cease
to give the Agent Bank in any material respect the liens, rights,
powers and privileges purported to be created thereby or the Borrowers
shall default in the due performance or observance of any term,
covenant or agreement on their part to be performed or observed
pursuant to the Security Documentation for a period of thirty (30)
days after written notice thereof is delivered to Borrowers by Agent
Bank or any Lender of such failure (or such shorter period following
such notice as may be specifically required in any Loan Document),
provided that with respect to default of any term, covenant or
agreement (other than a Financial Covenant) which cannot be cured
within such thirty (30) day period in the reasonable judgment of Agent
Bank, Borrowers shall have a period of ninety (90) days to cure such
default so long as Borrowers commence such cure within the thirty (30)
day period and diligently continues to cure such default;
d. Borrowers shall have defaulted in the payment of any late charge,
Non-usage Fees, expenses, indemnities or any other amount owing under
any Loan Document for a period of five (5) days after notice thereof
to Borrowers from Agent Bank;
e. Borrowers or Guarantor shall fail duly and punctually to perform or
comply in all material respects with any other term, covenant,
condition or promise contained in this Credit Agreement, the Note or
any other Loan Document and such failure shall continue for thirty
(30) days after written notice thereof is delivered to Borrowers and
Guarantor by Agent Bank or any Lender of such failure (or such shorter
period following such notice as may be required in any Loan Document),
provided that with respect to default of any term, covenant or
agreement (other than a Financial Covenant) which cannot be cured
within such thirty (30) day period in the reasonable judgment of Agent
Bank, Borrowers and Guarantor shall have a period of ninety (90) days
to cure such default so long as Borrowers and Guarantor commence such
cure within the thirty (30) day period and diligently continue to cure
such default;
f. Any Borrower or Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under the Bankruptcy Code or any
bankruptcy, insolvency or other similar law now or hereafter in effect
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or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official, for all or substantially all of
its property, or shall consent to any such relief or to the
appointment or taking possession by any such official in any
involuntary case or other proceeding against it;
g. An involuntary case or other proceeding shall be commenced against any
Borrower or Guarantor seeking liquidation, reorganization or other
relief with respect to itself or its debts under the Bankruptcy Code
or any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official, for all or substantially all of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of ninety (90) days;
h. Any Borrower or Guarantor makes an assignment of all or substantially
all of its assets for the benefit of its creditors or admits in
writing its inability to pay its debts generally as they become due;
i. Borrowers shall fail to pay when due in accordance with its terms and
provisions any other Indebtedness of such Borrowers which failure
would have a Material Adverse Effect and continues beyond the period
of grace, if any, therefor;
j. The occurrence of any event of default, beyond any applicable grace
period, or any termination event under the terms of any agreement with
any Lender in connection with a Secured Interest Rate Hedge relating
to the Credit Facility;
k. The occurrence of any Reportable Event as defined under the ERISA,
which Agent Bank determines reasonably and in good faith constitutes
proper grounds for the termination of any employee pension benefit
plan or pension plan of any Borrower covered by ERISA by the Pension
Benefit Guaranty Corporation or for the appointment by an appropriate
United States District Court of a trustee to administer any such plan,
which occurs and continues for thirty (30) days after written notice
of such determination shall have been given to Borrowers by Agent
Bank;
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l. Commencement against any Borrower, any time after the execution
of this Credit Agreement, of any litigation which is not stayed,
bonded, dismissed, terminated or disposed of to the satisfaction
of Requisite Lenders within ninety (90) days after its
commencement, and which (i) could materially adversely affect the
priority of the encumbrances and security interests granted Agent
Bank by the Deed of Trust in the Real Property, or (ii) results
in the issuance of a preliminary or permanent injunction which is
not dissolved or stayed pending appeal within sixty (60) days of
its issuance and which preliminary or permanent injunction
materially adversely affects Borrowers' right to use the Real
Property as the Casino Facilities;
m. The failure of any Borrower to hold all necessary Gaming Permits as of
the Closing Date. The loss or suspension, other than on account of
force majeure, of any Borrower's unrestricted Gaming Permits or the
failure of any Borrower to maintain gaming activities in the Casino
Facilities other than on account of force majeure for a period in
excess of thirty (30) consecutive days;
n. Any order, judgment or decree shall be entered against any Borrower
decreeing its involuntary dissolution or split up and such order shall
remain undischarged and unstayed for a period in excess of thirty (30)
days, or any Borrower shall otherwise dissolve or cease to exist; or
o. The occurrence of any default under the Guaranty or the revocation,
termination or repudiation of any of the Guarantor's promises,
obligations or covenants under the Guaranty.
Section 7.02. Default Remedies.
Upon the occurrence of any Event of Default, Agent Bank, upon the consent
or direction of Requisite Lenders, shall declare the unpaid balance of the
Credit Facility, together with the interest thereon, to be fully due and
payable, and, Agent Bank shall, upon the consent or direction of Requisite
Lenders, exercise any or all of the following remedies:
a. Terminate the obligation of Lenders to make any advances for
Borrowings and may declare all outstanding unpaid Indebtedness
hereunder and under the Note and other Loan Documents together with
all accrued interest thereon immediately due and payable without
presentation, demand, protest or notice of any kind. This remedy will
be deemed to have been automatically exercised on the occurrence of
any event set out in Sections 7.01(f), (g) or (h) with respect to any
Borrower or any Guarantor.
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b. The Banks and/or Agent Bank may exercise any and all remedies
available to Banks or Agent Bank under the Loan Documents.
c. The Banks and/or Agent Bank may exercise any other remedies available
to Banks or Agent Bank at law or in equity, including requesting the
appointment of a receiver to perform any acts required of Borrowers
under this Credit Agreement, and Borrowers hereby specifically consent
to any such request by Banks.
For the purpose of carrying out this section and exercising these rights,
powers and privileges, Borrowers hereby irrevocably constitute and appoint Agent
Bank as their true and lawful attorney-in-fact to execute, acknowledge and
deliver any instruments and do and perform any acts such as are referred to in
this paragraph in the name and on behalf of Borrowers. Agent Bank on behalf of
Lenders may exercise one or more of Lenders' remedies simultaneously and all its
remedies are nonexclusive and cumulative. Lenders shall not be required to
pursue or exhaust any Collateral or remedy before pursuing any other Collateral
or remedy. Lenders' failure to exercise any remedy for a particular default
shall not be deemed a waiver of (i) such remedy, nor their rights to exercise
any other remedy for that default, nor (ii) their right to exercise that remedy
for any subsequent default.
Section 7.03. Application of Proceeds.
All payments and proceeds received and all amounts held or realized from
the sale or other disposition of the Casino Facilities and other Collateral,
which are to be applied hereunder towards satisfaction of Borrowers' obligations
under this Credit Agreement, shall be applied in the manner set forth in
Colorado Revised Statutes or otherwise in the following order of priority:
a. First, to the payment of all reasonable fees, costs and expenses
(including reasonable attorney's fees and expenses) incurred by Agent
Bank and Banks, their agents or representatives in connection with the
realization upon any of the Collateral;
b. Next, to the payment in full of any other amounts due under this
Credit Agreement and any other Loan Documents (other than the Note);
c. Next, to the balance of interest remaining unpaid on the Note;
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d. Next, to the balance of principal remaining unpaid on the Note;
e. Next, the balance, if any, of such payments or proceeds to whomever
may be legally entitled thereto.
Section 7.04. Notices.
In order to entitle Agent Bank and/or Banks to exercise any remedy
available hereunder, it shall not be necessary for Agent Bank and/or Banks to
give any notice, other than such notice as may be required expressly herein.
Section 7.05. Agreement to Pay Attorney's Fees and Expenses.
Subject to the provisions of Section 10.14, upon the occurrence of an Event
of Default, as a result of which Agent Bank and/or Banks shall require and
employ attorneys or incur other expenses for the collection of payments due or
to become due or the enforcement or performance or observance of any obligation
or agreement on the part of Borrowers contained herein, Borrowers and Guarantor
shall, on demand, pay to Agent Bank and Banks the actual and reasonable fees of
such attorneys (including actual and reasonable allocated costs of in-house
legal counsel) and such other reasonable expenses so incurred by Agent Bank and
Banks.
Section 7.06. No Additional Waiver Implied by One Waiver.
In the event any agreement contained in this Credit Agreement should be
breached by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder.
Section 7.07. Licensing of Agent Bank and Lenders.
In the event of the occurrence of an Event of Default hereunder or under
any of the Loan Documents and it shall become necessary, or in the opinion of
Requisite Lenders advisable, for an agent, supervisor, receiver or other
representative of Agent Bank and Banks to become licensed under the provisions
of the Gaming Laws of the State of Colorado, or rules and regulations adopted
pursuant thereto, as a condition to receiving the benefit of any Collateral
encumbered by the Security Documentation or other Loan Documents for the benefit
of Lenders or otherwise to enforce their rights hereunder or thereunder,
Borrowers do hereby give their consent to the granting of such license or
licenses and agree to execute such further documents as may be required in
connection with the evidencing of such consent.
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Section 7.08. Exercise of Rights Subject to Applicable Law.
All rights, remedies and powers provided by this Article VII may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of the laws of any Governmental Authority and all of the
provisions of this Article VII are intended to be subject to all applicable
mandatory provisions of law that may be controlling and to be limited to the
extent necessary so that they will not render this Credit Agreement invalid,
unenforceable or not entitled to be recorded or filed under the provisions of
any applicable law.
Section 7.09. Discontinuance of Proceedings.
In case Agent Bank and/or Banks shall have proceeded to enforce any right,
power or remedy under this Credit Agreement, the Note, the Security
Documentation or any other Loan Document by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely to Banks, then and in every such case
Borrowers, Guarantor, Agent Bank and/or Banks shall be restored to their former
positions and rights hereunder with respect to the Collateral, and all rights,
remedies and powers of Agent Bank and Banks shall continue as if such
proceedings had not been taken, subject to any binding rule by the applicable
court or other tribunal in any such proceeding.
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. No Abatement of Payments.
If all or any part of the Collateral shall be materially damaged or
destroyed, or if title to or the temporary use of the whole or any part of any
of the Collateral shall be taken or condemned by a competent authority for any
public use or purpose, or by exercise of the power of eminent domain, there
shall be no abatement or reduction in the amounts payable by Borrowers hereunder
or under the Note, and Borrowers shall continue to be obligated to make such
payments.
Section 8.02. Distribution of Capital Proceeds Upon Occurrence of Fire,
Other Perils or Condemnation.
All monies received from "All Risk" including flood and earthquake
insurance policies covering any of the Collateral or from condemnation or
similar actions in regard to said Collateral, shall be paid directly to Agent
Bank. However, in the event the amount paid to Agent Bank is equal to or less
than Five Hundred Thousand Dollars ($500,000.00), such amount shall be paid
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directly to Borrowers unless a Default or Event of Default shall have occurred
and then be continuing. In the event the amount paid to Agent Bank is greater
than Five Hundred Thousand Dollars ($500,000.00), then, unless a Default or
Event of Default has occurred hereunder and is then continuing, the entire
amount so collected or so much thereof as may be required to repair or replace
the destroyed or condemned property, shall, subject to the condition set forth
below, be released to Borrowers for repair or replacement of the property
destroyed or condemned or to reimburse Borrowers for the costs of such repair or
replacement incurred prior to the date of such release. If a Default or Event of
Default has occurred hereunder and is then continuing such amount may, at the
option of Requisite Lenders, be applied to pay the outstanding balance of the
Credit Facility. In the event the amount so collected is applied to pay or
reduce the outstanding balance of the Credit Facility, the amount received by
Agent Bank shall be applied in the priority set forth in Section 7.03 and, if
such application is made when a Default or Event of Default has occurred and
remains continuing, then Borrowers shall not be entitled to any further
Borrowings. In the event Banks are required to release all or a portion of the
collected funds to Borrowers for such repair or replacement of the property
destroyed or condemned, such release of funds shall be made in accordance with
the following terms and conditions:
a. The repairs, replacements and rebuilding shall be made in accordance
with plans and specifications approved by Agent Bank and in accordance
with all applicable laws, ordinances, rules, regulations and
requirements of Governmental Authorities;
b. Borrowers shall provide Agent Bank with a detailed estimate of the
costs of such repairs or restora- tions;
c. Borrowers shall satisfy the Requisite Lenders that after the
reconstruction is completed, the value of the Casino Facilities, as
determined by the Requisite Lenders in their reasonable discretion,
will not be less than Seventeen Million Five Hundred Thousand Dollars
($17,500,000.00);
d. In the Agent Bank's sole reasonable opinion, any undisbursed portion
of the Available Borrowings contemplated hereunder, after deposit of
such proceeds, is sufficient to pay all costs of reconstruction of the
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Casino Facilities or other Collateral damaged, destroyed or condemned;
or if the undisbursed portion of such Credit Facility is not
sufficient, Borrowers shall provide evidence reasonably acceptable to
Agent Bank of the availability of additional funds sufficient to pay
such additional costs of reconstructing the Collateral;
e. Borrowers have delivered to the Agent Bank a construction contract for
the work of reconstruction in form and content, including insurance
requirements, acceptable to the Agent Bank with a contractor
acceptable to the Agent Bank;
f. The Requisite Lenders in their reasonable discretion have determined
that after the work of reconstruction is completed, the Casino
Facilities or Collateral damaged, destroyed or condemned will produce
income sufficient to pay all costs of operations and maintenance of
the applicable Collateral with a reasonable reserve for repairs, and
service all debts secured by the applicable Collateral;
g. No Default or Event of Default has occurred and is continuing
hereunder;
h. Borrowers have provided evidence reasonably acceptable to Agent Bank
of the availability of funds (taking into consideration the amount of
Borrowings available and the amount of proceeds, if any, of insurance
policies covering property damage and business interruption, loss or
rental income in connection with the Casino Facilities or Collateral
damaged, destroyed or condemned accruing and immediately forthcoming
to the Agent Bank) to be sufficient to service the Indebtedness
secured hereby during the period of reconstruction;
i. Before commencing any such work, Borrowers shall, at its own cost and
expense, furnish Agent Bank with appropriate endorsements, if needed,
to the "All Risk" insurance policy which Borrowers are then presently
maintaining, and course of construction insurance to cover all of the
risks during the course of such work;
j. Such work shall be commenced by Borrowers within one hundred twenty
(120) days after (i) settlement shall have been made with the
insurance companies or condemnation proceeds shall have been received,
and (ii) all the necessary governmental approvals shall have been
obtained, and such work shall be completed within a reasonable time,
free and clear of all liens and encumbrances, except Permitted
Encumbrances; and
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k. Disbursements of such insurance or condemnation proceeds shall be made
in the customary manner used by Agent Bank for the disbursement of
construction loans.
ARTICLE IX
AGENCY PROVISIONS
Section 9.01. Appointment.
a. Each Lender hereby (i) designates and appoints WFB as the Agent Bank
of such Lender under this Credit Agreement and the Loan Documents,
(ii) authorizes and directs Agent Bank to enter into the Loan
Documents other than this Credit Agreement for the benefit of Lenders,
and (iii) authorizes Agent Bank to take such action on its behalf
under the provisions of this Credit Agreement and the Loan Documents
and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto,
subject to the limitations referred to in Sections 9.10(a) and
9.10(b). Agent Bank agrees to act as such on the express conditions
contained in this Article IX.
b. The provisions of this Article IX are solely for the benefit of Agent
Bank and Lenders, and Borrowers and Guarantor shall not have any
rights to rely on or enforce any of the provisions hereof (other than
as expressly set forth in Sections 9.03, 9.09 and 10.10), provided,
however, that the foregoing shall in no way limit Borrowers'
obligations under this Article IX. In performing its functions and
duties under this Credit Agreement, Agent Bank shall act solely as
Agent Bank of Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or trust
with or for Borrowers, Guarantor or any other Person.
Section 9.02. Nature of Duties.
Agent Bank shall not have any duties or responsibilities except those
expressly set forth in this Credit Agreement or in the Loan Documents. The
duties of Agent Bank shall be administrative in nature. Subject to the
provisions of Sections 9.05 and 9.07, Agent Bank shall administer the Credit
Facility in the same manner as it administers its own loans. Promptly following
the effectiveness of this Credit Agreement, Agent Bank shall send to each Lender
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a duplicate executed original, to the extent the same are available in
sufficient numbers, of the Credit Agreement and a copy of each other
Loan Document in favor of Lenders and a copy of the filed or recorded
Security Documentation, with the originals of the latter to be held
and retained by Agent Bank for the benefit of all Lenders. Agent Bank
shall not have by reason of this Credit Agreement a fiduciary
relationship in respect of any Lender. Nothing in this Credit
Agreement or any of the Loan Documents, expressed or implied, is
intended or shall be construed to impose upon Agent Bank any
obligation in respect of this Credit Agreement or any of the Loan
Documents except as expressly set forth herein or therein. Each Lender
shall make its own independent investigation of the financial
condition and affairs of the Borrowers, Guarantor and the Collateral
in connection with the making and the continuance of the Credit
Facility hereunder and shall make its own appraisal of the
creditworthiness of the Borrowers, Guarantor and the Collateral, and,
except as specifically provided herein, Agent Bank shall not have any
duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the Closing Date or
at any time or times thereafter.
Section 9.03. Disbursement of Borrowings.
a. Not later than the next Banking Business Day following receipt of a
Notice of Borrowing, Agent Bank shall send a copy thereof by facsimile
to each other Lender and shall otherwise notify each Lender of the
proposed Borrowing and the Funding Date. Each Lender shall make
available to Agent Bank (or the funding bank or entity designated by
Agent Bank), the amount of such Lender's Pro Rata Share of such
Borrowing in immediately available funds not later than the times
designated in Section 9.03(b). Unless Agent Bank shall have been
notified by any Lender not later than the close of business (San
Francisco time) on the Banking Business Day immediately preceding the
Funding Date in respect of any Borrowing that such Lender does not
intend to make available to Agent Bank such Lender's Pro Rata Share of
such Borrowing, Agent Bank may assume that such Lender shall make such
amount available to Agent Bank. If any Lender does not notify Agent
Bank of its intention not to make available its Pro Rata Share of such
Borrowing as described above, but does not for any reason make
available to Agent Bank such Lender's Pro Rata Share of such
Borrowing, such Lender shall pay to Agent Bank forthwith on demand
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such amount, together with interest thereon at the Federal Funds Rate.
In any case where a Lender does not for any reason make available to
Agent Bank such Lender's Pro Rata Share of such Borrowing, Agent Bank,
in its sole discretion, may, but shall not be obligated to, fund to
Borrowers such Lender's Pro Rata Share of such Borrowing. If Agent
Bank funds to Borrowers such Lender's Pro Rata Share of such Borrowing
and if such Lender subsequently pays to Agent Bank such corresponding
amount, such amount so paid shall constitute such Lender's Pro Rata
Share of such Borrowing. Nothing in this Section 9.03(a) shall alter
the respective rights and obligations of the parties hereunder in
respect of a Defaulting Lender or a Non-Pro Rata Borrowing.
b. Requests by Agent Bank for funding by Lenders of Borrowings will be
made by telecopy. Each Lender shall make the amount of its Pro Rata
Share of such Borrowing available to Agent Bank in Dollars and in
immediately available funds, to such bank and account, in El Segundo,
California as Agent Bank may designate, not later than 9:00 A.M. (San
Francisco time) on the Funding Date designated in the Notice of
Borrowing with respect to such Borrowing, but in no event earlier than
two (2) Banking Business Days following Lender's receipt of the
applicable Notice of Borrowing.
c. Nothing in this Section 9.03 shall be deemed to relieve any Lender of
its obligation hereunder to make its Pro Rata Share of Borrowings on
any Funding Date, nor shall any Lender be responsible for the failure
of any other Lender to perform its obligations to advance its Pro Rata
Share of any Borrowing hereunder, and the Pro Rata Share of the
Aggregate Commitment of any Lender shall not be increased or decreased
as a result of the failure by any other Lender to perform its
obligation to advance its Pro Rata Share of any Borrowing.
Section 9.04. Distribution and Apportionment of Payments.
a. Subject to Section 9.04(b), payments actually received by Agent Bank
for the account of Lenders shall be paid to them promptly after
receipt thereof by Agent Bank, but in any event within one (1) Banking
Business Day, provided that Agent Bank shall pay to Lenders interest
thereon, at the Federal Funds Rate from the Banking Business Day
following receipt of such funds by Agent Bank until such funds are
paid in immediately available funds to Lenders. Subject to Section
9.04(b), all payments of principal and interest in respect of Funded
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Outstandings, all payments of the fees described in this Credit
Agreement, and all payments in respect of any other Obligations shall
be allocated among such other Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as
provided herein. Agent Bank shall promptly distribute, but in any
event within one (1) Banking Business Day, to each Lender at its
primary address set forth on the appropriate signature page hereof or
on the applicable Assignment and Assumption Agreement, or at such
other address as a Lender may request in writing, such funds as it may
be entitled to receive, provided that Agent Bank shall in any event
not be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Lender and may suspend
all payments and seek appropriate relief (including, without
limitation, instructions from Requisite Lenders or all Lenders, as
applicable, or an action in the nature of interpleader) in the event
of any doubt or dispute as to any apportionment or distribution
contemplated hereby. The order of priority herein is set forth solely
to determine the rights and priorities of Lenders as among themselves
and may at any time or from time to time be changed by Lenders as they
may elect, in writing in accordance with Section 10.01, without
necessity of notice to or consent of or approval by Borrowers or any
other Person. All payments or other sums received by Agent Bank for
the account of Lenders (including, without limitation, principal and
interest payments, the proceeds of any and all insurance maintained
with respect to any of the Collateral, and any and all condemnation
proceeds with respect to any of the Collateral) shall not constitute
property or assets of the Agent Bank and shall be held by Agent Bank,
solely in its capacity as administrative and collateral agent for
itself and the other Lenders, subject to the Loan Documents.
b. Notwithstanding any provision hereof to the contrary, until such time
as a Defaulting Lender has funded its Pro Rata Share of Borrowing
which was previously a Non Pro Rata Borrowing, or all other Lenders
have received payment in full (whether by repayment or prepayment) of
the principal due in respect of such Non Pro Rata Borrowing, all
principal sums owing to such Defaulting Lender hereunder shall be
subordinated in right of payment to the prior payment in full of all
principal in respect of all Non Pro Rata Borrowing in which the
Defaulting Lender has not funded its Pro Rata Share. This provision
governs only the relationship among Agent Bank, each Defaulting
Lender, and the other Lenders; nothing hereunder shall limit the
obligation of Borrowers to repay all Borrowings in accordance with the
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terms of this Credit Agreement. The provisions of this section shall
apply and be effective regardless of whether an Event of Default
occurs and is then continuing, and notwithstanding (i) any other
provision of this Credit Agreement to the contrary, (ii) any
instruction of Borrowers as to their desired application of payments
or (iii) the suspension of such Defaulting Lender's right to vote on
matters which are subject to the consent or approval of Requisite
Lenders or all Lenders. No Nonusage Fee shall accrue in favor of, or
be payable to, such Defaulting Lender from the date of any failure to
fund Borrowings or reimburse Agent Bank for any Liabilities and Costs
as herein provided until such failure has been cured, and Agent Bank
shall be entitled to (A) withhold or setoff, and to apply to the
payment of the defaulted amount and any related interest, any amounts
to be paid to such Defaulting Lender under this Credit Agreement, and
(B) bring an action or suit against such Defaulting Lender in a court
of competent jurisdiction to recover the defaulted amount and any
related interest. In addition, the Defaulting Lender shall indemnify,
defend and hold Agent Bank and each of the other Lenders harmless from
and against any and all Liabilities and Costs, plus interest thereon
at the Default Rate, which they may sustain or incur by reason of or
as a direct consequence of the Defaulting Lender's failure or refusal
to abide by its obligations under this Credit Agreement.
Section 9.05. Rights, Exculpation, Etc.
Neither Agent Bank, any Affiliate of Agent Bank, nor any of their
respective officers, directors, employees, agents, attorneys or consultants,
shall be liable to any Lender for any action taken or omitted by them hereunder
or under any of the Loan Documents, or in connection herewith or therewith,
except that Agent Bank shall be liable for its gross negligence or willful
misconduct. In the absence of gross negligence or willful misconduct, Agent Bank
shall not be liable for any apportionment or distribution of payments made by it
in good faith pursuant to Section 9.04, and if any such apportionment or
distribution is subsequently determined to have been made in error the sole
recourse of any Person to whom payment was due, but not made, shall be to
recover from the recipients of such payments any payment in excess of the amount
to which they are determined to have been entitled. Agent Bank shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, any of
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the Security Documentation or any of the other Loan Documents, or any of the
transactions contemplated hereby and thereby; or for the financial condition of
the Borrowers, Guarantor or any of their Affiliates. Agent Bank shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Credit Agreement or any of
the Loan Documents or the financial condition of the Borrowers, Guarantor or any
of their Affiliates, or the existence or possible existence of any Default or
Event of Default.
Section 9.06. Reliance.
Agent Bank shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents, telecopies or any telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Credit Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of legal counsel (including counsel for Borrowers),
independent public accountant and other experts selected by it.
Section 9.07. Indemnification.
To the extent that Agent Bank is not reimbursed and indemnified by
Borrowers or Guarantor, Lenders will reimburse, within ten (10) Banking Business
Days after notice from Agent Bank, and indemnify and defend Agent Bank for and
against any and all Liabilities and Costs which may be imposed on, incurred by,
or asserted against it in any way relating to or arising out of this Credit
Agreement, the Security Documentation or any of the other Loan Documents or any
action taken or omitted by Agent Bank or under this Credit Agreement, the
Security Documentation or any of the other Loan Documents, in proportion to each
Lender's Pro Rata Share; provided that no Lender shall be liable for any portion
of such Liabilities and Costs resulting from Agent Bank's gross negligence or
willful misconduct. The obligations of Lenders under this Section 9.07 shall
survive the payment in full of all Obligations and the termination of this
Credit Agreement. In the event that after payment and distribution of any amount
by Agent Bank to Lenders, any Lender or third party, including Borrowers or
Guarantor, any creditor of Borrowers or Guarantor or a trustee in bankruptcy,
recovers from Agent Bank any amount found to have been wrongfully paid to Agent
Bank or disbursed by Agent Bank to Lenders, then Lenders, in proportion to their
respective Pro Rata Shares, shall reimburse Agent Bank for all such amounts.
Notwithstanding the foregoing, Agent Bank shall not be obligated to advance
Liabilities and Costs and may require the deposit by each Lender of its Pro Rata
Share of any material Liabilities and Costs anticipated by Agent Bank before
they are incurred or made payable.
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Section 9.08. Agent Individually.
With respect to its Pro Rata Share of the Aggregate Commitment hereunder
and the Borrowings made by it, Agent Bank shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders", "Requisite Lenders" or any similar terms may include Agent Bank
in its individual capacity as a Lender or one of the Requisite Lenders, but
Requisite Lenders shall not include Agent Bank solely in its capacity as Agent
Bank and need not necessarily include Agent Bank in its capacity as a Lender.
Agent Bank and any Lender and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with any Borrower, Guarantor or any of its Affiliates as if it were not acting
as Agent Bank or Lender pursuant hereto.
Section 9.09. Successor Agent Bank; Resignation of Agent Bank; Removal of
Agent Bank.
a. Agent Bank shall automatically cease to be Agent Bank hereunder in the
event a petition in bankruptcy shall be filed by or against Agent Bank
or the Federal Deposit Insurance Corporation or any other Governmental
Authority shall assume control of Agent Bank or Agent Bank's interests
under the Credit Facility. Further, Lenders (other than Agent Bank)
may unanimously remove Agent Bank at any time upon the occurrence of
gross negligence or wilful misconduct by Agent Bank by giving at least
thirty (30) Banking Business Days' prior written notice to Agent Bank,
Borrowers and all other Lenders. Such resignation or removal shall
take effect upon the acceptance by a successor Agent Bank of
appointment pursuant to clause (b) or (c).
b. Upon any such notice of resignation by or removal of Agent Bank,
Requisite Lenders shall appoint a successor Agent Bank which
appointment shall be subject to Borrowers' consent (other than upon
the occurrence and during the continuance of any Event of Default),
which shall not be unreasonably withheld or delayed. Any successor
Agent Bank must be a bank (i) the senior debt obligations of which (or
such bank's parent's senior unsecured debt obligations) are rated not
less than Baa-2 by Xxxxx'x Investors Services, Inc. or a comparable
rating by a rating agency acceptable to Requisite Lenders and (ii)
which has total assets in excess of Ten Billion Dollars
($10,000,000,000.00).
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c. If a successor Agent Bank shall not have been so appointed within said
thirty (30) Banking Business Day period, the retiring or removed Agent
Bank, with the consent of Borrowers (other than upon the occurrence
and during the continuance of any Event of Default) (which may not be
unreasonably withheld or delayed), shall then appoint a successor
Agent Bank who shall meet the requirements described in subsection (b)
above and who shall serve as Agent Bank until such time, if any, as
Requisite Lenders, with the consent of Borrowers (other than upon the
occurrence and during the continuance of any Event of Default),
appoint a successor Agent Bank as provided above.
Section 9.10. Consent and Approvals.
a. Each consent, approval, amendment, modification or waiver specifically
enumerated in this Section 9.10(a) shall require the consent of
Requisite Lenders:
(i) Approval of Borrowings with less than full compliance with
requirements of Article IIIB (Section 2.06);
(ii) Approval of any amendment, modification or termination or
agreement to amend, modify or terminate the Subordinated
Debt (Section 5.03);
(iii)Consent to modification to financial reporting requirements
or production of additional financial or other information
(Section 5.08);
(iv) Approval of a change in the method of calculation of any
financial covenants, standards or terms as a result of a
change in accounting principle (Section 6.15);
(v) Direct Agent Bank to declare the unpaid balance of the
Credit Facility fully due and payable (Section 7.02);
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(vi) Direct the disposition of insurance proceeds or condemnation
awards under certain circumstances (Section 8.02);
(vii)Approval of appointment of successor Agent Bank (Section
9.09);
(viii) Approval of certain Protective Advances (Section 9.11(a));
(ix) Approval of a Post-Foreclosure Plan and related matters
(Section 9.11(e));
(x) Consent to action or proceeding against any Borrower,
Guarantor or the Collateral by any Lender (Section 9.12);
(xi) Except as referred to in subsection (b) below, approval of
any amendment, modification or termination of this Credit
Agreement, or waiver of any provision herein (Section
10.01).
b. Each consent, approval, amendment, modification or waiver
specifically enumerated in Section 10.01(i) through (iii) shall
require the consent of all Lenders.
c. In addition to the required consents or approvals referred to in
subsection (a) above, Agent Bank may at any time request
instructions from Requisite Lenders with respect to any actions
or approvals which, by the terms of this Credit Agreement or of
any of the Loan Documents, Agent Bank is permitted or required to
take or to grant without instructions from any Lenders, and if
such instructions are promptly requested, Agent Bank shall be
absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability
whatsoever to any Lender for refraining from taking any action or
withholding any approval under any of the Loan Documents until it
shall have received such instructions from Requisite Lenders.
Without limiting the foregoing, no Lender shall have any right of
action whatsoever against Agent Bank as a result of Agent Bank
acting or refraining from acting under this Credit Agreement, the
Security Documentation or any of the other Loan Documents in
accordance with the instructions of Requisite Lenders or, where
applicable, all Lenders. Agent Bank shall promptly notify each
Lender at any time that the Requisite Lenders have instructed
Agent Bank to act or refrain from acting pursuant hereto.
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d. Each Lender agrees that any action taken by Agent Bank at the
direction or with the consent of Requisite Lenders in accordance
with the provisions of this Credit Agreement or any Loan
Document, and the exercise by Agent Bank at the direction or with
the consent of Requisite Lenders of the powers set forth herein
or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all
Lenders, except for actions specifically requiring the approval
of all Lenders. All communications from Agent Bank to Lenders
requesting Lenders' determination, consent, approval or
disapproval (i) shall be given in the form of a written notice to
each Lender, (ii) shall be accompanied by a description of the
matter or thing as to which such determination, approval, consent
or disapproval is requested, or shall advise each Lender where
such matter or thing may be inspected, or shall otherwise
describe the matter or issue to be resolved, (iii) shall include,
if reasonably requested by a Lender and to the extent not
previously provided to such Lender, written materials and a
summary of all oral information provided to Agent Bank by
Borrowers or Guarantor in respect of the matter or issue to be
resolved, and (iv) shall include Agent Bank's recommended course
of action or determination in respect thereof. Each Lender shall
reply promptly, but in any event within ten (10) Banking Business
Days (the "Lender Reply Period"). Unless a Lender shall give
written notice to Agent Bank that it objects to the
recommendation or determination of Agent Bank (together with a
written explanation of the reasons behind such objection) within
the Lender Reply Period, such Lender shall be deemed to have
approved of or consented to such recommendation or determination.
With respect to decisions requiring the approval of Requisite
Lenders or all Lenders, Agent Bank shall submit its
recommendation or determination for approval of or consent to
such recommendation or determination to all Lenders and upon
receiving the required approval or consent shall follow the
course of action or determination recommended to Lenders by Agent
Bank or such other course of action recommended by Requisite
Lenders, and each non-responding Lender shall be deemed to have
concurred with such recommended course of action.
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Section 9.11. Agency Provisions Relating to Collateral.
a. Agent Bank is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, from
time to time prior to an Event of Default, to take any action with
respect to any Collateral or Loan Document which may be necessary to
perfect and maintain liens of the Security Documentation upon the
Collateral granted pursuant to the Loan Documents. Agent Bank may
make, and shall be reimbursed by Lenders (in accordance with their Pro
Rata Shares), to the extent not reimbursed by Borrowers or Guarantor,
for, Protective Advance(s) during any one (1) calendar year with
respect to the Collateral up to the sum of (i) amounts expended to pay
real estate taxes, assessments and governmental charges or levies
imposed upon such Collateral, (ii) amounts expended to pay insurance
premiums for policies of insurance related to such Collateral, and
(iii) One Hundred Thousand Dollars ($100,000.00). Protective Advances
in excess of said sum during any calendar year for any Collateral
shall require the consent of Requisite Lenders. In addition, Agent
Bank is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, to
waive the imposition of the late fees provided for in Section 2.08(a)
up to a maximum of two (2) times per calendar year, including any
extensions.
b. Lenders hereby irrevocably authorize Agent Bank, at its option and in
its discretion, to release any Security Documentation granted to or
held by Agent Bank upon any Collateral (i) upon Credit Facility
Termination and repayment and satisfaction of all Borrowings, and all
other Obligations and the termination of this Credit Agreement, or
(ii) if approved, authorized or ratified in writing by Agent Bank at
the direction of all Lenders. Agent Bank shall not be required to
execute any document to evidence the release of the Security
Documentation granted to Agent Bank for the benefit of Lenders herein
or pursuant hereto upon any Collateral if, in Agent Bank's opinion,
such document would expose Agent Bank to liability or create any
obligation or entail any consequence other than the release of such
Security Documentation without recourse or warranty, and such release
shall not in any manner discharge, affect or impair the Obligations or
any Security Documentation upon (or obligations of Borrowers in
respect of) any property which shall continue to constitute part of
the Collateral.
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c. Except as provided in this Credit Agreement, Agent Bank shall have no
obligation whatsoever to any Lender or to any other Person to assure
that the Collateral exists or is owned by Borrowers or is cared for,
protected or insured or has been encumbered or that the Security
Documentation granted to Agent Bank herein or in any of the other Loan
Documents or pursuant hereto or thereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or
are entitled to any particular priority.
d. Should Agent Bank (i) employ counsel for advice or other
representation (whether or not any suit has been or shall be filed)
with respect to any Collateral or any part thereof, or any of the Loan
Documents, or the attempt to enforce any security interest or Security
Documentation on any of the Collateral, or (ii) commence any
proceeding or in any way seek to enforce its rights or remedies under
the Loan Documents, irrespective of whether as a result thereof Agent
Bank shall acquire title to any Collateral, either through
foreclosure, deed in lieu of foreclosure or otherwise, each Lender,
upon demand therefor from time to time, shall contribute its share
(based on its Pro Rata Share) of the reasonable costs and/or expenses
of any such advice or other representation, enforcement or
acquisition, including, but not limited to, fees of receivers or
trustees, court costs, title company charges, filing and recording
fees, appraisers' fees and fees and expenses of attorneys to the
extent not otherwise reimbursed by Borrowers or Guarantor; provided
that Agent Bank shall not be entitled to reimbursement of its
attorneys' fees and expenses incurred in connection with the
resolution of disputes between Agent Bank and other Lenders unless
Agent Bank shall be the prevailing party in any such dispute. Any loss
of principal and interest resulting from any Event of Default shall be
shared by Lenders in accordance with their respective Pro Rata Shares.
It is understood and agreed that in the event Agent Bank determines it
is necessary to engage counsel for Lenders from and after the
occurrence of an Event of Default, said counsel shall be selected by
Agent Bank.
e. In the event that all or any portion of the Collateral is acquired by
Agent Bank as the result of a foreclosure or the acceptance of a deed
or assignment in lieu of foreclosure, or is retained in satisfaction
of all or any part of Borrowers' or Guarantor's obligations, title to
any such Collateral or any portion thereof shall be held in the name
of Agent Bank or a nominee or subsidiary of Agent Bank, as agent, for
the ratable benefit of Agent Bank and Lenders. Agent Bank shall
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prepare a recommended course of action for such Collateral (the
"Post-Foreclosure Plan"), which shall be subject to the approval of
the Requisite Lenders. In the event that Requisite Lenders do not
approve such Post- Foreclosure Plan, any Lender shall be permitted to
submit an alternative Post-Foreclosure Plan to Agent Bank, and Agent
Bank shall submit any and all such additional Post-Foreclosure Plans
to the Lenders for evaluation and the approval of Requisite Lenders.
In accordance with the approved Post- Foreclosure Plan, Agent Bank
shall manage, operate, repair, administer, complete, construct,
restore or otherwise deal with the Collateral acquired and administer
all transactions relating thereto, including, without limitation,
employing a management agent, leasing agent and other agents,
contractors and employees, including agents of the sale of such
Collateral, and the collecting of rents and other sums from such
Collateral and paying the expenses of such Collateral; actions taken
by Agent Bank with respect to the Collateral, which are not provided
for in the approved Post-Foreclosure Plan or reasonably incidental
thereto, shall require the consent of Requisite Lenders by way of
supplement to such Post-Foreclosure Plan. Upon demand therefor from
time to time, each Lender will contribute its share (based on its Pro
Rata Share) of all reasonable costs and expenses incurred by Agent
Bank pursuant to the Post-Foreclosure Plan in connection with the
construction, operation, management, maintenance, leasing and sale of
such Collateral. In addition, Agent Bank shall render or cause to be
rendered by the managing agent, to each of the Lenders, monthly, an
income and expense statement for such Collateral, and each of the
Lenders shall promptly contribute its Pro Rata Share of any operating
loss for such Collateral, and such other expenses and operating
reserves as Agent Bank shall deem reasonably necessary pursuant to and
in accordance with the Post-Foreclosure Plan. To the extent there is
net operating income from such Collateral, Agent Bank shall, in
accordance with all applicable Gaming Laws and the Post-Foreclosure
Plan, determine the amount and timing of distributions to Lenders. All
such distributions shall be made to Lenders in accordance with their
respective Pro Rata Shares. Lenders acknowledge that if title to any
Collateral is obtained by Agent Bank or its nominee, such Collateral
will not be held as a permanent investment but will be liquidated as
soon as practicable. Agent Bank shall undertake to sell such
Collateral, at such price and upon such terms and conditions as the
Requisite Lenders shall reasonably determine to be most advantageous.
Any purchase money mortgage or deed of trust taken in connection with
the disposition of such Collateral in accordance with the immediately
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preceding sentence shall name Agent Bank, as agent for Lenders, as the
beneficiary or mortgagee. In such case, Agent Bank and Lenders shall
enter into an agreement with respect to such purchase money mortgage
defining the rights of Lenders in the same Pro Rata Shares as provided
hereunder, which agreement shall be in all material respects similar
to this Article IX insofar as the same is appropriate or applicable.
Section 9.12. Lender Actions Against Collateral.
Each Lender agrees that it will not take any action, nor institute any
actions or proceedings, against Borrowers, Guarantor or any other obligor
hereunder, under the Security Documentation or under any other Loan Documents
with respect to exercising claims against or rights in any Collateral without
the consent of Requisite Lenders.
Section 9.13. Ratable Sharing.
Subject to Section 9.03 and 9.04, Lenders agree among themselves that (i)
with respect to all amounts received by them which are applicable to the payment
of the Obligations, equitable adjustment will be made so that, in effect, all
such amounts will be shared among them ratably in accordance with their Pro Rata
Shares, whether received by voluntary payment, by counterclaim or cross action
or by the enforcement of any or all of the Obligations, or the Collateral, (ii)
if any of them shall by voluntary payment or by the exercise of any right of
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of the Obligations held by it which is greater than its Pro Rata Share of
the payments on account of the Obligations, the one receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, that if all or part of such
excess payment received by the purchasing party is thereafter recovered from it,
those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. Borrowers
and Guarantor agree that any Lender so purchasing a participation from another
Lender pursuant to this Section 9.13 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct credito of Borrowers and Guarantor in
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the amount of such participation. No Lender shall exercise any setoff, banker's
lien or other similar right in respect to any Obligations without the prior
written approval by Agent Bank.
Section 9.14. Delivery of Documents.
Agent Bank shall as soon as reasonably practicable distribute to each
Lender at its primary address set forth on the appropriate counterpart signature
page hereof, or at such other address as a Lender may request in writing,
(i)copies of all documents to which such Lender is a party or of which is
executed or held by Agent Bank on behalf of such Lender, (ii) all documents of
which Agent Bank receives copies from Borrowers or Guarantor pursuant to Article
VI and Section 10.03, (iii) all other documents or information which Agent Bank
is required to send to Lenders pursuant to the terms of this Credit Agreement,
(iv) other information or documents received by Agent Bank at the request of any
Lender, and (v) all notices received by Agent Bank pursuant to Section 5.20. In
addition, within fifteen (15) Banking Business Days after receipt of a request
in writing from a Lender for written information or documents provided by or
prepared by Borrowers, or Guarantor, Agent Bank shall deliver such written
information or documents to such requesting Lender if Agent Bank has possession
of such written information or documents in its capacity as Agent Bank or as a
Lender.
Section 9.15. Notice of Events of Default.
Agent Bank shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default (other than nonpayment of
principal of or interest on the Credit Facility) unless Agent Bank has received
notice in writing from a Lender, Borrowers or Guarantor referring to this Credit
Agreement or the other Loan Documents, describing such event or condition and
expressly stating that such notice is a notice of a Default or Event of Default.
Should Agent Bank receive such notice of the occurrence of a Default or Event of
Default, or should Agent Bank send Borrowers or Guarantor a notice of Default or
Event of Default, Agent Bank shall promptly give notice thereof to each Lender.
ARTICLE X
GENERAL TERMS AND CONDITIONS
The following terms and conditions shall be applicable throughout the term
of this Credit Agreement:
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Section 10.01. Amendments and Waivers.
(a) No amendment or modification of any provision of this Credit Agreement
shall be effective without the written agreement of Requisite Lenders (after
notice to all Lenders), Borrowers and Guarantor (except for amendments to
Section 9.04(a) which do not require the consent of Borrowers or Guarantor), and
(b) no termination or waiver of any provision of this Credit Agreement, or
consent to any departure by Borrowers or Guarantor therefrom (except as
expressly provided in Section 9.11(a) with respect to waivers of late fees),
shall in any event be effective without the written concurrence of Requisite
Lenders (after notice to all Lenders), which Requisite Lenders shall have the
right to grant or withhold at their sole discretion, except that the following
amendments, modifications or waivers shall require the consent of all Lenders:
(i) modify any requirement hereunder that any particular action be taken
by all the Lenders or by the Requisite Lenders, modify this Section
10.01 or change the definition of "Requisite Lenders", or remove Agent
Bank under Section 9.09(a), shall be effective unless consented to by
all of the Lenders;
(ii) increase the Aggregate Commitment or the Syndication Interest of any
Lender, release any Collateral except as specifically provided in the
Credit Agreement, release the Guaranty or any Guarantor from liability
thereunder, extend the Maturity Date or change any provision expressly
requiring the consent of all Lenders shall be made without the consent
of each Lender; or
(iii)reduce any fees described in Section 2.07(b) or extend the due date
for, or reduce or postpone the amount of, any Scheduled Reductions on
the Credit Facility, or reduce the rate of interest or postpone the
payment of interest on the Credit Facility, shall be made without the
consent of all of the Lenders.
No amendment, modification, termination or waiver of any provision of
Article IX or any other provision referring to Agent Bank shall be
effective without the written concurrence of Agent Bank, but only if
such amendment, modification, termination or waiver alters the
obligations or rights of Agent Bank. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which it was given. No notice to or demand on Borrowers or
Guarantor in any case shall entitle Borrowers or Guarantor to any
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other further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in
accordance with this Section 10.01 shall be binding on each assignee,
transferee or recipient of Agent Bank's or any Lender's Syndication
Interest under this Credit Agreement or the Credit Facility at the
time outstanding.
Section 10.02. Failure to Exercise Rights.
Nothing herein contained shall impose upon Banks, Borrowers or Guarantor
any obligation to enforce any terms, covenants or conditions contained herein.
Failure of Banks, Borrowers or Guarantor, in any one or more instances, to
insist upon strict performance by Borrowers, Guarantor or Banks of any terms,
covenants or conditions of this Credit Agreement or the other Loan Documents,
shall not be considered or taken as a waiver or relinquishment by Banks,
Borrowers or Guarantor of their right to insist upon and to enforce in the
future, by injunction or other appropriate legal or equitable remedy, strict
compliance by Borrowers, Guarantor or Banks with all the terms, covenants and
conditions of this Credit Agreement and the other Loan Documents. The consent of
Banks, Borrowers or Guarantor to any act or omission by Borrowers, Guarantor or
Banks shall not be construed to be a consent to any other or subsequent act or
omission or to waive the requirement for Banks', Borrowers' or Guarantor's
consent to be obtained in any future or other instance.
Section 10.03. Notices and Delivery.
Unless otherwise specifically provided herein, any consent, notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied or sent by courier service or United States
mail and shall be deemed to have been given when delivered in person or by
courier service, upon receipt of a telecopy (or on the next Banking Business Day
if such telecopy is received on a non- Banking Business Day or after 5:00 p.m.
on a Banking Business Day) or four (4) Banking Business Days after deposit in
the United States mail (registered or certified, with postage prepaid and
properly addressed). Notices to Agent Bank pursuant to Articles II shall not be
effective until received by Agent Bank. For the purposes hereof, the addresses
of the parties hereto (until notice of a change thereof is delivered as provided
in this Section 10.03) shall be as set forth below each party's name on the
signature pages hereof, or, as to each party, at such other address as may be
designated by such party in an Assignment and Assumption Agreement or in a
written notice to all of the other parties. All deliveries to be made to Agent
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Bank for distribution to the Lenders shall be made to Agent Bank at the
addresses specified for notice on the signature page hereto and in addition, a
sufficient number of copies of each such delivery shall be delivered to Agent
Bank for delivery to each Lender at the address specified for deliveries on the
signature page hereto or such other address as may be designated by Agent Bank
in a written notice.
Section 10.04. Modification in Writing.
This Credit Agreement and the other Loan Documents constitute the entire
agreement between the parties and supersede all prior agreements, including,
without limitation, the Commitment Letter, whether written or oral with respect
to the subject matter hereof, including, but not limited to, any term sheets
furnished by any of the Banks to Borrowers and/or Guarantor. Neither this Credit
Agreement, nor any other Loan Documents, nor any provision herein, or therein,
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
Section 10.05. Other Agreements.
If the terms of any documents, certificates or agreements delivered in
connection with this Credit Agreement are inconsistent with the terms of the
Loan Documents, Borrowers and Guarantor shall use their best efforts to amend
such document, certificate or agreement to the satisfaction of Agent Bank to
remove such inconsistency.
Section 10.06. Counterparts.
This Credit Agreement may be executed by the parties hereto in any number
of separate counterparts with the same effect as if the signatures hereto and
hereby were upon the same instrument. All such counterparts shall together
constitute but one and the same document.
Section 10.07. Rights, Powers and Remedies are Cumulative.
None of the rights, powers and remedies conferred upon or reserved to Agent
Bank, Banks, Borrowers or Guarantor in this Credit Agreement are intended to be
exclusive of any other available right, power or remedy, but each and every such
right, power and remedy shall be cumulative and not alternative, and shall be in
addition to every right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or by statute. Any forbearance, delay or
omission by Agent Bank, Banks, Borrowers or Guarantor in the exercise of any
right, power or remedy shall not impair any such right, power or remedy or be
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considered or taken as a waiver or relinquishment of the right to insist upon
and to enforce in the future, by injunction or other appropriate legal or
equitable remedy, any of said rights, powers and remedies given to Agent Bank,
Banks, Borrowers or Guarantor herein. The exercise of any right or partial
exercise thereof by Agent Bank, Banks, Borrowers or Guarantor shall not preclude
the further exercise thereof and the same shall continue in full force and
effect until specifically waived by an instrument in writing executed by Agent
Bank or Banks, as the case may be.
Section 10.08. Continuing Representations.
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Credit Agreement, the making of the Credit
Facility hereunder and the execution and delivery of each other Loan Document
until and final payment of all sums owing under the Credit Facility and each of
the Credit Facility have been irrevocably terminated.
Section 10.09. Successors and Assigns.
All of the terms, covenants, warranties and conditions contained in this
Credit Agreement shall be binding upon and inure to the sole and exclusive
benefit of the parties hereto and their respective successors and assigns.
Section 10.10. Assignment of Loan Documents by Borrowers or Syndication
Interests by Lenders.
a. This Credit Agreement and the other Loan Documents to which Borrowers
are parties will be binding upon and inure to the benefit of
Borrowers, the Agent Bank, each of the Banks, and their respective
successors and assigns, except that, Borrowers may not assign their
rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Any attempted
assignment or delegation in contravention of the foregoing shall be
null and void. Any Lender may at any time pledge its Syndication
Interest in the Credit Facility, the Credit Agreement and the Loan
Documents to a Federal Reserve Bank, but no such pledge shall release
that Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure of
such pledge.
b. Each Lender may assign all or any part of its Syndication Interest in
the Credit Facility to any Affiliate of such Lender or to any other
Lender without consent and to one or more financial institutions that
are Eligible Assignees with bthe prior consent of bthe xXxxxx Bank and
- 96 -
Borrowers (which consents shall not be unreasonably withheld or
delayed); provided, however, that Agent Bank and its Affiliates shall
at all times during the life of the Credit Facility hold aggregate
Syndication Interests no less than the amount of the largest
Syndication Interest held by any Lender in the Credit Facility; and
further provided, however, that the minimum amount of each such
assignment shall be Ten Million Dollars ($10,000,000.00), or such
lesser amount as constitutes the remaining amount of a Lender's
Syndication Interest in the Credit Facility (except that there shall
be no minimum assignment among the Lenders or to their Affiliates),
and each assignee Lender (or assignor if so agreed between the
assignee Lender and such assignor) shall pay to the Agent Bank an
assignment fee of Two Thousand Five Hundred Dollars ($2,500.00) with
respect to each such assignment. Each such assignment shall be
evidenced by an assignment substantially in the form of an Assignment
and Assumption Agreement or other form reasonably acceptable to Agent
Bank, Borrowers and Guarantor. Upon any such assignment, the assignee
financial institution shall become a Lender for all purposes under the
Credit Agreement and each of the Loan Documents and the assigning
Lender shall be released from its further obligations hereunder to the
extent of such assignment. Agent Bank agrees to give prompt notice to
Borrowers and each of the Lenders of each assignment made under this
Section 10.10(b) and to deliver to Borrowers and each of the Lenders
each revision to the Schedule of Lenders' Proportions in Credit
Facility made as a consequence of each such assignment.
c. Each Lender may sell sub-participations without notice to or consent
of the Borrowers or Agent Bank to any Eligible Subparticipant for all
or any part of its Syndication Interest in the Credit Facility;
provided, however, that (i) such selling Lender shall remain
responsible for its total obligations under the Credit Agreement and
each of the Loan Documents, (ii) the Borrowers and the Agent Bank
shall continue to deal solely with such selling Lender in connection
with such Lender's rights and obligations under the Credit Agreement
and each of the Loan Documents, and (iii) such selling Lender shall
not sell any participation under which the Eligible Subparticipant
would have rights to approve any amendment or waiver relating to the
Credit Agreement or any Loan Document except to the extent any such
amendment or waiver would (1) extend the final Maturity Date or the
date for the payment or any installments of fees, principal or
interest due in respect of the Credit Facility, (2) reduce the amount
of any Scheduled Reduction in respect to the Credit Facility, (3)
reduce the interest rates applicable to the Credit Facility or (4)
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release any material portion of the Collateral or Guarantor.
Notwithstanding the foregoing, the rights of the Lenders to make
assignments and to grant sub-participations shall be subject to the
approval by the Gaming Authorities of the assignee or sub-participant,
to the extent required by applicable Gaming Laws.
Section 10.11. Action by Lenders.
Whenever Banks shall have the right to make an election, or to exercise any
right, or their consent shall be required for any action under this Credit
Agreement or the Loan Documents, then such election, exercise or consent shall
be given or made for all Banks by Agent Bank in accordance with the provisions
of Section 10.01. Notices, reports and other documents required to be given by
Borrowers and/or Guarantor to Banks hereunder may be given by Borrowers and/or
Guarantor to Agent Bank on behalf of Banks, with sufficient copies for
distribution to each of the Banks, and the delivery to Agent Bank shall
constitute delivery to Banks. In the event any payment or payments are received
by a Lender other than Agent Bank, Borrowers and Guarantor consent to such
payments being shared and distributed as provided herein.
Section 10.12. Time of Essence.
Time shall be of the essence of this Credit Agreement.
Section 10.13. Choice of Law and Forum.
This Credit Agreement and each of the Loan Documents shall be governed by
and construed in accordance with the internal laws of the State of Nevada
without regard to principles of conflicts of law; provided, however, that
Colorado law shall govern the perfection and enforcement of the Security
Documentation. Borrowers and Guarantor further agree that the full and exclusive
forum for the determination of any action relating to this Credit Agreement, the
Loan Documents, or any other document or instrument delivered in favor of Banks
pursuant to the terms hereof, other than the Security Documentation, shall be
either an appropriate Court of the State of Nevada or the United States District
Court or United States Bankruptcy Court for the District of Nevada. The full and
exclusive forum for the determination of any action relating to the Security
Documentation or the Collateral shall either be an appropriate court of the
State of Colorado or the United States District or the United States Bankruptcy
Court for the District of Colorado.
- 98 -
Section 10.14. Arbitration.
a. Other than an action or legal proceeding instituted by Agent Bank for
the purpose of exercising any remedy under the Security Documentation,
upon the request of any party, whether made before or after the
institution of any legal proceeding, any action, dispute, claim or
controversy of any kind (e.g., whether in contract or in tort,
statutory or common law, legal or equitable) ("Dispute") now existing
or hereafter arising between the parties in any way arising out of,
pertaining to or in connection with the Credit Agreement, Loan
Documents or any related agreements, documents, or instruments
(collectively the "Documents"), may, by summary proceedings (e.g., a
plea in abatement or motion to stay further proceedings), bring an
action in court to compel arbitration of any Dispute.
b. All Disputes between the parties shall be resolved by binding
arbitration governed by the Commercial Arbitration Rules of the
American Arbitration Association. Judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction.
c. No provision of, nor the exercise of any rights under this arbitration
clause shall limit the rights of any party, and the parties shall have
the right during any Dispute, to seek, use and employ ancillary or
preliminary remedies, judicial or otherwise, for the purposes of
realizing upon, preserving, protecting or foreclosing upon any
property, real or personal, which is involved in a Dispute, or which
is subject to, or described in, the Documents, including, without
limitation, rights and remedies relating to: (i) foreclosing against
any real or personal property collateral or other security by the
exercise of a power of sale under the Security Documentation or other
security agreement or instrument, or applicable law, (ii) exercising
self-help remedies (including setoff rights) or (iii) obtaining
provisional or ancillary remedies such as injunctive relief,
sequestration, attachment, garnishment or the appointment of a
receiver from a court having jurisdiction before, during or after the
pendency of any arbitration. The institution and maintenance of an
action for judicial relief or pursuit of provisional or ancillary
remedies or exercise of self-help remedies shall not constitute a
waiver of the right of any party, including the plaintiff, to submit
the Dispute to arbitration nor render inapplicable the compulsory
arbitration provision hereof.
- 99 -
Section 10.15. Waiver of Jury Trial.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS, GUARANTOR AND EACH OF
THE BANKS EACH MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS CREDIT AGREEMENT, THE NOTE, THE GUARANTY OR ANY OF THE LOAN
DOCUMENTS, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF BORROWERS, GUARANTOR AND BANKS WITH RESPECT TO THIS CREDIT
AGREEMENT, THE NOTE, THE GUARANTY OR ANY OF THE LOAN DOCUMENTS, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS, GUARANTOR AND EACH OF THE
BANKS EACH MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND,
OR PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT THE
DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT
OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING PARTY TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 10.16. Scope of Approval and Review.
Any inspection of the Casino Facilities shall be deemed to be made solely
for Banks' internal purposes and shall not be relied upon by the Borrowers,
Guarantor or any third party. In no event shall Lenders be deemed or construed
to be joint venturers or partners of Borrowers or Guarantor.
Section 10.17. Severability of Provisions.
In the event any one or more of the provisions contained in this Credit
Agreement shall 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.
Section 10.18. Cumulative Nature of Covenants.
All covenants contained herein are cumulative and not exclusive of each
other covenant. Any action allowed by any covenant shall be allowed only if such
action is not prohibited by any other covenant.
Section 10.19. Costs to Prevailing Party.
If any action or arbitration proceeding is brought by any party against any
other party under this Credit Agreement or any of the Loan Documents, the
prevailing party shall be entitled to recover such costs and attorney's fees as
the court in such action or proceeding may adjudge reasonable.
- 100 -
Section 10.20. Expenses.
a. Generally. Borrowers and Guarantor agree upon demand to pay, or
reimburse Agent Bank for, all of Agent Bank's external audit, legal
(to the extent incurred following the Closing Date and not relating to
the closing of this Credit Agreement), appraisal, valuation and
investigation expenses and for all other reasonable out-of-pocket
costs and expenses of every type and nature (excluding Lenders' travel
expenses, other than those travel expenses incurred by Agent Bank both
before and after the Closing Date in connection with the sale of
Syndication Interests in the Credit Facility, but including, without
limitation, the reasonable fees, expenses and disbursements of Agent
Bank's internal appraisers, environmental advisors or legal counsel)
incurred by Agent Bank at any time (whether prior to, on or after the
date of this Credit Agreement) in connection with (i) its own audit
and investigation of Borrowers or Guarantor and the Collateral; (ii)
the negotiation, preparation and execution of this Credit Agreement
(including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article III), the
Security Documentation and the other Loan Documents and the advance of
Borrowings; (iii) the review and, if applicable, acceptance of
additional Collateral, including appraisal fees, title charges,
recording fees and reasonable attorneys' fees and costs incurred in
connection therewith; (iv) any appraisals performed pursuant to
Section 5.24; (v) the creation, perfection or protection of the
Security Documentation on the Collateral (including, without
limitation, any fees and expenses for title and lien searches, local
counsel in various jurisdictions, filing and recording fees and taxes,
duplication costs and corporate search fees); (vi) enforcement of the
Credit Agreement, the other Loan Documents, the Borrowings and the
Collateral, including, without limitation, consultation with attorneys
in connection therewith; and (vii) the protection, collection or
enforcement of any of the Obligations or the Collateral, including
Protective Advances.
b. After Event of Default. Borrowers and Guarantor further agree to pay,
or reimburse Agent Bank and Lenders, for all reasonable out-of-pocket
costs and expenses, including without limitation reasonable attorneys'
fees and disbursements incurred by Agent Bank or Lenders after the
occurrence of an Event of Default (i) in enforcing any Obligation or
in foreclosing against the Collateral or exercising or enforcing any
other right or remedy available by reason of such Event of Default;
(ii) in connection with any refinancing or restructuring of the credit
- 101 -
arrangements provided under this Credit Agreement in the nature of a
"workout" or in any insolvency or bankruptcy proceeding; (iii) in
commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal
proceeding relating to Borrowers, or Guarantor and related to or
arising out of the transactions contemplated hereby; (iv) in taking
any other action in or with respect to any suit or proceeding (whether
in bankruptcy or otherwise) relating to the Borrowers or Guarantor or
arising out of or relating to the Credit Facility; (v) in protecting,
preserving, collecting, leasing, selling, taking possession of, or
liquidating any of the Collateral; or (vi) in attempting to enforce or
enforcing any lien in any of the Collateral or any other rights under
the Security Documentation.
Section 10.21. Setoff.
In addition to any rights and remedies of the Agent Bank provided by law,
if any Event of Default exists, Agent Bank is authorized at any time and from
time to time, without prior notice to the Borrowers or Guarantor, any such
notice being waived by the Borrowers or Guarantor to the fullest extent
permitted by law, to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by Agent Bank to or for
the credit or the account of any Borrower or Guarantor against any and all
obligations of Borrowers or Guarantor under the Credit Facility, now or
hereafter existing, irrespective of whether or not the Agent Bank shall have
made demand under this Credit Agreement or any Loan Document and although such
amounts owed may be contingent or unmatured. Agent Bank agrees promptly to
notify the Borrowers and Guarantor (and Agent Bank shall promptly notify each
Lender) after any such setoff and application made by Agent Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of Agent Bank under this Section 10.21
are in addition to the other rights and remedies which Agent Bank may have.
Section 10.22. Schedules Attached.
Schedules are attached hereto and incorporated herein and made a part
hereof as follows:
Schedule 2.01(a) - Schedule of Lenders' Proportions in Credit Facility
- 102 -
Schedule 2.01(c) - Aggregate Commitment Reduction Schedule
Schedule 3.16(a) - Schedule of Existing Real Estate Debt
Schedule 3.16(b) - Schedule of Existing Equipment Debt
Schedule 3.17 - Schedule of Significant Litigation
Schedule 4.16 - Schedule of Spaceleases
Schedule 4.17 - Schedule of Equipment Leases and Contracts
Schedule 4.25 - Schedule of Contingent Liabilities
Section 10.23. Exhibits Attached. Exhibits are attached hereto and
incorporated herein and made a part hereof as follows:
Exhibit A - Note - Form
Exhibit B - Guaranty - Form
Exhibit C - Notice of Borrowing - Form
Exhibit D - Authorized Officer's Certificate - Form
Exhibit E - Closing Certificate - Form
Exhibit F - Compliance Certificate - Form
Exhibit G - Legal Opinion - Form
Exhibit H - Assignment and Assumption Agreement - Form
Exhibit I - Payment Subordination Agreement - Form
Exhibit J - Title Report
- 103 -
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed as of the day and year first above written.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
CENTURY CASINOS CRIPPLE
CREEK, INC.,
a Colorado corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
GUARANTOR:
CENTURY CASINOS, INC.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
Address for the Borrower
Consolidation and Guarantor:
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Teufelberger
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Parcel, Mauro, Xxxxxx &
Xxxxxxxxx, P.C.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
BANKS:
XXXXX FARGO BANK,
National Association,
Agent Bank and Lender
By /s/ Xxxx Xxxxxxxx
--------------------
Xxxx Xxxxxxxx
Vice President
Address:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, V.P.
Phone: (000) 000-0000
Fax: (000) 000-0000
xxxx.xx/xxxx0
032897dsh
- 104 -
SCHEDULE 2.01(a)
SCHEDULE OF LENDERS' PROPORTIONS
IN CREDIT FACILITY
PROPORTIONATE
SYNDICATION
MAXIMUM AMOUNT INTEREST IN
NAME OF LENDER OF PRINCIPAL CREDIT FACILITY
-------------- ------------ ---------------
Xxxxx Fargo Bank,
National Association $ 13,000,000.00 100%
TOTAL $ 13,000,000.00 100%
=============== ====
SCHEDULE 2.01(a) TO
CREDIT AGREEMENT
EXHIBIT A
REVOLVING CREDIT NOTE
$13,000,000.00 March 31, 1997
FOR VALUE RECEIVED, the undersigned, WMCK VENTURE CORP., a
Delaware corporation, CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado
corporation and WMCK ACQUISITION CORP., a Delaware corporation (collectively,
the "Borrowers") jointly and severally promise to pay to the order of XXXXX
FARGO BANK, National Association, as Agent Bank on behalf of itself and the
other Lenders as defined and described in the Credit Agreement described
hereinbelow (each individually being referred as a "Lender" and collectively as
the "Lenders") the unpaid balance of such sums as Lenders may hereafter loan or
advance or re-loan to the Borrower from time to time pursuant to the Credit
Facility as described in the Credit Agreement, hereinafter defined, the unpaid
balance of which shall not exceed in the aggregate the Maximum Permitted Balance
at any time, together with interest on the principal balance outstanding from
time to time at the rate or rates set forth below commencing on the date of each
Borrowing hereunder and continuing until fully paid, as follows:
A. Interest Rate. Interest shall accrue on the entire outstanding principal
balance at the Prime Rate plus one percent (1%) per annum. Interest accrued
on the outstanding unpaid balance of the principal sum shall be paid
quarterly commencing on July 1, 1997 and continuing on October 1, January
1, April 1 and July 1 of each and every year and on the Maturity Date.
B. Principal Repayment. A Scheduled Reduction payment of principal in the
amount of Three Hundred Seventy-Five Thousand Dollars ($375,000.00) shall
be made quarterly on each Reduction Date as set forth on the Aggregate
Commitment Reduction Schedule, Schedule 2.01(c) hereto, until the Maturity
Date, on which date the remaining balance of the principal sum, together
with all unpaid interest accrued thereon shall be fully paid.
Notwithstanding the Scheduled Reductions, principal shall be repaid from
time to time as may be necessary to cause the Funded Outstandings to be
equal to or less than the Maximum Permitted Balance at all times. Within
the foregoing limits, Borrowers may borrow, repay and reborrow the
Available Borrowings in accordance with the terms and provisions of the
Credit Agreement.
Page 1 of 6
C. General Conditions.
(1) Definitions. When used herein the following terms shall have the
following meanings:
Agent Bank shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Aggregate Commitment Reduction Schedule shall mean the Aggregate
Commitment Reduction Schedule marked "Schedule 2.01(c)", affixed to
this Note and by this reference incorporated herein and made a part
hereof, setting forth the Scheduled Reductions and Maximum Scheduled
Balance as of each Reduction Date under the Credit Facility.
Authorized Officer shall have the meaning as defined in Section 1.01
of the Credit Agreement.
Available Borrowings shall have the meaning as defined in Section 1.01
of the Credit Agreement.
Banking Business Day shall have the meaning as defined in Section 1.01
of the Credit Agreement.
Borrowers shall have the meaning set forth in the preamble to this
Note.
Borrowings shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Closing Date shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Credit Agreement shall mean that certain Credit Agreement of even date
herewith executed by and among Borrowers, Agent Bank and Lenders, as
therein defined, as such
Page 2 of 6
Credit Agreement may be amended, modified, supplemented or restated
from time to time.
Default Rate shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Dollar(s) and the sign ($) shall mean lawful money of the United
States of America.
Funded Outstandings shall have the meaning as defined in Section 1.01
of the Credit Agreement.
Lender(s) shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Maturity Date shall mean April 1, 2001.
Maximum Permitted Balance shall have the meaning as defined in Section
1.01 of the Credit Agreement.
Maximum Scheduled Balance shall have the meaning as defined in Section
1.01 of the Credit Agreement.
Note shall mean this Revolving Credit Note.
Prime Rate shall have the meaning as defined in Section 1.01 of the
Credit Agreement.
Reduction Date(s) shall mean reference to each Reduction Date as set
forth on the Aggregate Commitment Reduction Schedule.
Scheduled Reductions shall mean the amount by which the Aggregate
Commitment is reduced on each Reduction Date as set forth on the
Aggregate Commitment Reduction Schedule.
Security Documentation shall have the meaning as defined in Section
1.01 of the Credit Agreement.
Page 3 of 6
Syndication Interest(s) shall have the meaning as defined in Section
1.01 of the Credit Agreement.
WFB shall mean Xxxxx Fargo Bank, National Association.
(2) Borrowing Procedures. Borrowings hereunder shall be made in accordance
with the terms, provisions and procedures set forth in the Credit
Agreement.
(3) Records. The Agent Bank shall record in its records the date and
amount of each disbursement made, each repayment and reborrowing. The
aggregate unpaid principal amount, rate, and interest amount so
recorded shall be calculated by the Agent Bank and shall be binding
upon Borrowers subject to Borrowers' right to require corrections of
errors in calculation. The failure to so record any such amount or any
error in so recording any such amount shall not, however, limit or
otherwise affect the obligations of Borrowers hereunder to repay the
principal amount outstanding together with all interest accruing
thereon.
(4) Setting and Notice of Rate. The Prime Rate shall be determined by the
Agent Bank, and notice of each change thereof shall be given promptly
to Borrowers. Each determination of the applicable Prime Rate shall be
conclusive and binding upon the Borrowers, in the absence of
demonstrable error. The Agent Bank shall, upon written request of
Borrowers, deliver to Borrowers a statement showing the computations
used by the Agent Bank in determining any rate hereunder.
(5) Computation of Interest. Computation of interest shall be calculated
on the basis of a year of three hundred sixty (360) days and the
actual number of days elapsed. The applicable Prime Rate shall be
effective the same day as a change in the Prime Rate is announced by
WFB as being effective.
(6) Prepayments. This Note may be prepaid at any time in whole or in part
without penalty as provided in Section 2.06(a) of the Credit
Agreement.
Page 4 of 6
D. Default. The "Late Charges and Default Rate" provisions contained in
Section 2.08 and the "Events of Default" provisions contained in
Article VII of the Credit Agreement are hereby incorporated by this
reference as though fully set forth herein.
E. Waivers. Borrowers waive diligence, demand, presentment for payment,
protest and notice of protest. Borrowers waive any rights which they
might otherwise have under Colorado Revised Statutes xx.xx. 00-00-000
or 00-00-000 (or under any corresponding future statute or rule of law
in any jurisdiction) by reason of any release of fewer than all of the
Borrowers.
F. Collection Costs. In the event of the occurrence of an Event of
Default, the Borrowers agree to pay all reasonable costs of
collection, including a reasonable attorney's fee, in addition to and
at the time of the payment of such sum of money and/or the performance
of such acts as may be required to cure such default. In the event
legal action is commenced for the collection of any sums owing
hereunder the undersigned agrees that any judgment issued as a
consequence of such action against Borrowers shall bear interest at a
rate equal to the Default Rate until fully paid.
G. Interest Rate Limitation. Notwithstanding any provision herein or in
any document or instrument now or hereafter securing this Note, the
total liability for payments in the nature of interest shall not
exceed the limits now imposed by the applicable laws of the State of
Nevada or the United States of America.
H. Security. This Note is secured by the Security Documentation described
in the Credit Agreement.
I. Governing Law. This Note has been delivered in Las Vegas, Nevada, and
shall be governed by and construed in accordance with the laws of the
State of Nevada.
J. Partial Invalidity. If any provision of this Note shall be prohibited
by or invalid under any applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision of any other
provision of this Note.
Page 5 of 6
K. Incorporation of Credit Agreement. This Note is issued under, and
subject to, the terms, covenants and conditions of the Credit
Agreement, which Credit Agreement is by this reference incorporated
herein and made a part hereof.
IN WITNESS WHEREOF, this Note has been executed as of the date first
hereinabove written.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
CENTURY CASINOS CRIPPLE
CREEK, INC.,
a Colorado corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
Page 6 of 6
EXHIBIT B
GENERAL CONTINUING GUARANTY
THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of March 31, 1997,
is executed and delivered by CENTURY CASINOS, INC., a Delaware corporation
(hereinafter referred to as the "Guarantor"), in favor of the Beneficiaries,
referred to below, and in light of the following:
RECITALS:
WHEREAS:
A. Reference is made to that certain Credit Agreement, dated as of March
31, 1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among WMCK Venture Corp., a Delaware corporation,
Century Casinos Cripple Creek, Inc., a Colorado corporation and WMCK Acquisition
Corp., a Delaware corporation (collectively, the "Borrowers"), the Lenders
therein named (each, together with their respective successors and assigns,
individually being referred to as a "Lender" and collectively as the "Lenders")
and Xxxxx Fargo Bank, National Association, as administrative and collateral
agent for the Lenders (herein, in such capacity, called the "Agent Bank" and,
together with the Lenders, collectively referred to as the "Banks").
B. For the purpose of this Guaranty, all capitalized terms not otherwise
specifically defined herein shall have the same meaning given them in Section
1.01 of the Credit Agreement as though fully restated verbatim.
C. In order to induce Beneficiaries to make Borrowings, loans, advances and
extend financial accommodations to Borrowers pursuant to the Credit Agreement,
and in consideration thereof, and in consideration of any Borrowings, loans,
advances, or other financial accommodations heretofore or hereafter extended by
Beneficiaries to Borrowers, whether pursuant to the Credit Agreement or
otherwise, Guarantor has agreed to guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees,
in favor of Beneficiaries, as follows:
1. Definitions and Construction.
(a) Definitions. The following terms, as used in this Guaranty, shall have
the following meanings:
"Agent Bank" shall mean Xxxxx Fargo Bank, National Association, as the
administrative and collateral agent for each of the Banks under the Credit
Agreement.
"Beneficiaries" shall mean a collective reference to Agent Bank and the
Banks.
"Borrowers" shall mean collective reference to WMCK Venture Corp., a
Delaware corporation, Century Casinos Cripple Creek, Inc., a Colorado
corporation and WMCK Acquisition Corp., a Delaware corporation.
"Credit Agreement" shall have the meaning set forth by Recital A of this
Guaranty.
"Guarantied Obligations" shall mean: (a) the due and punctual payment of
the principal of, and interest (including post petition interest and including
any and all interest which, but for the application of the provisions of the
Bankruptcy Code, would have accrued on such amounts) on, and premium, if any, on
the Note; and (b) the due and punctual payment of all present or future
Indebtedness owing by Borrowers.
"Guarantor" shall have the meaning set forth in the preamble to this
Guaranty.
"Guaranty" shall have the meaning set forth in the preamble to this
document.
"Indebtedness" shall mean any and all obligations, indebtedness, or
liabilities of any kind or character owed to Beneficiaries, or any of them, and
arising directly or indirectly out of or in connection with the Credit
Agreement, the Note, the Environmental Certificate, or any of the other Loan
Documents, including all such obligations, indebtedness, or liabilities, whether
for principal, interest (including post petition interest and including any and
all interest which, but for the application of the provisions of the Bankruptcy
Code, would have accrued on such amounts), premium, reimbursement obligations,
fees, costs, expenses (including attorneys' fees), or indemnity obligations,
whether heretofore, now, or hereafter made, incurred, or created, whether
2
voluntarily or involuntarily made, incurred, or created, whether secured or
unsecured (and if secured, regardless of the nature or extent of the security),
whether absolute or contingent, liquidated or unliquidated, or determined or
indeterminate, whether Borrowers are liable individually or jointly with others,
and whether recovery is or hereafter becomes barred by any statute of
limitations or otherwise becomes unenforceable for any reason whatsoever,
including any act or failure to act by Beneficiaries.
"Lenders" shall have the meaning set forth in Recital Paragraph A of this
Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the part includes the whole, the term "including"
is not limiting, and the term "or" has the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and other
similar terms refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Any reference in this Guaranty to any of the
following documents includes any and all alterations, amendments, extensions,
modifications, renewals, or supplements thereto or thereof, as applicable: the
Loan Documents; the Credit Agreement; this Guaranty; the Environmental
Certificate; and the Note.
2. Guarantied Obligations. Guarantor hereby irrevocably and unconditionally
guaranties to Beneficiaries, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) the due and punctual payment of
the Guarantied Obligations, in each case when the same shall become due and
payable, whether at maturity, pursuant to a mandatory payment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrowers of all of the agreements, conditions, covenants,
and obligations of Borrowers contained in the Credit Agreement, the Note, the
Environmental Certificate and under each of the other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
3
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received and acknowledged by Beneficiaries, (b) no such revocation shall apply
to any Guarantied Obligations in existence on such date (including any
subsequent continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions thereof to the
extent permitted by law), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or created
pursuant to a legally binding commitment of Beneficiaries in existence on the
date of such revocation, (d) no payment by Guarantor, Borrowers, or from any
other source, prior to the date of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrowers or from any
source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which is not, therefore, guarantied hereunder.
4. Performance under this Guaranty. In the event that Borrowers fail to
make any payment of any Guarantied Obligations on or before the due date
thereof, or if Borrowers shall fail to perform, keep, observe, or fulfill any
other obligations referred to in clause (b) of Section 2 hereof in the manner
provided in the Credit Agreement, the Note or the other Loan Documents, as
applicable, Guarantor immediately shall cause such payment to be made or each of
such obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original obligation
of Guarantor, is not merely the creation of a surety relationship, and is an
absolute, unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect without respect to future changes in
conditions, including any change of law or any invalidity or irregularity with
respect to the issuance of the Note. Guarantor agrees that it is directly,
jointly and severally with any other guarantor of the Guarantied Obligations,
liable to Beneficiaries, that the obligations of Guarantor hereunder are
4
independent of the obligations of Borrowers or any other guarantor, and
that a separate action may be brought against Guarantor, whether such action is
brought against Borrowers or any other guarantor whether Borrowers or any such
other guarantor is joined in such action. Guarantor agrees that its liability
hereunder shall be immediate and shall not be contingent upon the exercise or
enforcement by Beneficiaries of whatever remedies they may have against
Borrowers or any other guarantor, or the enforcement of any lien or realization
upon any security Beneficiaries may at any time possess. Guarantor agrees that
any release which may be given by Beneficiaries to Borrowers or any other
guarantor shall not release Guarantor. Guarantor consents and agrees that
Beneficiaries shall be under no obligation to marshal any property or assets of
Borrowers or any other guarantor in favor of Guarantor, or against or in payment
of any or all of the Guarantied Obligations.
6. Waivers.
(a) Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice
of any Borrowings, advances, loans or other financial accommodations made or
extended under the Credit Agreement, or the creation or existence of any
Guarantied Obligations; (iii) notice of the amount of the Guarantied
Obligations, subject, however, to Guarantor's right to make inquiry of Agent
Bank to ascertain the amount of the Guarantied Obligations at any reasonable
time; (iv) notice of any adverse change in the financial condition of Borrowers
or of any other fact that might increase Guarantor's risk hereunder; (v) notice
of presentment for payment, demand, protest, and notice thereof as to the Note
or any other instrument; (vi) notice of any Default or Event of Default under
the Credit Agreement; and (vii) all other notices (except if such notice is
specifically required to be given to Guarantor under this Guaranty or any other
Loan Document to which Guarantor is party) and demands to which Guarantor might
otherwise be entitled.
(b) To the fullest extent permitted by applicable law, Guarantor waives the
right by statute or otherwise to require Beneficiaries to institute suit against
Borrowers or to exhaust any rights and remedies which Beneficiaries have or may
have against Borrowers. In this regard, Guarantor agrees that it is bound to the
payment of each and all Guarantied Obligations, whether now existing or
hereafter accruing, as fully as if such Guarantied Obligations were directly
owing to Beneficiaries by Guarantor. Guarantor further waives any defense
5
arising by reason of any disability or other defense (other than the
defense that the Guarantied Obligations shall have been fully and finally
performed and indefeasibly paid) of Borrowers or by reason of the cessation from
any cause whatsoever of the liability of Borrowers in respect thereof.
(c) To the maximum extent permitted by law, Guarantor hereby waives: (i)
any rights to assert against Beneficiaries any defense (legal or equitable),
set-off, counterclaim, or claim which Guarantor may now or at any time hereafter
have against Borrowers or any other party liable to Beneficiaries; (ii) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any defense arising by reason of any claim or defense
based upon an election of remedies by Beneficiaries; (iv) the benefit of any
statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor's liability hereunder; and (v) any defense or benefit
that may be derived from or afforded by law which limits the liability of or
exonerates guaranties or sureties including, without limitation, the benefits of
Nevada Revised Statutes xx.xx. 40.430 - 40.459, 40.475 and 40.485 as permitted
by Nevada Revised Statutes ss. 40.495 (1989).
(d) Guarantor agrees that if all or a portion of the Indebtedness or this
Guaranty is at any time secured by a deed of trust or mortgage covering
interests in real property, Beneficiaries, in their sole discretion, without
notice or demand and without affecting the liability of Guarantor under this
Guaranty, may foreclose (pursuant to the terms of the Credit Agreement or
otherwise) the deed of trust or mortgage and the interests in real property
secured thereby by non-judicial sale. Guarantor understands that the exercise of
Beneficiaries of certain rights and remedies contained in the Credit Agreement
and any such deed of trust or mortgage may affect or eliminate Guarantor's right
of subrogation against Borrowers and that Guarantor may therefore incur a
partially or totally non-reimbursable liability hereunder. Nevertheless,
Guarantor hereby authorizes and empowers Beneficiaries to exercise, in their
sole discretion, any rights and remedies, or any combination thereof, which may
then be available, since it is the intent and purpose of Guarantor that the
6
obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances. Notwithstanding any foreclosure of the lien of
any deed of trust or security agreement with respect to any or all of any real
or personal property secured thereby, whether by the exercise of the power of
sale contained therein, by an action for judicial foreclosure or by an
acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound under
this Guaranty including its obligation to pay any deficiency following a
non-judicial foreclosure.
(e) Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against the Borrowers that arises
hereunder and/or from the performance by Guarantor hereunder including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Beneficiaries against the Borrowers or any security which
Beneficiaries now have or hereafter acquire, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise.
7. Releases. Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Beneficiaries may, by action or inaction, compromise or settle,
extend the period of duration or the time for the payment, or discharge the
performance of, or may refuse to, or otherwise not enforce, or may, by action or
inaction, release all or any one or more parties to, any one or more of the
Credit Agreement, the Note, or any of the other Loan Documents or may grant
other indulgences to Borrowers in respect thereof, or may amend or modify in any
manner and at any time (or from time to time) any one or more of the Credit
Agreement, the Note, or any of the other Loan Documents, or may, by action or
inaction, release or substitute any other guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guarantied Obligations (including the Collateral) or any
other guaranty of the Guarantied Obligations, or any portion thereof.
8. No Election. Beneficiaries shall have the right to seek recourse against
Guarantor to the fullest extent provided for herein and no election by
Beneficiaries to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of Beneficiaries' right
7
to proceed in any other form of action or proceeding or against other
parties unless Beneficiaries have expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by Beneficiaries under any document or instrument evidencing the
Guarantied Obligations shall serve to diminish the liability of Guarantor under
this Guaranty except to the extent that Beneficiaries finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be considered
indefeasibly paid for purposes of this Guaranty unless and until all payments to
Beneficiaries are no longer subject to any right on the part of any person
whomsoever, including Borrowers, Borrowers as debtors in possession, or any
trustee (whether appointed under the Bankruptcy Code or otherwise) of Borrowers'
assets to invalidate or set aside such payments or to seek to recoup the amount
of such payments or any portion thereof, or to declare same to be fraudulent or
preferential. In the event that, for any reason, all or any portion of such
payments to Beneficiaries is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, the obligation or part thereof intended
to be satisfied thereby shall be revived and continued in full force and effect
as if said payment or payments had not been made and Guarantor shall be liable
for the full amount Beneficiaries are required to repay plus any and all costs
and expenses (including attorneys' fees) paid by Beneficiaries in connection
therewith.
10. Financial Condition of Borrowers and Guarantor.
a. Guarantor represents and warrants to Beneficiaries that it is currently
informed of the financial condition of Borrowers and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of nonpayment
of the Guarantied Obligations. Guarantor further represents and warrants to
Beneficiaries that it has read and understands the terms and conditions of the
Credit Agreement, the Note and the other Loan Documents. Guarantor hereby
covenants that it will continue to keep itself informed of Borrowers' financial
condition, the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the
Guarantied Obligations.
8
b. Guarantor shall deliver to Agent Bank, with sufficient copies thereof
for each of the Lenders, promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
that shall have been sent to the stockholders of Guarantor, and copies of all
annual, regular, periodic and special reports and registration statements which
Guarantor shall have filed or be required to file with the Securities and
Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of
1934.
11. Intentionally omitted.
12. Payments; Application. All payments to be made hereunder by Guarantor
shall be made in lawful money of the United States of America at the time of
payment, shall be made in immediately available funds, and shall be made without
deduction (whether for taxes or otherwise) or offset. All payments made by
Guarantor hereunder shall be applied as follows: first, to all reasonable costs
and expenses (including attorneys' fees) incurred by Beneficiaries in enforcing
this Guaranty or in collecting the Guarantied Obligations; second, to all
accrued and unpaid interest, premium, if any, and fees owing to Beneficiaries
constituting Guarantied Obligations; and third, to the balance of the Guarantied
Obligations.
13. Guarantor agrees to pay Beneficiaries' reasonable out-of-pocket costs
and expenses, including, but not limited to, legal fees and disbursements,
incurred in any effort (which shall include those incurred in investigations of
and advising on matters relating to the Beneficiaries' rights and remedies) to
collect or enforce any of sums owing under this Guaranty whether or not any
lawsuit is filed. Until paid to the Beneficiaries' such sums will bear interest
at the Default Rate set forth in the Credit Agreement.
14. Costs to Prevailing Party. If any action or proceeding is brought by
any party against any other party under this Guaranty, the prevailing party
shall be entitled to recover such costs and attorney's fees as the court in such
action or proceeding may adjudge reasonable.
15. Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, sent by telefacsimile, telexed, or sent by courier
service or United States mail and shall be deemed to have been given when
9
delivered in person or by courier service, upon receipt of a telefacsimile
or telex or five (5) Banking Business Days after deposit in the United States
mail (registered or certified, with postage prepaid and properly addressed). For
the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 15) shall be as set
forth below, or, as to each party, at such other address as may be designated by
such party in a written notice to all of the other parties:
If to Guarantor: Century Casinos, Inc.,
a Delaware corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Teufelberger
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Parcel, Mauro, Xxxxxx &
Xxxxxxxxx, P.C.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
If to Beneficiaries
c/o Agent Bank: Xxxxx Fargo Bank,
National Association
Gaming Division
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, V.P.
With a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Henderson & Xxxxxx
000 Xxxxxxx Xxx, Xxxxx X
Xxxx, XX 00000
16. Cumulative Remedies. No remedy under this Guaranty, under the Credit
Agreement, the Note, or any Loan Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Guaranty, under the Credit
Agreement, the Note, or any other Loan Document, and those provided by law. No
delay or omission by Beneficiaries to exercise any right under this Guaranty
shall impair any such right nor be construed to be a waiver thereof.
10
No failure on the part of Beneficiaries to exercise, and no delay in
exercising, any right under this Guaranty shall operate as a waiver thereof; nor
shall any single or partial exercise of any right under this Guaranty preclude
any other or further exercise thereof or the exercise of any other right.
17. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
18. Entire Agreement; Amendments. This Guaranty, together with the Credit
Agreement, the Payment Subordination Agreement and other Loan Documents to which
Guarantor is a party, constitute the entire agreement between Guarantor and
Beneficiaries pertaining to the subject matter contained herein. This Guaranty
may not be altered, amended, or modified, nor may any provisions hereof be
waived or noncompliance therewith consented to, except by means of a writing
executed by Guarantor and Beneficiaries. Any such alteration, amendment,
modification, waiver, or consent shall be effective only to the extent specified
therein and for the specific purpose for which given. No course of dealing and
no delay or waiver of any right or default under this Guaranty shall be deemed a
waiver of any other, similar or dissimilar, right or default or otherwise
prejudice the rights and remedies hereunder.
19. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of the successors
and assigns of Beneficiaries; provided, however, Guarantor shall not assign this
Guaranty or delegate any of its duties hereunder without Beneficiaries' prior
written consent and any unconsented to assignment shall be absolutely void. In
the event of any assignment or other transfer of rights by Beneficiaries, the
rights and benefits herein conferred upon Beneficiaries shall automatically
extend to and be vested in such assignee or other transferee.
20. Choice of Law and Venue; Service of Process.
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF GUARANTOR AND BENEFICIARIES, SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEVADA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL
11
PROCEEDINGS BROUGHT AGAINST GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEVADA, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, GUARANTOR ACCEPTS, FOR
ITSELF AND IN CONNECTION WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY
FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
21. Arbitration.
a. Upon the request of any party, whether made before or after the
institution of any legal proceeding, any action, dispute, claim or controversy
of any kind (e.g., whether in contract or in tort, statutory or common law,
legal or equitable) ("Dispute") now existing or hereafter arising between the
parties in any way arising out of, pertaining to or in connection with the
Credit Agreement, Loan Documents or any related agreements, documents, or
instruments (collectively the "Documents"), may, by summary proceedings (e.g., a
plea in abatement or motion to stay further proceedings), bring an action in
court to compel arbitration of any Dispute.
b. All Disputes between the parties shall be resolved by binding
arbitration governed by the Commercial Arbitration Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction.
c. No provision of, nor the exercise of any rights under this arbitration
clause shall limit the rights of any party, and the parties shall have the right
during any Dispute, to seek, use and employ ancillary or preliminary remedies,
judicial or otherwise, for the purposes of realizing upon, preserving,
protecting or foreclosing upon any property, real or personal, which is involved
in a Dispute, or which is subject to, or described in, the Documents, including,
without limitation, rights and remedies relating to: (i) foreclosing against any
real or personal property collateral or other security by the exercise of a
power of sale under the Security Documentation or other security agreement or
instrument, or applicable law, (ii) exercising self-help remedies (including
setoff rights) or (iii) obtaining provisional or ancillary remedies such as
injunctive relief, sequestration, attachment, garnishment or the appointment of
a receiver from a court having jurisdiction before, during or after the pendency
12
of any arbitration. The institution and maintenance of an action for judicial
relief or pursuit of provisional or ancillary remedies or exercise of self-help
remedies shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the Dispute to arbitration nor render inapplicable the
compulsory arbitration provision hereof.
22. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
AND EACH OF THE BENEFICIARIES EACH MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS GUARANTY, OR IN ANY WAY CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND BENEFICIARIES WITH
RESPECT TO THIS GUARANTY, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR AND EACH OF THE BENEFICIARIES EACH MUTUALLY HEREBY AGREE THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A
COURT TRIAL WITHOUT A JURY AND THAT THE DEFENDING PARTY MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE
OF THE CONSENT OF THE COMPLAINING PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty as of the day and year first written above.
CENTURY CASINOS, INC.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
13
EXHIBIT C
FORM OF
NOTICE OF BORROWING
TO: XXXXX FARGO BANK, National Association, in its capacity as Agent Bank
under that certain Credit Agreement, dated as of March 31, 1997 (as
amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among WMCK VENTURE CORP., a Delaware
corporation, CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado
corporation and WMCK ACQUISITION CORP., a Delaware corporation
(collectively the "Borrowers"), the Lenders therein named (each,
together with their respective successors and assigns, individually
being referred to as a "Lender" and collectively as the "Lenders") and
XXXXX FARGO BANK, National Association, as administrative and
collateral agent for the Lenders (herein, in such capacity, called the
"Agent Bank" and, together with the Lenders, collectively referred to
as the "Banks"). Capitalized terms used herein without definition
shall have the meanings attributed to them in Section 1.01 of the
Credit Agreement.
Pursuant to Section 2.03(a) of the Credit Agreement, this Notice of
Borrowing represents Borrowers' request for a Borrowing to be advanced on
_____________, 19___ (the "Funding Date") from the Lenders (each to advance in
proportion to their respective Syndication Interests) in the aggregate principal
amount of ________________________________________. Proceeds of such Borrowing
are to be disbursed on the Funding Date in immediately available funds to the
Designated Deposit Account at Agent Bank's Main Branch at __________________,
_______, Nevada, Account No. _________________.
Borrowers hereby certify that (i) the representations and warranties
contained in Article IV of the Credit Agreement, in each of the Loan Documents
and in the Environmental Certificate (other than representations and warranties
which expressly speak only as of a different date, which shall be true and
correct in all material respects as of such date), shall be true and correct in
all material respects on and as of the Funding Date as though made on and as of
the Funding Date, except to the extent that such representations and warranties
are not true and correct as a result of a change which is permitted by the
Credit Agreement or by any other Loan Document or which has been otherwise
consented to by Agent Bank; (ii) no Default or Event of Default has occurred and
is continuing under the Credit Agreement or any other Loan Document or will
result from the making of the requested Borrowing; (iii) Borrowers have and
shall have satisfied all conditions precedent under Article III B of the Credit
Agreement required to be performed by them on or before the Funding Date (unless
otherwise waived pursuant to the terms of the Credit Agreement); (iv) since the
date of the most recent audited financial statements referred to in Sections
3.19 and 5.08(b) of the Credit Agreement, no Material Adverse Change shall have
occurred; and (v) the aggregate of all Borrowings does not (and after giving
effect to the requested Borrowing, will not) exceed the Maximum Availability
then in effect.
Borrowers further certify that as of the Funding Date, without regard to
the requested Borrowing:
A. The Maximum Permitted Balance is $__________
B. The Funded Outstandings are $__________
C. The Maximum Availability (A minus B) is $__________
The Borrowers have caused this Notice of Borrowing to be executed and
delivered, and the certification and warranties contained herein to be made, by
its Authorized Officer this ____ day of _____________, 199__.
WMCK VENTURE CORP., a
Delaware corporation,
CENTURY CASINOS CRIPPLE
CREEK, INC., a Colorado
corporation and WMCK
ACQUISITION CORP., a
Delaware corporation
Name:______________________
Title: Authorized Officer
Print
Name:______________________
- 2 -
EXHIBIT D
AUTHORIZED OFFICER'S CERTIFICATE
OF
WMCK VENTURE CORP.,
A DELAWARE CORPORATION,
CENTURY CASINOS CRIPPLE CREEK, INC.,
A COLORADO CORPORATION AND
WMCK ACQUISITION CORP.,
A DELAWARE CORPORATION
The undersigned hereby certify that the following persons currently have
been authorized to act on behalf of WMCK VENTURE CORP., a Delaware corporation,
CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado corporation and WMCK ACQUISITION
CORP., a Delaware corporation (collectively the "Borrowers"), holding the
positions indicated next to their names, that the signatures appearing opposite
their names below are true and genuine signatures of such persons, and that each
of such persons shall be deemed an "Authorized Officer" as defined in and for
the purposes used in connection with the Credit Agreement (as may be amended or
modified from time to time, the "Credit Agreement"), dated as of the date
hereof, executed by and among the Borrowers, the Lenders therein named (each,
together with their respective successors and assigns, individually being
referred to as a "Lender" and collectively as the "Lenders") and XXXXX FARGO
BANK, National Association, as administrative and collateral agent for the
Lenders (herein, in such capacity, called the "Agent Bank" and, together with
the Lenders, collectively referred to as the "Banks"), and such Authorized
Officers are authorized to deliver on behalf of the Borrowers the Notices of
Borrowings, Compliance Certificates and all other notices, requests, reports,
consents, certifications and authorizations on behalf of the Borrowers under the
Credit Agreement, and have been duly authorized by each of the Borrowers as
"Authorized Officers" for all purposes under the Credit Agreement and each
related Loan Document.
All capitalized terms used but not otherwise defined in this Certificate
shall have the same meanings as set forth in the Credit Agreement.
POSITION
IN EACH OF
NAME BORROWERS SIGNATURE
--------------------------------------------------------------------------------
Xxxxxxx Teufelberger CFO*/Secretary /s/Xxxxxxx Teufelberger
Xxxxx X. Xxxxxx President /s/Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxx CFO**/Treasurer /s/Xxxxx Xxxxxxxxx
*CFO of Century Casinos Cripple Creek, Inc. and WMCK Acquisition Corp only.
**CFO and Treasurer of WMCK Venture Corp only.
IN WITNESS WHEREOF, the undersigned secretaries of each of the Borrowers
have executed the foregoing Certificate on behalf of Borrowers as of the 31
day of March, 1997.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
CENTURY CASINOS CRIPPLE
CREEK, INC.,
a Colorado corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
- 2 -
EXHIBIT E
CLOSING CERTIFICATE
TO: XXXXX FARGO BANK, National Association, in its capacity as Agent Bank
under that certain Credit Agreement, dated as of March 31, 1997 (as
amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among WMCK VENTURE CORP., a Delaware
corporation, CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado
corporation and WMCK ACQUISITION CORP., a Delaware corporation
(collectively the "Borrowers"), the Lenders therein named (each,
together with their respective successors and assigns, individually
being referred to as a "Lender" and collectively as the "Lenders") and
XXXXX FARGO BANK, National Association, as administrative and
collateral agent for the Lenders (herein, in such capacity, called the
"Agent Bank" and, together with the Lenders, collectively referred to
as the "Banks"). Capitalized terms used herein without definition
shall have the meanings attributed to them in Section 1.01 of the
Credit Agreement.
THE UNDERSIGNED, as Authorized Officers of Borrowers, do hereby make the
following certifications effective as of the Closing Date pursuant to Article
III of the Credit Agreement:
(a) the representations and warranties contained in Article IV of the
Credit Agreement and contained in each of the other Loan Documents are true and
correct on and as of the Closing Date in all material respects as though such
representations and warranties had been made on and as of the Closing Date;
(b) Since the date of the most recent financial statements referred to in
Sections 3.19 and 5.08(b) of the Credit Agreement, no Material Adverse Change
has occurred and no event or circumstance which could reasonably be expected to
result in a Material Adverse Change or Material Adverse Effect has occurred;
(c) no event (i) has occurred and is continuing or (ii) would occur as a
result of any Borrowing contemplated under the Credit Agreement, or (iii) would
result from the making thereof, which (in the case of (i), (ii) or (iii) above)
constitutes a Default or Event of Default under the terms of the Credit
Agreement;
(d) Borrowers have, as of the Closing Date, performed and complied with all
agreements and conditions that are contained in the Credit Agreement and that
the Credit Agreement requires Borrowers to perform and comply with prior to or
as of the Closing Date;
(e) The Credit Agreement, the Note and the other Loan Documents have been
duly authorized by all necessary action of each Borrower's Board of Directors
and have been executed and delivered on behalf of each Borrower by a duly
authorized representative thereof; and
(f) Concurrently herewith, Borrowers have delivered to Agent Bank a true
and correct copy of the articles of incorporation and bylaws of each of the
Borrowers, together with all amendments thereto adopted through the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as of the 31st day of
March, 1997.
WMCK VENTURE CORP.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
CENTURY CASINOS CRIPPLE
CREEK, INC., a Colorado
corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
- 2 -
EXHIBIT F
COMPLIANCE CERTIFICATE
TO: XXXXX FARGO BANK, National Association,
as Agent Bank
Reference is made to that certain Credit Agreement, dated as of March 31,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among WMCK VENTURE CORP., a Delaware corporation,
CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado corporation and WMCK ACQUISITION
CORP., a Delaware corporation (collectively the "Borrowers"), CENTURY CASINOS,
INC., a Delaware corporation (the "Guarantor"), the Lenders therein named (each,
together with their respective successors and assigns, individually being
referred to as a "Lender" and collectively as the "Lenders"), and XXXXX FARGO
BANK, National Association, as administrative and collateral agent for the
Lenders (herein, in such capacity, called the "Agent Bank" and, together with
the Lenders, collectively referred to as the "Banks"). Terms defined in the
Credit Agreement and not otherwise defined in this Compliance Certificate
("Certificate") shall have the meanings defined and described in the Credit
Agreement. This Certificate is delivered in accordance with Section 5.08(b) and
(e) of the Credit Agreement.
The period under review is the Fiscal Quarter ended [Insert Date] together
with, unless otherwise indicated, the three (3) immediately preceding Fiscal
Quarters on a rolling four (4) Fiscal Quarter basis.
I.
COMPLIANCE WITH AFFIRMATIVE COVENANTS
A. FF&E (Section 5.01): Amount of FF&E
sold or disposed and not replaced
by FF&E of equivalent value and
utility. $______________
B. Compliance with Payment
Subordination Agreement (Section
5.03): Report the amount of any
payments made on the Subordinated
Debt:
Interest $______________
Principal $______________
C. Liens Filed (Section 5.04): Report
any liens filed against the Real
Property and the amount claimed in
such liens. Describe actions being
taken with respect thereto. _______________
D. Other Real Property (Section 5.06):
-------------------
Other than the Real Property
presently encumbered by the
Security Documentation, attach a
legal description and describe the
use of any other real property or
rights to the use of real property
which is used in any material
manner in connection with the
Casino Facilities. Attach evidence
that such real property or rights
to the use of such real property
has been added as Collateral under
the Security Documentation. ______________
E. Permitted Encumbrances (Section
----------------------
5.11): Describe any mortgage, deed
of trust, pledge, lien, security
interest, encumbrance, attachment,
levy, distraint or other judicial
process or burden affecting the
Collateral other than the Permitted
Encumbrances. Describe any matters
being contested in the manner
described in Sections 5.04 and 5.10
of the Credit Agreement. ______________
F. Suits or Actions (Section 5.16):
Describe on a separate sheet any
matters requiring advice to Banks
under Section 5.16. ______________
G. Notice of Hazardous Materials
(Section 5.20): State whether or
not to your knowledge there are any
matters of which Banks should be
advised under Section 5.20. If so,
attach a detailed summary of such
matter(s). ______________
- 2 -
H. Compliance with Golden Horseshoe
--------------------------------
Lease (Section 5.23): Describe all
-----
defaults, if any, which occurred
during the period under review
under the Golden Horseshoe Lease.
Describe any modifications or
amendments to the Golden Horseshoe
Lease. State whether or not such
modifications or amendments have
been consented to by Agent Bank as
required under Section 5.23 of the
Credit Agreement. ______________
I. Payment Restriction on BGP Note
(Section 5.25): Report the amount of any payments made on the BGP Note:
Interest $_____________
Principal (nonpermitted) $_____________
II.
FINANCIAL COVENANTS
A. Minimum Annual EBITDA (Section 6.01):
To be calculated with respect to the Borrower Consolidation on a
cumulative basis with respect to the Fiscal Quarter under review and
the most recently ended three (3) preceding Fiscal Quarters on a four
(4) Fiscal Quarter basis commencing with the first Fiscal Quarter
beginning April 1, 1997
a. Net Income $____________
b. Plus Interest Expense (accrued
and capitalized) to the extent
deducted in the determination
of Net Income + $____________
- 3 -
c. Plus the aggregate amount of
Federal and state taxes on or
measured by income (whether or
not payable during the period
under review) to the extent
deducted in the determination
of Net Income + $____________
d. Plus depreciation, amortization
and all other non-cash expenses
for the period under review to
the extent deducted in the
determination of Net Income
+ $____________
e. TOTAL ANNUAL EBITDA $____________
(a + b + c + d)
Minimum Annual EBITDA Required $5,000,000.00
B. Minimum Capital Expenditures
(Section 6.02): To be reported with
respect to the Borrower
Consolidation for each Fiscal Year,
commencing with the Fiscal Year
beginning on January 1, 1997:
a. With respect to the Casino
Facilities set forth the
aggregate amount of Capital
Expenditures during the Fiscal
Year under review. $____________
b. Set forth that portion of the
aggregate amount of Capital
Expenditures which were Non-
Financed Capital Expenditures $____________
Minimum aggregate Capital
Expenditures during period
beginning April 1, 1997 through $ 187,500.00
December 31, 1997 are
Minimum aggregate Capital
Expenditures on and after
January 1, 1998 are $ 250,000.00
Maximum Non-Financed Capital
Expenditures are $ 500,000.00
- 4 -
C. TFCC Ratio (Section 6.03): To be
----------
calculated with respect to the
Borrower Consolidation, commencing
with the Fiscal Quarter beginning
July 1, 1997, on a cumulative basis
with respect to each Fiscal Quarter
and the most recently ended three
(3) preceding Fiscal Quarters on a
rolling four (4) Fiscal Quarter
basis, unless otherwise noted:
Numerator: $____________
(a) Net profit after cash taxes $____________
(b) Plus Interest Expense (accrued
and capitalized) + $____________
(c) Plus depreciation and
amortization + $____________
(d) Minus Dividends and
Distributions paid - $____________
(e) Minus Non-Financed Capital
Expenditures incurred during
the period under review - $____________
(f) TOTAL NUMERATOR
(a + b + c - d - e) $____________
Denominator: /
(g) Interest Expense actually paid $____________
(h) Plus current portion of
scheduled principal payments on
long term debt and Capitalized
Lease Liabilities + $____________
(i) Plus actual interest and
principal paid (without
duplication) on Subordinated
Debt + $____________
(j) TOTAL DENOMINATOR
(g + h + i) $____________
TFCC Ratio (f / j) :1
Minimum TFCC Ratio shall be no less
than 1.20 to 1.00
- 5 -
D. No Transfer of Ownership (Section
6.04): On a separate sheet describe
in detail any transfers or
hypothecations of Guarantor
ownership interest in WMCKVC or
WMCKVC ownership interests in CCCC
or WMCKAC not permitted under
Section 6.04 ____________
E. Total Indebtedness (Section 6.05)
With respect to the Borrower
Consolidation:
a. Set forth the aggregate amount
of outstanding Secured Interest
Rate Xxxxxx
$_____________
Maximum Permitted $6,000,000.00
b. Set forth the aggregate amount
of secured purchase money
Indebtedness and Capital Lease
Liabilities $_____________
Maximum Permitted $ 250,000.00
c. Set forth aggregate amount of
Indebtedness to Guarantor or
any Subsidiary or Affiliate of
Guarantor which is not a member
of the Borrower Consolidation $_____________
Maximum Permitted $ 100,000.00
d. Set forth the cumulative
aggregate of all Subordinated
Debt
$_____________
Did Agent Bank give prior
written consent to the
incurrence of all Subordinated
Debt set forth above yes/no
F. Contingent Liabilities (Section
6.06): Describe any Contingent
Liabilities incurred by Borrowers
which are not permitted by
Section 6.06 ______________
- 6 -
G. Other Liens (Section 6.07): On a
separate sheet describe in detail
any and all liens, encumbrances
and/or negative pledges not
permitted under Section 6.07 ______________
H. No Merger (Section 6.08): On a
separate sheet describe any and all
mergers, consolidations and/or asset
sales not permitted under Section
6.08 ______________
I. Restriction on Investments (Section
6.09): Describe any Investments made
which are not permitted under ______________
Section 6.09
J. Ratio of Guarantor Funded Debt to
Borrower Consolidation EBITDA Ratio
(Section 6.10):
Guarantor FUNDED DEBT
To be calculated with respect to the Guarantor as of the last day of
the Fiscal Quarter set forth above:
a. The daily average during the
last month of the period under
review of both long-term and
current portions (without
duplication) of all interest
bearing Indebtedness and
Capitalized Lease Liabilities $____________
b. Plus the total, as of the last
day of the period under review,
of all Contingent Liabilities
(other than the Guaranty) + $____________
c. TOTAL FUNDED DEBT $____________
(a + b)
Divided (/) by /
Borrower Consolidation EBITDA (enter
Total Annual EBITDA from II A(e)) $____________
Ratio of Guarantor Funded Debt to
Borrower Consolidation EBITDA :1.0
Maximum Permitted: 4.00:1.00
- 7 -
K. ERISA (Section 6.11): Describe on a
separate sheet any matters requiring
advice to Banks under Section 6.11 ______________
L. Margin Regulations (Section 6.12):
------------------
Set forth the amount(s) of and
describe on a separate sheet of
paper any proceeds of a Borrowing
used by any Borrower to purchase or
carry any Margin Stock or to extend
credit to others for the purpose of
purchasing or carrying any Margin
Stock. $_____________
M. No Subsidiaries (Section 6.13): On
a separate sheet, describe any
Subsidiaries created by any Borrower
subsequent to the Closing Date.
State whether or not the creation of
such Subsidiaries has been consented
to by the Agent Bank as required
under Section 6.13 of the Credit yes/no
Agreement.
N. Transactions with Affiliates
(Section 6.14): Describe on a
separate sheet any matters requiring
advice to Banks under Section 6.14. _____________
III.
NONUSAGE FEE CALCULATION
(Section 2.07b): to be calculated with respect to each Fiscal Quarter under
review following the first annual anniversary of the Closing Date:
a. As of the end of such Fiscal
Quarter, the daily average
during such Fiscal Quarter of
the Maximum Permitted Balance $_____________
b. Less daily average during such
Fiscal Quarter of the Funded
Outstandings - $_____________
c. Amount of Nonusage $_____________
(a minus b)
- 8 -
d. Nonusage Percentage .50%
x. Xxxxx Nonusage Fee $_____________
(c times d)
f. Number of days in Fiscal
Quarter under review _____________
g. Nonusage Fee for Fiscal
Quarter under review $_____________
(e / 360 x f)
IV.
PERFORMANCE OF OBLIGATIONS
A review of the activities of the Borrower Consolidation and Guarantor
during the fiscal period covered by the attached financial statements has been
made under my supervision with a view to determining whether during such fiscal
period the Borrower Consolidation and Guarantor performed and observed all of
their obligations under the Loan Documents. Except as described in an attached
document or in an earlier Certificate, to the best of my knowledge, as of the
date of this Certificate there is no Default or Event of Default has occurred or
remains continuing.
V.
NO MATERIAL ADVERSE CHANGE
- 9 -
To the best of my knowledge, except as described in an attached document or
in an earlier Certificate, no Material Adverse Effect has occurred since the
date of the most recent Certificate delivered to the Banks.
DATED this ____ day of _____________, 199__.
BORROWERS:
WMCK Venture Corp., a
Delaware corporation,
Century Casinos Cripple
Creek, Inc., a Colorado
corporation and WMCK
Acquisition Corp., a
Delaware corporation
By________________________
Title: Authorized Officer
Print
Name_______________________
GUARANTOR:
CENTURY CASINOS, INC.,
a Delaware corporation
By_________________________
Name_______________________
Title______________________
- 10 -
EXHIBIT H
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
(Form)
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT ("Assignment") is made as
of the ____________ day of _____________, 199__, by and between
________________________________ (hereinafter referred to as "Assignor"), party
of the first part, and ______________________________(hereinafter referred to as
"Assignee"), party of the second part.
RECITALS:
A. Reference is made to that certain Credit Agreement, dated as of March
31, 1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among WMCK Venture Corp., a Delaware corporation,
Century Casinos Cripple Creek, Inc., a Colorado corporation and WMCK Acquisition
Corp., a Delaware corporation (collectively the "Borrowers"), Century Casinos,
Inc., a Delaware corporation ("Guarantor"), the Lenders therein named (each,
together with their respective successors and assigns, individually being
referred to as a "Lender" and collectively as the "Lenders") and Xxxxx Fargo
Bank, National Association, as administrative and collateral agent for the
Lenders (herein, in such capacity, called the "Agent Bank" and, together with
the Lenders, collectively referred to as the "Banks").
B. In this Assignment, all capitalized words and terms not otherwise
defined herein shall have the respective meanings to be construed herein as
provided in Section 1.01 of the Credit Agreement and any reference to a
provision of the Credit Agreement shall be deemed to incorporate such provision
as a part hereof in the same manner and with the same effect as if the same were
fully set forth herein.
C. As of the date of this Assignment and as of the Effective Date, as
hereinafter defined, but before giving effect to the assignment contemplated
hereby, Assignor is and shall be the owner and holder of a ___________ percent
(____%) Syndication Interest in the Credit Facility.
D. As of the Effective Date, as hereinafter defined, Assignor desires to
assign to Assignee and Assignee desires to assume a ____________ percent (____%)
Syndication Interest in the Credit Facility.
E. This Assignment is made, executed and delivered pursuant to Section
11.10 of the Credit Agreement and shall also constitute notice to Borrowers and
Agent Bank of the assignment and delegation to Assignee of the Syndication
Interest particularly described hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do agree as follows:
1. As of the Effective Date, as hereinafter defined, Assignor does hereby
transfer, convey, set over and assign unto Assignee, without recourse, warranty
or representation other than as set forth in Paragraph 5 hereinbelow (the
"Assigned Interest"), $________________ of the outstanding unpaid balance of the
Credit Facility representing an undivided _______________ percent (_____%)
Syndication Interest in the Credit Facility.
2. From and after the Effective Date, Assignee shall and does hereby assume
and agree to perform all of the promises and covenants of Assignor as to the
Assigned Interest particularly described in Paragraph 1 hereinabove arising or
performable from and after the Effective Date and further agrees to indemnify
and hold Assignor harmless from any and all liabilities, damages, costs or
expenses which Assignor may incur by reason of the failure of Assignee to fund
or perform any obligation of Assignor as to the Assigned Interest assigned
hereunder arising or performable from and after the Effective Date at the time
and in the manner set forth in the Loan Documents, and does further agree to
assume and be bound by each and every term, condition, provision and covenant
contained in the Credit Agreement and each of the Loan Documents, effective as
of the Effective Date, to the same extent and manner as if Assignee had
originally been named in the Credit Agreement as a Lender holding the Assigned
Interest therein and Assignee shall be deemed to be a Lender party to the Credit
Agreement for all purposes thereof.
3. The "Effective Date" as used herein shall mean ___________, 199__,
provided that each of the following conditions precedent have been satisfied on
or before the Effective Date: (a) Assignor and Assignee have executed this
Assignment, (b) Borrowers and Agent Bank have joined in the execution of this
Assignment for the purpose of evidencing their respective acknowledgment and
consent to the assignment by Assignor of the Assigned Interest in favor of
2
Assignee, (c) Assignee has delivered to Assignor ____________________________
Dollars ($________________) in immediately available funds, and (d) Assignee has
delivered to Agent Bank in immediately available funds the Two Thousand Five
Hundred Dollar ($2,500.00) assignment fee in accordance with Section 11.10b of
the Credit Agreement. Interest accrued but remaining unpaid on the portion of
the outstanding principal balance under the Credit Facility which is allocable
to the Assigned Interest assigned hereby and is owing to Assignor as of the
Effective Date shall be prorated to the Effective Date and disbursed by Agent
Bank to Assignor and Assignee, as applicable, from the next payment of accrued
interest under the Note.
4. On the Effective Date, the respective aggregate Syndication Interests in
the Credit Facility shall be as set forth on the Schedule of Lenders'
Proportions in Credit Facility, a copy of which is marked "Schedule 2.01(a)",
affixed hereto and by this reference incorporated herein and made a part hereof,
which shall restate the Schedule of Lenders' Proportions in Credit Facility
attached as Schedule 2.01(a) to the Credit Agreement, and all previous
amendments and restatements thereof, for the purpose of showing the Assigned
Interest as a decrease in Assignor's applicable Syndication Interest and
evidencing Assignee's applicable Syndication Interest in the Credit Facility.
5. Assignor represents and warrants that:
a. (i) it is the owner of the Assigned Interest being assigned and
transferred hereunder free and clear of any liens or other charges of any kind,
(ii) it is duly organized and existing and has the full power and authority to
take, and has taken, all action necessary to execute and deliver this Assignment
and any other documents required or permitted to be executed or delivered by it
in connection with this Assignment and to fulfill its obligations hereunder,
(iii) no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or hereby obtained) for its due
execution, delivery and performance of this Assignment, and apart from any
agreements or undertaking or filings required by the Credit Agreement, no
further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; and (iv) this Assignment has been
duly executed and delivered by it and constitutes its legal, valid and binding
obligations, enforceable against it in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
3
b. Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Loan Documents or any other instrument or document furnished
pursuant thereto. Assignor makes no representation or warranty in connection
with, and assumes no responsibility with respect to, the solvency, financial
condition or statements of the Borrowers or the performance or observance by the
Borrowers of any of their respective obligations under the Credit Agreement, the
Loan Documents or any other instrument or document furnished in connection
therewith.
6. Assignee represents and warrants that:
a. (i) it is duly organized and existing and it has full power and
authority to take, and has taken, all action necessary to execute and deliver
this Assignment and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment, and to fulfill its
obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment; and apart
from any agreements or undertakings or filings required by the Credit Agreement,
no further action by, or notice to, or filing with, any person is required of it
for such execution, delivery or performance; (iii) this Assignment has been
fully executed and delivered by it and constitutes its legal, valid and binding
obligations, enforceable against it in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is eligible
under the Credit Agreement to be an assignee in accordance with the terms
hereof.
b. (i) under applicable law and treaties no tax will be required to be
withheld by Borrowers or any Bank with respect to any payments to be made to the
Assignee under the Credit Agreement, (ii) it agrees to furnish (if it is
organized under the laws of any jurisdiction other than the
4
United States or any State thereof) to the Agent Bank and the Borrowers prior to
the time that the Agent Bank or Borrowers are required to make any payment of
principal, interest or fees hereunder, duplicate executed original of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein the Assignee claims entitlement to the benefits of a tax treaty
that provides for a complete exemption from U.S. federal income withholding tax
on all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto, duly
executed and completed by the Assignee, and (iii) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
7. The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Loan Documents, together with copies of the most recent
financial statements referred to in Section 5.08 of the Credit Agreement, and
such other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Assignment; (b)
agrees that it will, independently and without reliance upon the Assignor, the
Agent Bank or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement; and (c)
appoints and authorizes the Agent Bank to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent Bank by the terms thereof, together with such powers as are
reasonably incidental thereto.
8. Assignee hereby advises Borrowers and Agent Bank of the following
administrative details with respect to the Assigned Interest:
Assignee:
a. Address for notices:
============================
============================
5
b. Telephone:
----------------------------
c. Facsimile:
----------------------------
d. Payment (wire) instructions:
============================
----------------------------
9. Borrowers and Agent Bank join in the execution of this Assignment for
the purpose of evidencing and acknowledging their respective consents to the
transfer by Assignor to Assignee of the Assigned Interest and agree to recognize
Assignee as a Lender under the Credit Agreement and each of the Loan Documents
to the same extent as if Assignee were originally named as a Lender therein as
to the Assigned Interest. Borrowers and Agent Bank further agree that as of the
Effective Date and consummation of each of the items specified in Paragraph 3
hereinabove, Assignor shall be and is hereby fully released and discharged from
all liabilities, responsibilities and obligations with respect to the Assigned
Interest hereby assigned arising or performable on and after the Effective Date.
10. Any interest, commissions, fees and other payments accrued to but
excluding the Effective Date with respect to the Assigned Interest hereby
assigned shall be for the account of Assignor. Any interest, fees and other
payments accrued on and after the Effective Date with respect to the Assigned
Interest hereby assigned shall be for the account of the Assignee. Each of the
Assignor and the Assignee agree that it will hold in trust for the other party
any interest and other amounts which it may receive to which the other party is
entitled pursuant to the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
11. This Assignment may be signed in any number of counterparts, and
signatures to all counterparts thereto, when assembled together, shall
constitute signatures to this entire agreement with the same effect as if all
signatures were on the same document.
6
12. This Assignment shall, in all respects, be governed by the laws of the
State of Nevada and if any action is taken to enforce the terms hereof, such
action shall be commenced and maintained within the State of Nevada.
13. Any amendment or waiver of any provision of this Assignment shall be in
writing and signed by the parties hereto. No failure or delay by either party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof and any waiver of any breach of the provisions of this Assignment
shall be without prejudice to any rights with respect to any other or further
breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Assignment as of the day and year first above written.
ASSIGNOR:
____________________________
By__________________________
Title_______________________
ASSIGNEE:
____________________________
By__________________________
Title_______________________
7
Borrowers and Agent Bank hereby join in the execution of this Assignment
for the purpose of evidencing and acknowledging their respective consent as set
forth in Paragraph 9 above.
DATED as of the ____ day of _______________, 199__.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation,
CENTURY CASINOS CRIPPLE
CREEK, INC., a Colorado
corporation and WMCK
ACQUISITION CORP.,
a Delaware corporation
By_________________________
Name_______________________
Title: Authorized Officer
AGENT BANK:
XXXXX FARGO BANK,
National Association
By_________________________
Name_______________________
Title______________________
8
EXHIBIT I
PAYMENT
SUBORDINATION AGREEMENT
THIS PAYMENT SUBORDINATION AGREEMENT (the "Agreement") is made and entered
into this 31st day of March, 1997, by and among Century Casinos, Inc., a
Delaware corporation (hereinafter referred to as "Subordinator") and delivered
to Xxxxx Fargo Bank, National Association, as administrative and collateral
agent ("Agent Bank") on behalf of itself and each of the Lenders hereinafter
described.
RECITALS:
WHEREAS:
A. As of the date of this Agreement, there is outstanding and owing by WMCK
Venture Corp., a Delaware corporation (the "Company") to Subordinator
indebtedness in the aggregate amount of Six Million One Hundred Ninety-One
Thousand Dollars ($6,191,000.00) (together with the interest thereon, the
"Subordinated Debt") evidenced by that certain unsecured Promissory Note dated
June 27, 1996, as amended by an Assignment, Assumption and Amendment Agreement
dated March 31, 1997 (the "Subordinated Note"), copies of which are marked
"Exhibit A", affixed hereto and by this reference incorporated herein and made a
part hereof.
Now, therefore, in and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Subordinator, the
Subordinator hereby agrees as follows:
1. The Company together with WMCK Acquisition Corp., a Delaware corporation
and Century Casinos Cripple Creek, Inc., a Colorado corporation, as Borrowers,
and Subordinator, as Guarantor, have entered into a Credit Agreement dated as of
March 31, 1997 (as may be amended, modified or supplemented from time to time,
the "Credit Agreement") with the Lenders therein named (each, together with
their respective successors and assigns, individually being referred to as a
"Lender" and collectively as the "Lenders"), and Xxxxx Fargo Bank, National
Association, as administrative and collateral agent for the Lenders (herein, in
such capacity, called the "Agent Bank" and, together with the Lenders,
collectively referred to as the "Banks"), under the terms of which Lenders agree
to establish and fund a reducing revolving credit facility (the "Credit
Facility") in the initial aggregate principal amount of Thirteen Million
Dollars ($13,000,000.00) at any time outstanding, all subject to the terms and
conditions set forth in the Credit Agreement. The Credit Facility is evidenced
by a Revolving Credit Note (the "Bank Note") in the principal sum of Thirteen
Million Dollars ($13,000,000.00) executed by the Company, payable to the order
of Agent Bank on behalf of Lenders.
2. The Subordinated Note may not be transferred or assigned by Subordinator
without the prior written consent of Agent Bank and, unless so transferred or
assigned, shall be owned by Subordinator at all times free and clear of any
lien, pledge, charge, security interest or other encumbrance.
3. So long as any monetary obligation or other obligation or commitment to
advance funds under the Credit Agreement, the Bank Note or any other Loan
Document, as defined in the Credit Agreement (as such obligations may be
amended, modified, restated, renewed, increased or extended, including, without
limitation, post petition interest whether or not allowed in any insolvency
proceedings, and fees, attorneys costs and indemnities under the Loan Documents
(collectively the "Bank Debt") shall remain unpaid or unfunded, in whole or in
part, the Subordinator may not:
(a) Prior to April 1, 1998, demand or receive any payment of principal
whatsoever, directly or indirectly, from the Company or otherwise on the
Subordinated Note at any time; or
(b) Subsequent to April 1, 1998, receive any payment of principal or
interest, directly or indirectly, on the Subordinated Note, if:
(i) a Default or Event of Default, as defined in the Credit Agreement,
shall have occurred and is continuing under any Bank Debt; or
(ii) the making of such payment would create a Default or Event of Default,
as defined in the Credit Agreement; or
c. Pay any interest on the Subordinated Note in advance or prior to the
date such interest is due; or
d. Increase the rate of interest on the Subordinated Note without the prior
written consent of Agent Bank.
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4. The subordination provisions set forth hereinabove are made for the
benefit of Banks and it is understood by Company and by Subordinator that Banks
will take certain actions in reliance upon such subordination provisions. It is
further understood that Banks' reliance upon the referenced subordination
provisions shall not constitute a waiver by Banks of their right to insist upon
strict compliance with all provisions of the Credit Agreement and with all
provisions of the Loan Documents as particularly defined by the Credit
Agreement.
5. (a) In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the Company,
its creditors or its property;
(ii) any proceeding for the liquidation, dissolution or other winding-up of
the Company, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(iii) any assignment by the Company for the benefit of creditors; or
(iv) any other marshalling of the assets of the Company;
all Bank Debt (including any interest thereon accruing after the commencement of
any such proceedings and any other sums or premium due) shall first be paid in
full before any payment or distribution, whether in cash, securities or other
property, shall be made on account of any Subordinated Debt and any payment or
distribution, whether in cash, securities or other property which would
otherwise, but for these subordination provisions, be payable or deliverable in
respect of Subordinated Debt shall be paid or delivered directly to the holders
of Bank Debt until all Bank Debt (including any interest thereon accruing after
the commencement of any such proceedings) shall have been indefeasibly paid in
full.
The Subordinator shall file in any bankruptcy or other proceeding in which
the filing of claims is required by law, all claims which the Subordinator may
have against the Company relating to any Subordinated Debt and will assign to
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the holders of the Bank Debt all rights of the Subordinator thereunder. If
Subordinator does not file any such claim, the holder of the Bank Debt as
attorney-in-fact for Subordinator is hereby authorized to do so in the name of
Subordinator or, in such holder's discretion, to assign the claim to a nominee
and to cause proof of claim to be filed in the name of such holder's nominee.
The foregoing power of attorney is coupled with an interest and cannot be
revoked. The holder of the Bank Debt or its nominee shall have the sole right to
accept or reject any plan proposed in any such proceeding and to take any other
action which a party filing a claim is entitled to do. In all such cases,
whether in administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to the holder of the Bank Debt the amount
payable on such claim and, to the full extent necessary for that purpose, the
Subordinator hereby assigns to the holder of the Bank Debt all of the
Subordinator's rights to any such payments or distributions to which the
Subordinator would otherwise be entitled.
(b) If any payment or distribution of any character or any security,
whether in cash, securities or other property, shall be received by the
Subordinator in contravention of any of the terms hereof and before all Bank
Debt shall have been indefeasibly paid in full, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holder of Bank Debt at the time outstanding
for application to the payment of all Bank Debt remaining unpaid, to the extent
necessary to pay all such Bank Debt in full. In the event of the failure of the
Subordinator to endorse or assign any such payment, distribution or security,
each holder of Bank Debt is hereby irrevocably authorized to endorse or assign
the same.
(c) The Bank Debt shall not be deemed to have been paid in full unless the
holder thereof shall have indefeasibly received cash in lawful currency of the
United States of America equal to the amount of Bank Debt then outstanding.
(d) The Subordinator will take such action (including, without limitation,
the execution and filing of a financing statement with respect to this Agreement
and including the execution, verification, delivery and filing of proofs of
claim, consents, assignments or other instructions which the holder of Bank Debt
may require in order to prove and realize upon any rights or claims pertaining
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to Subordinated Debt and to effectuate the full benefit of the
subordination contained herein) as may, in the opinion of counsel designated by
the Agent Bank, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
(e) The Subordinator understands and acknowledges by its execution hereof
that the actions of the Lenders in connection with the Bank Debt are being or
have been made in reliance upon the absolute subordination of the Subordinated
Debt to Bank Debt as set forth herein.
6. Subject to the terms of the Credit Agreement:
(a) This Agreement shall continue in effect so long as any Bank Debt shall
remain unpaid and no action that the holder of the Bank Debt or the Company,
with or without the written consent of the holder of the Bank Debt, may take or
refrain from taking with respect to any Bank Debt, any instrument representing
the same, any Collateral therefor, or any agreement or agreements, including
guaranties, in connection therewith, shall affect this Agreement or the
obligations of the Subordinator hereunder. So long as this Agreement remains in
effect, Subordinator shall deliver to Agent Bank the true, genuine and duly
executed originals of all promissory notes evidencing the Subordinated Debt.
Upon full and indefeasible payment of the Bank Debt and termination of the
Company's right to borrow advances under the Credit Agreement, Agent Bank shall
return to Subordinator all promissory notes held by it evidencing the
Subordinated Debt.
(b) All rights and interests of the Banks hereunder, and all agreements and
obligations of the Subordinator and the Company under this Agreement, shall
remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of the Loan Agreement, the Bank
Note or any other Loan Document, or any agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Bank Debt, or any other amendment, modification,
revision, restatement, extension or waiver of or any consent to departure from
the Credit Agreement, the Bank Note or any other Loan Document;
- 5 -
(iii) any taking and holding of Collateral or other security or additional
guarantees for all or any of the Bank Debt; or any amendment, alteration,
exchange, substitution, restatement, transfer, enforcement, waiver,
subordination, termination or release of any Collateral or such guarantees, or
any non- perfection of any Collateral, or any consent to departure from any such
guaranty;
(iv) any manner of application of Collateral or proceeds thereof, to all or
any of the Bank Debt, or the manner of sale of any Collateral or other security;
(v) any consent by any of the Banks or any other Person to the change,
restructure or termination of the corporate structure or existence of the
Company or the Subordinator, or any Subsidiary thereof and any corresponding
restructure of the Bank Debt, or any other restructure or refinancing of the
Bank Debt or any portion thereof;
(vi) any modification, compounding, compromise, settlement, release by the
Banks or any of them or any other Person (or by operation of law or otherwise),
collection or other liquidation of the Bank Debt or of the Collateral or other
security in whole or in part, and any refusal of payment to any Bank in whole or
in part, from any obligor or guarantor in connection with any of the Bank Debt,
whether or not with notice to, or further assent by, or any reservation of
rights against the Subordinator; or
(vii) any other circumstance (including, but not limited to, any statute of
limitations) which might otherwise constitute a defense available to, or a
discharge of the Company or the Subordinator.
Without limiting the generality of the foregoing, the Subordinator hereby
consents to and agrees that the rights of each Bank hereunder, and the
enforceability hereof, shall not be affected by any release of any Collateral or
security from the liens and security interests created by any of the Loan
Documents or any other agreement whether for purposes of sales or other
- 6 -
dispositions of assets or for any other purpose. This Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Bank Debt is rescinded or must otherwise be returned
by any Bank upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
(c) The Subordinator waives the right to require the Banks to proceed
against the Company or any other person liable on the Bank Debt, to proceed
against or exhaust any security held from the Company or any other person, or to
pursue any other remedy in the Banks' power whatsoever and the Subordinator
waives the right to have the property of the Company first applied to the
discharge of the Bank Debt. The Banks may, at their election, exercise any right
or remedy they may have against the Company or any security held by the Banks,
including, without limitation, the right to foreclosure upon any such security
by one or more judicial or nonjudicial sales, without affecting or impairing in
any way the obligations of the Subordinator hereunder, except to the extent the
Bank Debt has been paid, and the Subordinator waives any defense arising out of
the absence, impairment or loss of any right of reimbursement, contribution or
subrogation or any other right or remedy of the Subordinator against the Company
or any such security, whether resulting from such election by the Banks or
otherwise. The Subordinator waives any defense arising by reason of any
disability or other defense of the Company or by reason of the cessation from
any cause whatsoever (including, without limitation, any intervention or
omission by the Banks) of the liability either in whole or in part, of the
Company to the Banks for the Bank Debt.
7. The Subordinator hereby agrees to be responsible for and to pay all
costs and expenses, including, without limitation, attorneys' fees and costs and
accountants' fees, incurred by the holder of the Bank Debt in connection with
the enforcement by the holder of the Bank Debt of its rights or the protection
of the holder of the Bank Debt of its interests under this Agreement, whether
incurred pre-trial, at trial or on appeal.
8. Time shall be of the essence of this Agreement.
9. This Agreement shall be governed by and construed in accordance with the
law of the State of Nevada. The parties hereto further agree that, subject to
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the Arbitration provisions set forth below in paragraph 10, the full and
exclusive forum for the determination of any action relating to this Agreement
shall be either an appropriate Court of the State of Nevada or the United States
District Court or United States Bankruptcy Court for the District of Nevada.
10. Arbitration.
(a) Upon the request of any party, whether made before or after the
institution of any legal proceeding, any action, dispute, claim or controversy
of any kind (e.g., whether in contract or in tort, statutory or common law,
legal or equitable) ("Dispute") now existing or hereafter arising between the
parties in any way arising out of, pertaining to or in connection with this
Agreement, the Credit Agreement, Bank Note, Loan Documents or any related
agreements, documents, or instruments (collectively the "Documents"), may, by
summary proceedings (e.g., a plea in abatement or motion to stay further
proceedings), bring an action in court to compel arbitration of any Dispute.
(b) All Disputes between the parties shall be resolved by binding
arbitration governed by the Commercial Arbitration Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction.
(c) No provision of, nor the exercise of any rights under this arbitration
clause shall limit the rights of any party, and the parties shall have the right
during any Dispute, to seek, use and employ ancillary or preliminary remedies,
judicial or otherwise, for the purposes of realizing upon, preserving,
protecting or foreclosing upon any property, real or personal, which is involved
in a Dispute, or which is subject to, or described in, the Documents, including,
without limitation, rights and remedies relating to: (i) foreclosing against any
real or personal property collateral or other security by the exercise of a
power of sale under the Documents or other security agreement or instrument, or
applicable law, (ii) exercising self-help remedies (including setoff rights) or
(iii) obtaining provisional or ancillary remedies such as injunctive relief,
sequestration, attachment, garnishment or the appointment of a receiver from a
court having jurisdiction before, during or after the pendency of any
arbitration. The institution and maintenance of an action for judicial relief or
pursuit of provisional or ancillary remedies or exercise of self-help remedies
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the Dispute to arbitration nor render inapplicable the
compulsory arbitration provision hereof.
- 8 -
11. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BANKS,
THE COMPANY AND SUBORDINATOR EACH MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, THE CREDIT AGREEMENT, THE BANK
NOTE OR ANY OF THE LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE DEALINGS OF BANKS, THE COMPANY AND SUBORDINATOR WITH RESPECT
TO THIS AGREEMENT, THE CREDIT AGREEMENT, THE BANK NOTE OR ANY OF THE LOAN
DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BANKS, THE COMPANY AND
SUBORDINATOR EACH MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM,
DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A BENCH TRIAL WITHOUT A JURY AND THAT
THE DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
12. In the event any one or more of the provisions contained in this
Agreement should 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.
13. The Company joins in the execution of this Agreement to evidence its
agreement to the terms hereof and to be legally bound hereby. This Agreement
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement, as of the
day and year first above written.
SUBORDINATOR:
CENTURY CASINOS, INC.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
COMPANY:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/Xxxxxxx Teufelberger
--------------------------
Xxxxxxx Teufelberger
Director
AGENT BANK:
XXXXX FARGO BANK, National Association, as administrative and collateral agent
on behalf of itself and each of the Lenders
By /s/ Xxxx Xxxxxxxx
--------------------
Xxxx Xxxxxxxx
Vice President
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