AMENDMENT NO. 1 TO LOAN AGREEMENT
This Amendment No. 1 to Loan Agreement (this
"Amendment"), dated as of May 28, 1998 is entered into with
reference to the Second Amended and Restated Loan Agreement
dated as of October 4, 1994, among Tropicana Enterprises, a
Nevada general partnership ("Borrower"), Hotel Ramada of
Nevada, a Nevada corporation ("HRN"), the Banks, Lead
Managers, Co-Agents, and Co-Managing Agent referred to therein,
and Bank of America National Trust and Savings Association, as
Managing Agent (the "Loan Agreement"). Capitalized terms used
but not defined herein have the meanings set forth for those
terms in the Loan Agreement.
Borrower, HRN, and the Administrative Agent, acting
with the consent of the Banks under the Loan Agreement, hereby
agree as follows:
1.Titles. It is hereby agreed that Bank of America National
Trust and Savings Association (together with each successor
thereto appointed in accordance with the terms of the Loan
Agreement) shall serve as the administrative agent for the
Banks under the Loan Agreement (in such capacity, the
"Administrative Agent"), and is hereby appointed in that
capacity by each of the Banks. Each reference contained in the
Loan Agreement and the other Loan Documents to the term
"Managing Agent" shall be deemed a reference to the
"Administrative Agent", and Bank of America National Trust and
Savings Association (and each successor) shall be entitled to
exercise each of the powers, shall be subject to all of the
duties, and shall be entitled to all of the indemnities and
exculpations, formerly ascribed to the Managing Agent. Each
reference to the Lead Managers, Co-Agents and Co-Managing Agent
in the Loan Agreement and other Loan Documents shall be deemed
eliminated and, in lieu thereof, reference shall therein be
made to Bankers Trust Company and Societe Generale, as
Documentation Agents, and Bank of Scotland, Credit Lyonnais
Los Angeles Branch and PNC Bank, National Association as Co-
Agents.
2.Definitions. Section 1.1 of the Loan Agreement is hereby
amended so that the following definitions included therein are
amended to read in full as follows:
"Discretionary Notes" means any of the Discretionary
Notes issued by Borrower to a Bank evidencing that
Bank's Pro Rata Share of the Loans, substantially in
the form of Exhibit C-2 hereto.
"Master Note" shall mean the Master Note dated as of
May __, 1998 made by Borrower in favor of the
Administrative Agent to collectively evidence the
Loans made by all of the Banks, substantially in the
form of Exhibit "C-1" hereto, either as originally
executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or
supplanted.
"Notes means, collectively, the Master Note and any
Discretionary Notes, in each case either as
originally executed or as the same may from time to
time be supplemented, modified, amended, renewed,
extended or supplanted.
"Other Loan Agreement" means the Amended and Restated
Reducing Revolving Loan Agreement among Aztar
Corporation, the Lenders therein named, and Bank of
America National Trust and Savings Association, as
Administrative Agent, either as originally executed
or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
It is understood and agreed that the use of the term
"Bank" in the Loan Agreement and the other Loan Documents
shall not infer that present or future members of the
group of Banks are or must be national banks organized
under the National Bank Act, or any other form of
commercial bank.
3.Section 10.3(b) - Assignments. Section 10.3(b) of the Loan
Agreement is hereby amended to read in full as follows (with
emphasis denoting the change from the existing text of the Loan
Agreement):
"(b) From time to time, each Bank may assign
all or any portion of its Note to one or more
Eligible Assignees; provided that (i) such Eligible
Assignee, if not then a Bank or an Affiliate of the
assigning Bank, shall be approved by each of the
Administrative Agent, HRN and Borrower (neither of
which approvals shall be unreasonably withheld or
delayed), (ii) such assignment shall be evidenced by
a Commitment Assignment and Acceptance, a copy of
which shall be furnished to the Administrative Agent
as hereinbelow provided, (iii) except in the case of
an assignment to an Affiliate of the assigning Bank,
to another Bank or of the entire Note of the
assigning Bank, the assignment shall not assign a
Pro Rata Share that, when added to the pro rata share
of the obligations under the Other Loan Agreement
being concurrently assigned to the same Eligible
Assignee, is equivalent to less than $10,000,000,
(iv) assignment of a Pro Rata Share must be
concurrent with an assignment to the same Eligible
Assignee of the same pro rata share of the assigning
Bank's pro rata share of the Other Loan Agreement and
(v) the effective date of any such assignment shall
be as specified in the Commitment Assignment and
Acceptance, but not earlier than the date which is
five (5) Banking Days after the date the
Administrative Agent has received the Commitment
Assignment and Acceptance. Upon the effective date
of such Commitment Assignment and Acceptance, the
Eligible Assignee named therein shall be a Bank for
all purposes of this A/R Loan Agreement, with the Pro
Rata Share of the Commitment therein set forth and,
to the extent of such Pro Rata Share, the assigning
Bank shall be released from its further obligations
under this A/R Loan Agreement. Borrower agrees that
it shall execute and deliver (against delivery by the
assigning Bank to Borrower of its Discretionary Note)
to such assignee Bank, a Discretionary Note
evidencing that assignee Bank's Pro Rata Share of the
Loans, and to the assigning Bank, a Discretionary
Note evidencing the remaining balance Pro Rata Share
retained by the assigning Bank."
4.Section 10.13. A new Section 10.13 is hereby added to the
Loan Agreement, to read as follows:
"Section 10.13 Withdrawal of Xxxxx Group.
Notwithstanding anything to the contrary contained in
this Agreement, the Notes or any of the other Loan
Documents, each of the Administrative Agent and the
Banks hereby irrevocably (i) consents to the
acquisition by Aztar Corporation or any Subsidiary of
Aztar Corporation (as the term "Subsidiary" is
defined in the Other Loan Agreement) of the 50%
general partnership interest in the Borrower not
owned by Adamar as of the effective date of this
Amendment and the withdrawal of the Xxxxx Group as
partners of Borrower and from the partnership
consisting of Borrower and (ii) acknowledges,
confirms and agrees, without limiting the provisions
of Section 8.16 of this Agreement, Section 25 of the
Master Note and Section 6 of the Discretionary Notes,
that no member of the Xxxxx Group has, or after such
acquisition of such partnership interest and such
withdrawal as partners and from the partnership shall
have, any personal liability for any of the Loans or
any other indebtedness, obligations or liabilities at
any time outstanding or arising under this Agreement,
the Notes or any of the other Loan Documents."
5.Cross References to Notes. The cross references set forth in
Section 8.20 of the Loan Agreement to "Sections 8, 9 or 14(c)
of that Bank's Note" shall hereafter be deemed references to
Section 7, 8 and 13(c) of the Master Note.
6.Certain Exhibits. The form of Exhibit C to the Loan
Agreement is hereby replaced with Exhibits C-1 and C-2 to this
Amendment.
7.Master Note and Discretionary Notes. Concurrently with the
execution of this Amendment, Borrower will issue a single
Master Note to the Administrative Agent to collectively
evidence the Loans made by all of the Banks under the Loan
Agreement, and the Master Note will supersede and replace each
of the Notes heretofore issued pursuant to the Loan Agreement.
Each of Banks party to the Loan Agreement as in effect prior to
this Amendment shall surrender its old Note to Borrower within
a reasonable time following the execution of this Amendment,
but the failure of any Bank to so surrender its Note shall not
affect the fact that such old Note has been superseded by the
Master Note. Borrower agrees that it shall promptly issue a
Discretionary Note to each Bank which requests the same from
time to time shall to evidence its Loans under the Loan
Agreement.
8.Confirmation As to Principal Outstanding. Borrower
confirms that, as of the date of this Amendment, the aggregate
principal amount of the outstanding Loans is Sixty-Two Million
Two Hundred Seventy-Eight Thousand Four Hundred Thirty-Three
and 79/100 Dollars ($62,278,433.79).
9.Typographical Errors. The first word in Section 5.23(c) of
the Loan Agreement is corrected to read "Waive." The cross-
references in Section 8.20 of the Loan to "Section 11.25" are
corrected to read "Section 11.24."
10.Representation and Warranty. Borrower and HRN hereby
represent and warrant to the Administrative Agent and each of
the Banks that each of the representations and warranties set
forth in Article 4 of the Loan Agreement (other than those
which expressly relate to a particular date) are true and
correct as of the date hereof, and giving effect to the
transactions contemplated to occur as of the date hereof, and
no Default or Event of Default has occurred and remains
continuing or will result from the execution and delivery of
this Amendment.
11.Conditions Precedent. The following shall be conditions
precedent to the effectiveness of this Amendment:
(a) The Administrative Agent shall have received the
written consent of each of the Banks to its execution and
delivery of this Amendment;
(b) The Xxxxx Group shall have executed and
delivered a written reaffirmation of the Subordination
Agreement substantially in the form of Exhibit A hereto;
(c) Borrower shall have issued the Master Note to
the Administrative Agent, and shall have issued
Discretionary Notes to each Bank requesting a
Discretionary Note;
(d) Borrower shall have executed an Amendment to the
Deed of Trust, substantially in the form of Exhibit B
hereto;
(e) The Administrative Agent shall have received a
legal opinion of counsel to Borrower and HRN with respect
to the due authorization, execution and delivery of this
Amendment by Borrower and HRN, the enforceability thereof
and such related matters as the Administrative Agent may
reasonably request;
(f) The Administrative Agent shall have received
such certificates with respect to the authorization of
this Amendment under Borrower's Partnership Agreement as
it may reasonably request;
(g) The Administrative Agent shall have received
such estoppel certificates with respect to the HRN Master
Lease as it may reasonably request;
(h) The Administrative Agent shall have received a
CLTA 110.5 endorsement to its policy of title insurance
assuring the continued priority and perfection of the Deed
of Trust which is in a form acceptable to the
Administrative Agent;
(i) No Default or Event of Default shall have
occurred and remain continuing and the Administrative
Agent shall have received a certificate to that effect
from Borrower; and
(j) A Global Assignment and Release, substantially
in the form of Exhibit D hereto, shall have been executed
by each of the Banks concurrently herewith.
12.Confirmation. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are hereby confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above
written.
"Borrower"
TROPICANA ENTERPRISES, a Nevada
general partnership
By: ADAMAR OF NEVADA, general
partner
By: X. XXXXXXXXX
Title: V.P. Secretary
"HRN"
HOTEL RAMADA OF NEVADA, a Nevada
corporation
By: X. XXXXXXXXX
Title: V.P. Secretary
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
Vice President
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 11th Floor,
#20529
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: XXXXX X. XXXXX
Xxxxx X. Xxxxx
Vice President
Outstanding principal amount as of the
date of this Amendment: $12,302,921.10
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx,
#0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:Xxxxxxx Xxxxx
Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANKERS TRUST COMPANY, as
Documentation Agent and as a Bank
By XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
Outstanding principal amount as of the
date of this Amendment: $10,950,809.55
Address:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:Xxxxx Xxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SOCIETE GENERALE, as Documentation
Agent and as a Bank
By XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
First Vice President
Outstanding principal amount as of the
date of this Amendment: $10,950,809.55
Address:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:Xxxxxx X. Xxxxxxxx
First Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy sent to:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx xxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: 9310) 000-0000
BANK OF SCOTLAND, as Co-Agent and as a
Bank
By XXXXX XXXX TAT
Xxxxx Xxxx Tat
Vice President
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx-Tat
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of Scotland
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CREDIT LYONNAIS LOS ANGELES BRANCH, as
Co-Agent and as a Bank
By XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Vice President and Manager
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxx Xxxx, Esquire
Legal Department
Credit Lyonnais, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION, as Co-
Agent and as a Bank
By XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Vice President
Outstanding principal amount as of the
date of this Amendment: $5,375,851.96
Address:
PNC Bank, N.A.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ABN AMRO BANK, N.V., as a Bank
By XXXXXXX X. FRENCH
Xxxxxxx X. French
Group Vice President and Director
By X. XXXXXXXXX
Xxxxxxx Xxxxxxxxx
Assistant Vice President and
Credit Analyst
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
ABN AMRO Bank, N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION, as a Bank
By XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
Senior Vice President
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
Imperial Bank
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION, as a
Bank
By XXXX X. XXXXX
Xxxx X. Xxxxx
Commercial Banking Officer
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY, as a
Bank
By Y. SATOMI
Yasushi Satomi
Senior Vice President and Chief
Manager
Outstanding principal amount as of the
date of this Amendment: $2,986,584.43
Address:
The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: F. Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Exhibit A - Reaffirmation of Subordination
Exhibit B - Amendment to Deed of Trust
Exhibit C-1 - Master Note
Exhibit C-2 - Discretionary Notes
Exhibit D - Global Assignment and Release
EXHIBIT A-1
REAFFIRMATION OF
SUBORDINATION AGREEMENT
(Xxxxx Deed of Trust--Loan)
THIS AGREEMENT is made and entered into as of May 28,
1998, by and among TROPICANA ENTERPRISES, a Nevada general
partnership, owner of the land hereinafter described and
hereinafter referred to as "Owner", HOTEL RAMADA OF NEVADA, a
Nevada corporation hereinafter referred to as "HRN," and
Beneficiaries (as defined below). As used herein,
"Beneficiaries" means the following present owners and holders
of the Deed of Trust and Promissory Note first hereinafter
described: Xxxx X. Xxxxxxx and Xxxxxx Xxxxxxx, as Co-Trustees
of the RMS, Jr. Gift Discretionary B Trust under agreement
dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxx X.
Xxxxxxx, as Co-Trustees of the RMS, Jr. Discretionary B Trust
under agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx.
and Xxxx X. Xxxxxxx, as Co-Trustees of the KK Gift
Discretionary B Trust under agreement dated January 3, 1997;
Xxxxxxx X. Xxxxxx, Xx. and Xxxxxx Xxxxxxx, as Co-Trustees of
the KK Discretionary B Trust under agreement dated January 3,
1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxxx, as
Co-Trustees of the JSB Gift Discretionary B Trust under
agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and
Xxxxxxx X. Xxxxxx, as Co-Trustees of the JSB Discretionary B
Trust under agreement dated January 3, 1997; Xxxxxxx X.
Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, as Co-Trustees of the LG
Gift Discretionary B Trust under agreement dated January 3,
1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxxx, as
Co-Trustees of the LG Discretionary B Trust under agreement
dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxx X. Xxxxx,
as Co-Trustees of the EW Discretionary B Trust under agreement
dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxx X. Xxxxx,
as Co-Trustees of the DW Discretionary B Trust under agreement
dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxx X. Xxxxx,
as Co-Trustees of the JM Discretionary B Trust under agreement
dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxxx Xxxxx,
as Co-Trustees of the BJW Descendants Discretionary B Trust for
Xxxxx Xxxxx under agreement dated January 3, 1997; Xxx X.
Xxxxx, as Trustee of the Xxxxxx Trust B Discretionary Trust for
Xxxx under agreement dated June 15, 1987; Xxx X. Xxxxx, as
Trustee of the Xxxxxx Trust B Discretionary Trust for Xxxx
under agreement dated June 15, 1987; and Xxx X. Xxxxx, as
Trustee of the Xxxxxx Trust B Discretionary Trust for Ben under
agreement dated June 15, 1987.
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxx and Xxxxxx Xxxxx, his wife,
Xxxxx Xxxx Xxxxx and her then husband Xxxxxx X. Xxxxx, Xxxxxx
Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxx, her husband, Xxxx Xxxxx
Xxxxxx and Xxxxxx Xxxxxx Xxxxxx, her husband, and Xxxx Xxx
Xxxxxxx and her now deceased husband Xxxxx Xxxxx Xxxxxxx, III,
and Xxx X. Xxxxx, did execute a Deed of Trust, dated June 25,
1968, to Title Insurance and Trust Company, a California
corporation, as trustee, encumbering various real properties
more particularly described therein, including specifically,
that certain real property and improvements situated in the
County of Xxxxx, State of Nevada more particularly described on
that certain exhibit marked Exhibit A, affixed hereto and by
this reference incorporated herein and made a part hereof, to
secure a note in the original principal sum of $7,400,000, of
even date therewith (the "Xxxxx Note"), in favor of Xxx Xxxxx,
which Deed of Trust was recorded July 1, 1968, in the office of
the County Recorder of Xxxxx County, Nevada, in Book 883, as
Document No. 709115, Official Records (the "Xxxxx Deed of
Trust").
WHEREAS, XXX XXXXX died on the 10th day of August,
1968 and his estate was probated in the Eighth Judicial
District Court of the State of Nevada, in and for the County of
Xxxxx, in proceedings No. A57614.
WHEREAS, the Xxxxx Note and Xxxxx Deed of Trust were
transferred to Xxxxxx Xxxxx and Xxxxx Xxxxx, as Co-Trustees
under the Trust A and the Residuary Trust, each created under
the Last Will and Testament of Xxx Xxxxx ("Previous
Beneficiaries"), pursuant to the terms of that certain
Promissory Note Transfer Agreement dated November 1, 1982 and
confirmed by Order Approving Co-Executors' Final Account and
Report, Order Approving and Ratifying Actions of Co-Executors,
Order Providing for Distribution of Additional Income after
February 2, 1983 and Authorizing Payment of Fees for Attorney
for Absent Heirs dated April 15, 1983 and filed in proceeding
No. A57614, described hereinabove, on April 15, 1983.
WHEREAS, the terms of the Xxxxx Note were amended by
that certain Note Amendment Agreement dated December 15, 1982
and recorded on June 13, 1983 in the office of the County
Recorder of Xxxxx County, Nevada, in Book 1749, as Document
No. 1708846, Official Records.
WHEREAS, the Xxxxx Note and Xxxxx Deed of Trust have
been transferred to Beneficiaries.
WHEREAS, Owner and HRN did execute a Deed of Trust
and Security Agreement with Assignment of Rents dated
November 19, 1984 (the "Original Bank Deed of Trust"), recorded
November 20, 1984, in the office of the Recorder of Xxxxx
County, Nevada, in Book 2024, Document No. 1983548, Official
Records, for the benefit of the predecessors-in-interest of
Senior Beneficiary (as defined below).
WHEREAS, the parties hereto (or their predecessors-
in-interest) previously executed, delivered and recorded that
certain Subordination Agreement dated November 19, 1984 (the
"Original Subordination") and recorded on November 20, 1984, in
the office of the County Recorder of Xxxxx County in Book 2024,
as Document No. 1983544, Official Records, pursuant to which
the lien of the Xxxxx Deed of Trust was subordinated to the
lien of the Original Bank Deed of Trust.
WHEREAS, Owner, HRN and Previous Beneficiaries
previously executed that certain Reaffirmation of Subordination
Agreement dated October 4, 1994 (the "October 1994
Reaffirmation"), recorded October 5, 1994 in Book 941005 as
Instrument No. 00645 in the Official Records of Xxxxx County,
Nevada.
WHEREAS, as more particularly described in the
October 1994 Reaffirmation, the October 1994 Reaffirmation was
entered into substantially concurrently with (i) that certain
Second Amended and Restated Loan Agreement dated October 4,
1994 (as modified from time to time, the "Loan Agreement"),
which amended and restated in its entirety the Original Loan
Agreement so defined in the October 1994 Reaffirmation, and
(ii) an Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (as
modified from time to time, the "Bank Deed of Trust"), which
amended and restated in its entirety the Original Bank Deed of
Trust and which was recorded October 5, 1994 in Book 941005 as
Instrument No. 00644 in the Official Records of Xxxxx County,
Nevada.
WHEREAS, substantially concurrently herewith Bank of
America National Trust and Savings Association, a national
banking association, as "Administrative Agent" for the Banks so
defined in the Loan Agreement (in such capacity, "Senior
Beneficiary"), has executed (i) that certain Amendment No. 1 to
Loan Agreement of even date herewith (the "Loan Agreement
Amendment"), which amends the Loan Agreement, and (ii) that
certain First Amendment to Amended and Restated Deed of Trust
and Security Agreement with Assignment of Rents (the "Bank Deed
of Trust Amendment"), which amends the Bank Deed of Trust for
the purpose of providing continued security for the Loan
Agreement as amended.
WHEREAS, it is a condition precedent to the
effectiveness of such Loan Agreement Amendment and Bank Deed of
Trust Amendment that the parties hereto reaffirm the terms and
provisions of the Original Subordination.
WHEREAS, Beneficiaries are willing to reaffirm that
the Bank Deed of Trust, as modified by the Bank Deed of Trust
Amendment, constitutes a lien or charge upon the real property
described on Exhibit A hereto and all other collateral
described in the Bank Deed of Trust which is unconditionally
prior and superior to the lien or charge of the Xxxxx Deed of
Trust.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which consideration is hereby
acknowledged, and in order to induce Senior Beneficiary to
enter into the amendments described above, it is hereby
reaffirmed, declared, understood and agreed as follows:
(1) That the Bank Deed of Trust as amended by the
Bank Deed of Trust Amendment, and any renewals or extensions
thereof, is and shall at all times unconditionally be and
remain a lien or charge upon the real property described on
Exhibit A hereto and all other collateral described in the Bank
Deed of Trust, prior and superior to the lien or charge of the
Xxxxx Deed of Trust.
(2) That Senior Beneficiary would not enter into the
amendments described above without this reaffirmation of
subordination agreement.
(3) Beneficiaries declare, agree and acknowledge
that:
a. They have reviewed and understand (i) all
provisions of the Loan Agreement Amendment and (ii) all
provisions of the Bank Deed of Trust Amendment; and
b. They (or their predecessors-in-interest)
have previously intentionally and unconditionally waived,
relinquished and subordinated the lien or charge of the
Xxxxx Deed of Trust in favor of the lien or charge upon
the real property described on Exhibit A hereto and all
other collateral described in the Bank Deed of Trust and
hereby reaffirm such waiver, relinquishment and
subordination with respect to the Bank Deed of Trust and
all collateral described in the Bank Deed of Trust and
understand that, in reliance upon, and in consideration
of, this waiver, relinquishment and subordination, certain
agreements have been entered into which would not have
been entered into but for said reliance upon the Original
Subordination as reaffirmed hereby.
This document may be executed in counterparts with
the same force and effect as if the parties had executed one
instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, the parties have hereunto set
their hands as of the day and year first above written.
OWNER:
TROPICANA ENTERPRISES,
a Nevada general partnership
By: ADAMAR OF NEVADA,
a Nevada corporation,
its general partner
By:____________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
HRN:
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By______________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
BENEFICIARIES:
_____________________________________
XXXX X. XXXXXXX,
as authorized agent for each of the Beneficiaries
pursuant to the delegation of authorities,
discretions and powers under that certain
Delegation of Trustees Powers Over Bond Notes
dated December 29, 1997, executed by all of
the Beneficiaries
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ILLINOIS )
) ss.
COUNTY OF _______________ )
On this the _______ day of ________________, 1998,
personally appeared before me, a Notary Public, XXXX X.
XXXXXXX, known to me to be the person described in and who
acknowledged that he executed the foregoing instrument.
_______________________________
Notary Public
EXHIBIT "A"
(Legal Description)
All that certain real property, situated in the
County of Xxxxx, State of Nevada, and described as follows:
The Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M.
EXCEPTING from the hereinabove described property that portion
of the Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87 degrees 36' East a distance of 50.06 feet to a point on
the East right of way line of U.S. Highway No. 91, this point
being the true point of beginning;
THENCE South 87 degrees 36' East along the North line of said Section a
distance of 1267.20 feet to a point;
THENCE South 0 degrees 25'00" East a distance of 101.41 feet to a
point;
THENCE South 89 degrees 45'02" West a distance of 1265.75 feet to a
point;
THENCE North 0 degrees 22'00" West a distance of 159.98 feet to the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest
Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed
to the State of Nevada for public highway by Deed dated
December 15, 1952 and recorded August 11, 1953 as Document
No. 411231, Xxxxx County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Xxxxx
County for road purposes by Document No. 104313 and recorded
April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed
to Xxxxx County for road and public utility purposes by
Document No. 262900, recorded February 22, 1973 in Book 303 and
by Document No. 551260, recorded February 4, 1976 in Book 592
of Official Records, Xxxxx County, Nevada.
EXHIBIT A-2
XXXXX TRUSTEES REAFFIRMATION OF
SUBORDINATION AGREEMENT
(Xxxxx Financing Statement)
THIS AGREEMENT is made as of May 28, 1998, by the
Junior Trustees (as defined below), Tropicana Enterprises, a
Nevada general partnership (hereinafter called "Owner"), and
Hotel Ramada of Nevada, a Nevada corporation (hereinafter
called "HRN"), in favor of Bank of America National Trust and
Savings Association, a national banking association
(hereinafter called "Lender"), as "Administrative Agent" for
the "Banks," as those terms are defined in that certain Second
Amended and Restated Loan Agreement dated October 4, 1994 among
Owner, HRN, Lender (as Administrative Agent), and each of the
Banks and Co-Agents which executed such agreement (as modified
from time to time, the "Second Amended Loan Agreement"). As
used herein, "Junior Trustees" means, collectively: Xxxx X.
Xxxxxxx and Xxxxxx Xxxxxxx, as Co-Trustees of the RMS, Jr. Gift
Discretionary B Trust under agreement dated January 3, 1997;
Xxxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxxx, as Co-Trustees of
the RMS, Jr. Discretionary B Trust under agreement dated
January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxxx, as
Co-Trustees of the KK Gift Discretionary B Trust under
agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and
Xxxxxx Xxxxxxx, as Co-Trustees of the KK Discretionary B Trust
under agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx.
and Xxxx X. Xxxxxxx, as Co-Trustees of the JSB Gift
Discretionary B Trust under agreement dated January 3, 1997;
Xxxxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, as Co-Trustees of
the JSB Discretionary B Trust under agreement dated January 3,
1997; Xxxxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, as
Co-Trustees of the LG Gift Discretionary B Trust under
agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx. and
Xxxx X. Xxxxxxx, as Co-Trustees of the LG Discretionary B Trust
under agreement dated January 3, 1997; Xxxxxxx X. Xxxxxx, Xx.
and Xxx X. Xxxxx, as Co-Trustees of the EW Discretionary B
Trust under agreement dated January 3, 1997; Xxxxxxx X.
Xxxxxx, Xx. and Xxx X. Xxxxx, as Co-Trustees of the DW
Discretionary B Trust under agreement dated January 3, 1997;
Xxxxxxx X. Xxxxxx, Xx. and Xxx X. Xxxxx, as Co-Trustees of the
JM Discretionary B Trust under agreement dated January 3, 1997;
Xxxxxxx X. Xxxxxx, Xx. and Xxxxx Xxxxx, as Co-Trustees of the
BJW Descendants Discretionary B Trust for Xxxxx Xxxxx under
agreement dated January 3, 1997; Xxx X. Xxxxx, as Trustee of
the Xxxxxx Trust B Discretionary Trust for Xxxx under agreement
dated June 15, 1987; Xxx X. Xxxxx, as Trustee of the Xxxxxx
Trust B Discretionary Trust for Xxxx under agreement dated
June 15, 1987; and Xxx X. Xxxxx, as Trustee of the Xxxxxx
Trust B Discretionary Trust for Ben under agreement dated
June 15, 1987.
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxx and Xxxxxx Xxxxx, his wife,
Xxxxx Xxxx Xxxxx and her then husband Xxxxxx X. Xxxxx, Xxxxxx
Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxx, her husband, Xxxx Xxxxx
Xxxxxx and Xxxxxx Xxxxxx Xxxxxx, her husband, and Xxxx Xxx
Xxxxxxx and her now deceased husband Xxxxx Xxxxx Xxxxxxx, III,
and Xxx X. Xxxxx, did execute a Deed of Trust, dated June 25,
1968, to Title Insurance and Trust Company, a California
corporation, as trustee, encumbering various real properties
more particularly described therein, including specifically,
that certain real property and improvements situated in the
County of Xxxxx, State of Nevada described on Exhibit A
thereto, to secure a note in the original principal sum of
$7,400,000, of even date therewith (the "Xxxxx Note"), in favor
of Xxx Xxxxx, which Deed of Trust was recorded July 1, 1968, in
the office of the County Recorder of Xxxxx County, Nevada, in
Book 883, as Document No. 709115, Official Records (the "Xxxxx
Deed of Trust"); and
WHEREAS, XXX XXXXX died on the 10th day of August,
1968 and his estate was probated in the Eighth Judicial
District Court of the State of Nevada, in and for the County of
Xxxxx, in proceedings No. A57614; and
WHEREAS, the Xxxxx Note and Xxxxx Deed of Trust were
transferred to Xxxxxx Xxxxx and Xxxxx Xxxxx as Co-Trustees
under the Trust A and the Residuary Trust, each created under
the Last Will and Testament of Xxx Xxxxx (hereinafter the
"Previous Trustees"), pursuant to the terms of that certain
Promissory Note Transfer Agreement dated November 3, 1982 and
confirmed by Order Approving Co-Executors' Final Account and
Report, Order Approving and Ratifying Actions of Co-Executors,
Order Providing for Distribution of Additional Income after
February 2, 1983 and Authorizing Payment of Fees for Attorney
for Absent Heirs dated April 15, 1983 and filed in proceeding
No. A57614, described hereinabove, on April 15, 1983; and
WHEREAS, the terms of the Xxxxx Note were amended by
that certain Note Amendment Agreement dated December 15, 1982
and recorded on June 13, 1983 in the office of the County
Recorder of Xxxxx County, Nevada, in Book 1749, as Document
No. 1708846, Official Records; and
WHEREAS, in connection with the Xxxxx Deed of Trust
and Xxxxx Note, Xxxxxx Xxxxx, Xxxx Xxxxx Xxxxxx, Xxxx Xxx
Xxxxxxx, Xxx X. Xxxxx, Xxxxxx Xxxxx Xxxxxx and Xxxxx Xxxx
Xxxxx, as Debtors, did previously execute a Nevada Uniform
Commercial Code Financing Statement in favor of Xxx Xxxxx (as
predecessor in interest to the Junior Trustees), dated June 24,
1968 and filed on August 9, 1968 in Book 889, Instrument
No. 714389 in the Office of the Recorder of Xxxxx County,
Nevada, covering the Collateral (the "Xxxxx Financing
Statement"); and
WHEREAS, the Xxxxx Note, Xxxxx Deed of Trust and
Xxxxx Financing Statement have been transferred to Junior
Trustees; and
WHEREAS, Owner and HRN did execute a Deed of Trust
and Security Agreement with Assignment of Rents dated
November 19, 1984 (the "Original Bank Deed of Trust"), recorded
November 20, 1984, in the office of the Recorder of Xxxxx
County, Nevada, in Book 2024, Document No. 1983548, Official
Records, for the benefit of the predecessors-in-interest of
Lender; and
WHEREAS, in connection with the Xxxxx Financing
Statement, Previous Trustees and Owner executed, delivered and
recorded that certain Xxxxx Trustees Subordination Agreement
dated November 19, 1984 and recorded on November 20, 1984 in
the office of the County Recorder of Xxxxx County in Book 2024,
as Document No. 1983545, Official Records (the "Original
Subordination"); and
WHEREAS, Owner, HRN and Previous Trustees previously
executed that certain Xxxxx Trustees Reaffirmation of
Subordination Agreement dated October 4, 1994 (the
"October 1994 Reaffirmation"), recorded October 5, 1994 in Book
941005 as Instrument No. 00646 in the Official Records of Xxxxx
County, Nevada; and
WHEREAS, as more particularly described in the
October 1994 Reaffirmation, the October 1994 Reaffirmation was
entered into substantially concurrently with (i) that certain
Second Amended and Restated Loan Agreement dated October 4,
1994 (as modified from time to time, the "Loan Agreement"),
which amended and restated in its entirety the Original Loan
Agreement so defined in the October 1994 Reaffirmation, and
(ii) an Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (as
modified from time to time, the "Bank Deed of Trust"), which
amended and restated in its entirety the Original Bank Deed of
Trust and which was recorded October 5, 1994 in Book 941005 as
Instrument No. 00644 in the Official Records of Xxxxx County,
Nevada; and
WHEREAS, substantially concurrently herewith Lender
has executed (i) that certain Amendment No. 1 to Loan Agreement
of even date herewith (the "Loan Agreement Amendment"), which
amends the Loan Agreement, and (ii) that certain First
Amendment to Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents (the "Bank Deed of Trust
Amendment"), which amends the Bank Deed of Trust for the
purpose of providing continued security for the Loan Agreement
as amended; and
WHEREAS, it is a condition precedent to the
effectiveness of such Loan Agreement Amendment and Bank Deed of
Trust Amendment that the parties hereto reaffirm the terms and
provisions of the Original Subordination; and
WHEREAS, the Junior Trustees are willing to reaffirm
that the Bank Deed of Trust, as modified by the Bank Deed of
Trust Amendment, constitutes a lien or charge upon the real
property described on Exhibit A hereto and all other real and
personal property described in the Bank Deed of Trust (the
"Collateral"), which is unconditionally prior and superior to
the lien or charge of the Xxxxx Financing Statement;
NOW, THEREFORE, in consideration of the mutual
benefits accruing to the parties hereto and other good and
valuable considerations, the receipt and sufficiency of which
consideration is hereby acknowledged, and in order to induce
Lender to enter into the amendments described above, it is
hereby declared, understood and agreed as follows:
(1) That Lender would not enter into the amendments
described above without this Reaffirmation of Subordination
Agreement.
(2) The Bank Deed of Trust as amended by the Bank
Deed of Trust Amendment, and any renewals or extensions
thereof, is and at all times shall unconditionally be and
remain a lien or charge on the Collateral, prior and superior
to the lien or charge of the Xxxxx Financing Statement.
(3) The Junior Trustees declare, agree and
acknowledge that:
c. They have reviewed and understand (i) all
provisions of the Loan Agreement Amendment and (ii) all
provisions of the Bank Deed of Trust Amendment; and
d. They (or their predecessors-in-interest)
have previously intentionally and unconditionally waived,
relinquished and subordinated the lien or charge of the
Xxxxx Financing Statement in favor of the lien or charge
upon the real property described on Exhibit A and the
Collateral of the Bank Deed of Trust and hereby reaffirm
such waiver, relinquishment and subordination and
understand that, in reliance upon, and in consideration
of, this waiver, relinquishment and subordination, certain
agreements have been entered into which would not have
been entered into but for said reliance upon the Original
Subordination as reaffirmed hereby.
This document may be executed in counterparts with
the same force and effect as if the parties had executed one
instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, the parties have hereunto set
their hands as of the day and year first above written.
OWNER:
TROPICANA ENTERPRISES,
a Nevada general partnership
By: ADAMAR OF NEVADA,
a Nevada corporation,
its general partner
By:____________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
HRN:
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By______________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
JUNIOR TRUSTEES:
_____________________________________
XXXX X. XXXXXXX,
as authorized agent for each of the Junior Trustees
pursuant to the delegation of authorities,
discretions and powers under that certain
Delegation of Trustees Powers Over Bond Notes
dated December 29, 1997, executed by all of
the Junior Trustees
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ILLINOIS )
) ss.
COUNTY OF _______________ )
On this the _______ day of ________________, 1998,
personally appeared before me, a Notary Public, XXXX X.
XXXXXXX, known to me to be the person described in and who
acknowledged that he executed the foregoing instrument.
_______________________________
Notary Public
EXHIBIT "A"
(Legal Description)
All that certain real property, situated in the
County of Xxxxx, State of Nevada, and described as follows:
The Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M.
EXCEPTING from the hereinabove described property that portion
of the Northwest Quarter (NW 1/4) of the Northwest Quarter
(NW 1/4) of Section 28, Township 21 South, Range 61 East,
M.D.B. & M., more particularly described as follows:
COMMENCING at the Northwest corner of said Section;
THENCE South 87 degrees 36' East a distance of 50.06 feet to a point on
the East right of way line of U.S. Highway No. 91, this point
being the true point of beginning;
THENCE South 87 degrees 36' East along the North line of said Section a
distance of 1267.20 feet to a point;
THENCE South 0 degrees 25'00" East a distance of 101.41 feet to a
point;
THENCE South 89 degrees 45'02" West a distance of 1265.75 feet to a
point;
THENCE North 0 degrees 22'00" West a distance of 159.98 feet to the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of the Northwest
Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
28, Township 21 South, Range 61 East, M.D.B. & M., as conveyed
to the State of Nevada for public highway by Deed dated
December 15, 1952 and recorded August 11, 1953 as Document
No. 411231, Xxxxx County, Nevada Records.
FURTHER EXCEPTING THEREFROM that portion as conveyed to Xxxxx
County for road purposes by Document No. 104313 and recorded
April 23, 1957.
FURTHER EXCEPTING THEREFROM the Southerly 30 feet as conveyed
to Xxxxx County for road and public utility purposes by
Document No. 262900, recorded February 22, 1973 in Book 303 and
by Document No. 551260, recorded February 4, 1976 in Book 592
of Official Records, Xxxxx County, Nevada.
EXHIBIT B
FIRST AMENDMENT TO
AMENDED AND RESTATED DEED OF TRUST
AND SECURITY AGREEMENT
WITH ASSIGNMENT OF RENTS
This First Amendment to Amended and Restated Deed of
Trust and Security Agreement with Assignment of Rents, dated as
of May 28, 1998 ("Amendment"), is by and among TROPICANA
ENTERPRISES, a Nevada general partnership, as Debtor and
Trustor (hereinafter referred to as "Trustor"), HOTEL RAMADA OF
NEVADA, a Nevada corporation, as an Additional Debtor
(hereinafter referred to as "Additional Debtor"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association, as "Administrative Agent" (as defined in
the Loan Agreement Amendment described below) for the "Banks"
(as defined in the Loan Agreement described below), as
Beneficiary and Secured Party (hereinafter referred to as
"Beneficiary"). This Amendment is a first amendment to that
certain Amended and Restated Deed of Trust and Security
Agreement with Assignment of Rents dated October 4, 1994 (the
"Original Deed of Trust"), executed by Trustor and Additional
Debtor for the benefit of Beneficiary and recorded October 5,
1994 in Book 941005 as Instrument No. 00644 in the Official
Records of Xxxxx County, Nevada. The Original Deed of Trust,
as modified from time to time (including by this Amendment), is
referred to herein as the "Deed of Trust."
In consideration of the foregoing, and for other
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Trustor, Additional Debtor and
Beneficiary hereby agree as follows:
1. Recitals and Certain Definitions.
1.1 This Amendment is entered into a. with reference
to that certain Second Amended and Restated Loan Agreement
dated October 4, 1994, among Trustor, Additional Debtor,
Beneficiary and the Banks so defined therein (the "Original
Loan Agreement"), and b. in conjunction with an Amendment No. 1
to Loan Agreement of even date herewith among Trustor,
Additional Debtor and Beneficiary (the "Loan Agreement
Amendment") and certain other documents of even date herewith
that are described in the Loan Agreement Amendment and/or that
are otherwise being executed with reference thereto
(collectively, together with the Loan Agreement Amendment, this
Amendment and the Master Note and Discretionary Notes described
below, the "Modification Documents"). The Original Loan
Agreement, as modified from time to time (including by the Loan
Agreement Amendment), is referred to herein as the "Loan
Agreement."
1.2 The Modification Documents modify obligations
that are presently secured by the Deed of Trust, including
without limitation certain obligations evidenced by the "Notes"
so defined in the Original Loan Agreement and the Original Deed
of Trust (the "Original Notes"), each executed by Trustor.
Such modifications include, without limitation, an extension of
the maturity date of the Loan (as defined in the Original Deed
of Trust) and a change to the interest rate(s) applicable
thereto. Capitalized terms used and not otherwise defined
herein have the meanings set forth for them in the Loan
Agreement Amendment or, if not defined therein, have the
meanings set forth for them in the Original Loan Agreement.
1.3 As further described in the Loan Agreement
Amendment, Beneficiary has been appointed as the
"Administrative Agent" for the Banks under the Loan Agreement,
and the Loan Agreement Amendment provides that each reference
to the "Managing Agent" in any Loan Document (including without
limitation in the Deed of Trust) shall be deemed a reference to
the "Administrative Agent."
1.4 Also as further described in the Loan Agreement
Amendment, the Original Notes have been superseded and replaced
by a single "Master Note" of even date herewith that is so
defined in the Loan Agreement Amendment, which Master Note, in
the face principal amount of $62,278,433.79, has been made by
Trustor to the order of Beneficiary to collectively evidence
the Loans made by all of the Banks that were formerly evidenced
by a separate promissory note in favor of each Bank.
Notwithstanding the fact that the Master Note collectively
evidences all of such Loans, the Loan Agreement Amendment
further provides for the issuance of supplemental
"Discretionary Notes" (as defined in the Loan Agreement
Amendment) made by Trustor to a particular Bank, if requested
by that Bank, to evidence that Bank's Pro Rata Share of the
Loans. As used in this Amendment, "Notes" means, collectively,
the Master Note and any Discretionary Notes, in each case as
originally executed or as the same may from time to time be
supplemented, amended, renewed, extended, supplanted or
otherwise modified.
2. Modification of Secured Obligations. The Deed of
Trust is hereby modified to provide that it secures, in
addition to all other obligations now secured thereby,
a. Trustor's obligations under the Original Notes and under all
other existing Loan Documents that are presently secured by the
Deed of Trust, as such obligations and documents are
supplemented and/or otherwise modified pursuant to the
Modification Documents, b. Additional Debtor's obligations
under the existing Loan Documents that are presently secured by
the Deed of Trust, as such obligations and documents are
supplemented and/or otherwise modified pursuant to the
Modification Documents, c. Trustor's obligations under the
Master Note and under any Discretionary Notes that are executed
by Trustor from time to time, and d. all other obligations of
Trustor and/or Additional Debtor to Beneficiary, Trustee and/or
the Banks, as applicable, under all other Modification
Documents.
3. Addresses for Notices. All notices, demands,
approvals and other communications to Trustor and/or
Beneficiary with respect to the Deed of Trust shall be in
writing and be delivered to the appropriate party at its
address as follows:
If to Trustor:
Tropicana Enterprises
c/o Tropicana Hotel/Casino
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
If to Beneficiary:
Bank of America NT&SA
000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxx, Managing Director
with a copy to:
Bank of America NT&SA
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Managing Director
Addresses for notice may be changed from time to time by
written notice to all other parties. All communications shall
be effective when actually received; provided, however, that
nonreceipt of any communication as the result of a change of
address of which the sending party was not notified or as the
result of a refusal to accept delivery shall be deemed receipt
of such communication.
4. No Other Amendment. Except as expressly modified
hereby, the Deed of Trust remains in full force and effect.
5. Miscellaneous. This Amendment shall bind, and
shall inure to the benefit of, the successors and assigns of
the parties. This document may be executed in counterparts
with the same force and effect as if the parties had executed
one instrument, and each such counterpart shall constitute an
original hereof.
IN WITNESS WHEREOF, Trustor, Additional Debtor and
Beneficiary have caused this Amendment to be duly executed as
of the date first written above.
"Trustor and Debtor":
TROPICANA ENTERPRISES,
a Nevada general partnership,
By:ADAMAR OF NEVADA,
a Nevada corporation, general
partner
By:____________________________
Xxxxxx X.
Xxxxxxxxx, Xx.
Vice President and
Secretary
"Additional Debtor":
HOTEL RAMADA OF NEVADA,
a Nevada corporation
By:_________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
"Beneficiary":
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:_________________________________
Xxxxxx Xxxxxxx, Vice President
ACKNOWLEDGMENTS
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Adamar of Nevada, a Nevada corporation, as general
partner of Tropicana Enterprises, a Nevada general partnership.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX X. XXXXXXXXX, XX. as Vice President and
Secretary of Hotel Ramada of Nevada, a Nevada corporation.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
STATE OF ____________ )
) ss
COUNTY OF ___________ )
This instrument was acknowledged before me on May ____,
1998 by XXXXXX XXXXXXX, as Vice President of Bank of America
National Trust and Savings Association, a national banking
association.
____________________________________
(signature of notarial officer)
____________________________________
(Title and rank)
My commission expires: __________________
Exhibit C-1
MASTER NOTE
$62,278,433.79 May 28, 1998
Las Vegas, Nevada
FOR VALUE RECEIVED, TROPICANA ENTERPRISES, a Nevada
general partnership ("Borrower"), promises to pay to the order
of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent for the Banks under the Loan Agreement
described below ("the Banks", each of which is a direct
beneficiary of this Master Note) the principal amount of SIXTY-
TWO MILLION TWO HUNDRED SEVENTY-EIGHT THOUSAND FOUR HUNDRED
THIRTY-THREE AND 79/100 DOLLARS ($62,278,433.79), payable as
hereinafter set forth. The undersigned promises to pay inter-
est on the principal amount hereof remaining unpaid from time
to time from the date hereof until the date of payment in full,
payable as hereinafter set forth.
1. The Loan Agreement and the Other Loan Agreement;
Incorporated Terms and Provisions. This Note is the Master
Note referred to in and delivered pursuant to the Second
Amended and Restated Loan Agreement dated as of October 4,
1994, among Borrower, the Banks, Lead Managers, Co-Agents and
Co-Managing Agents referred to therein, and Bank of America
National Trust and Savings Association, as Managing Agent, as
amended by Amendment No. 1 to Loan Agreement dated as of
May 28, 1998 (the "Loan Agreement") pursuant to which Bank of
America National Trust and Savings Association has been
appointed as Administrative Agent for the Banks. Terms defined
in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan
Agreement.
Concurrently with the execution and delivery of the
Loan Agreement, the Banks, Bankers Trust Company and Societe
Generale, as Documentation Agents, Bank of Scotland, Credit
Lyonnais Los Angeles Branch and PNC Bank, National Association,
as Co-Agents, and the Administrative Agent have entered into an
Amended and Restated Reducing Revolving Loan Agreement of even
date herewith (as supplemented, modified, amended, renewed,
extended or supplanted from time to time, the "Other Loan
Agreement") with Aztar Corporation, a Delaware corporation
("Parent"). Certain other terms and provisions of the Other
Loan Agreement are incorporated herein by reference as set
forth below.
2. Privileges of the Banks. Each Bank is a ratable
holder and entitled to the benefits of this Master Note. The
Banks are also entitled to all of the rights, remedies,
benefits and privileges provided for in the Loan Agreement as
originally executed or as it may from time to time be supple-
mented, modified or amended. The Loan Agreement, among other
things, contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events upon the
terms and conditions therein specified.
3. Amortization. The principal indebtedness
evidenced by this Master Note shall be payable on the last day
of each calendar month (the "Amortization Date") during the
periods described below by the amount set forth opposite that
period, provided that the then remaining principal indebtedness
outstanding under this Master Note shall be payable on June 30,
2003 (such maturity date, or such later maturity date as may
then be in effect is referred to herein as the "Maturity
Date").
Period Amount
May 31, 1998 thru Dec. 31, 1998 $256,246.00
Jan. 31, 1999 thru Dec. 31, 1999 $274,770.08
Jan. 31, 2000 thru Dec. 31, 2000 $294,633.25
Jan. 31, 2001 thru Dec. 31, 2001 $315,932.25
Jan. 31, 2002 thru Dec. 31, 2002 $341,721.31
Jan. 31, 2003 thru May 31, 2003 $365,641.80
The principal indebtedness evidenced by this Master Note may be
prepaid at any time, and from time to time, in whole or in part
without premium or penalty, provided that, subject to Section 8
hereof each prepayment shall be applied to installments due
hereunder in the inverse order of their maturity.
4. Extension of Maturity Date; Mandatory Assignment
of this Master Note. During the period commencing on April 1,
1999 and ending on May 31, 1999, Borrower may by written
request delivered to the Administrative Agent (with sufficient
copies thereof for the Banks) request that the Maturity Date of
this Master Note be extended for one year, provided that a
similar request for extension of the Other Loan Agreement is
concurrently submitted by Parent pursuant to Section 2.11 of
the Other Loan Agreement.
The Administrative Agent shall promptly forward the
request for extension, and any accompanying materials, to the
Holder and the other Banks. The Holder, in its sole and
absolute discretion, shall determine whether to grant the
request for extension. Each Bank, in its sole and absolute
discretion, shall determine whether to grant the request for
extension. Borrower at its option may offer to pay an
extension fee to each Bank which consents to such extension,
but if such a fee is offered, it shall be a fee offered ratably
to each consenting Bank in accordance with that Bank's Pro Rata
Share. The Banks agree to use their best efforts to respond to
the request for extension within thirty Banking Days after
receipt of the request for extension; failure to respond shall
in no event be deemed to be a consent to the extension.
If all of the Banks notify the Administrative Agent
in writing that they consent to the requested extension, the
Administrative Agent shall notify Borrower and the Banks in
writing of such an extension and the Maturity Date shall
(subject to payment of any agreed-upon extension fee)
automatically be extended for one year. The Administrative
Agent shall notify Borrower and the Banks in writing of such an
extension.
If Banks holding at least 75% of the Loans consent to
the request for extension, but one or more Banks (each a
"Non-Consenting Bank") notify the Administrative Agent that it
will not consent to the request for extension (or fail to
notify the Administrative Agent in writing of its consent to
the extension), Borrowers may cause such Non-Consenting Bank to
be removed as a Bank under the Loan Agreement pursuant to
Section 8.20 thereof. If such removal is accomplished by
assignment to an Eligible Assignee and such Eligible Assignee
notifies the Administrative Agent in writing that it consents
to the request for extension, then the request for extension
shall be granted with the effect as set forth above. If such
removal is accomplished by an assignment of the Loans of the
Non-Consenting Bank being removed to the remaining Banks
pursuant to Section 8.20(b) of the Loan Agreement, then the
Administrative Agent shall notify all of the Banks in writing
thereof and each Bank shall have the right to notify the
Administrative Agent within ten Banking Days after receipt of
such notice that such Bank elects to be treated as a
Non-Consenting Bank, in which case it shall be so treated as
aforesaid.
If a request for extension is made during the April
1, 1999 through May 31, 1999 period as aforesaid and the
requested extension is granted by the Banks, Borrower shall
have the right to request a further one year extension of the
Maturity Date during the period from April 1, 2000 through May
31, 2000. All of the procedures and conditions applicable to
the earlier request for extension shall apply to any such
request for extension.
If either or both of the requested extensions is
granted, the principal amount payable on each Amortization Date
in the period from June 30, 2003 through December 31, 2003
shall be $365,641.80, the principal amount payable on each
Amortization Date in the period from January 31, 2004 through
December 31, 2004 shall be $391,236.73 and the amount payable
on each Amortization Date in the period from January 31, 2005
through May 31, 2005 shall be $418,623.30.
5. Interest Rates; General. Subject to Section 6
hereof, interest shall be payable on the principal amount
hereof remaining unpaid from time to time from the date thereof
until payment in full. Interest shall accrue at a fluctuating
rate per annum equal to the Alternate Base Rate plus the
Applicable Alternate Base Rate Margin (in each case, as defined
in the Other Loan Agreement) unless:
a. Borrower elects to have interest calculated
with respect to all or a portion of the Loan with reference to
the "Eurodollar Rate" in accordance with Section 7 hereof; or
b. the "Default Rate" is then applicable under
Section 10 hereof.
Each change in the interest rate under this Section 5 due to a
change in the Alternate Base Rate shall take effect
simultaneously with the corresponding change in the Alternate
Base Rate. Interest shall accrue and be payable both before
and after default and before and after maturity and judgment,
with interest on overdue interest to bear interest at the
Default Rate described in the Other Loan Agreement, to the
fullest extent permitted by applicable law.
6. Limitation on Maximum Rates of Interest. The
Other Loan Agreement provides for determination of interest
rates based upon (a) the Alternate Base Rate plus the
Applicable Alternate Base Rate Margin or (b) the Eurodollar
Rate plus the Applicable Eurodollar Rate Margin. The
Applicable Alternate Base Rate Margin and the Applicable
Eurodollar Rate Margin are determined on the basis of certain
financial performance ratios relating to Aztar Corporation and
its subsidiaries. While this Note refers to the Other Loan
Agreement for the determination of interest rates indices and
margins, in no event shall (a) the Applicable Alternate Base
Rate Margin relative to the Loans evidenced by this Note exceed
1.00% per annum or (b) the Applicable Eurodollar Rate Margin
relative to the Loans evidenced by this Note exceed 2.25% per
annum.
7. Eurodollar Rate Loans. By request to the
Administrative Agent, Borrower may elect to have interest with
respect to all or one or more portions of the Loans (each a
"Eurodollar Tranche") calculated on the basis of the then
applicable Eurodollar Rate plus the Applicable Eurodollar
Margin (in each case as defined and as determined in the Other
Loan Agreement). Each such request shall be made pursuant to a
Request for Rate Designation in the form previously supplied by
the Administrative Agent to Borrower or another form acceptable
to the Administrative Agent (or pursuant to a telephonic or
other request submitted in the manner described in Section 2.1
of the Other Loan Agreement). The Eurodollar Rate and the
Applicable Eurodollar Margin for each Eurodollar Tranche shall
be determined as set forth in the Other Loan Agreement,
provided that:
a. Unless the Administrative Agent and the
Requisite Banks otherwise consent, there shall be no more than
ten (10) Interest Periods with respect to Eurodollar Tranches
in effect at any one time.
b. No Eurodollar Tranche may be requested
during the existence of any Event of Default or any event or
circumstance which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default.
c. Nothing contained herein shall require any
Bank to fund any portion of the Loans in the Designated
Eurodollar Market (as defined and as determined in the Other
Loan Agreement).
8. Incorporation of Certain Eurodollar Provisions
of the Other Loan Agreement. The provisions of Sections 3.8 of
the Other Loan Agreement (which Section sets forth the manner
in which Eurodollar Loans are made and the interest rates
therefor are calculated) are hereby incorporated by reference
as though set forth herein in full, mutatis mutandis.
Capitalized terms used in Section 3.8 of the Other Loan
Agreement are used (for the purposes of such incorporated
provisions only) with the meanings set forth for those terms in
the Other Loan Agreement.
9. Increased Commitment Costs. If any Bank
determines in good faith that the introduction after the date
hereof of any applicable law, rule, regulation or guideline
regarding capital adequacy, or any change therein or any change
in the interpretation or administration thereof by any central
bank or other Governmental Authority charged with the
interpretation or administration thereof, or compliance by that
Bank (or its Eurodollar Lending Office (as defined and as
determined in the Other Loan Agreement)) or any corporation
controlling that Bank, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of
law) of any such central bank or other authority, affects or
would affect the amount of capital required or expected to be
maintained by that Bank or any corporation controlling that
Bank and (taking into consideration that Bank's or such
corporation's policies with respect to capital adequacy and
that Bank's desired return on capital) determines in good faith
that the amount of such capital is increased, or the rate of
return on capital is reduced, as a consequence of its
obligations under the Loan Agreement or this Master Note, then,
within ten (10) Banking Days after demand by that Bank,
Borrower shall pay to that Bank, from time to time as specified
in good faith by that Bank, additional amounts sufficient to
compensate that Bank in light of such circumstances, to the
extent reasonably allocable to such obligations under the Loan
Agreement or this Master Note, provided that Borrower shall not
be obligated to pay any such amount which arose prior to the
date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is
ninety (90) days preceding the date of such demand. Any
request for compensation by a Bank under this Section shall set
forth the basis upon which it has been determined that such an
amount is due from Borrower, a calculation of the amount due,
and a certification that the corresponding costs or diminished
rate of return on capital have been incurred or sustained by
that Bank. If Borrower becomes obligated to pay a material
amount under this Section to any Bank, that Bank will be
subject to removal in accordance with Section 8.20 of the Loan
Agreement; provided that Borrower shall have paid such amount
to the Bank and that Borrower, within the thirty (30) day
period following the date of such payment, shall have notified
that Bank in writing of its intent to so remove the Bank. Each
Bank's determination of such amounts shall be conclusive in the
absence of manifest error.
10. Default Interest. If any installment of
principal or interest or any fee or cost or other amount
payable hereunder or under any Loan Document to the Banks is
not paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus the Applicable Alternate
Base Rate Margin plus 2% (the "Default Rate"), to the fullest
extent permitted by applicable laws. Accrued and unpaid
interest on past due amounts (including, without limitation,
interest on past due interest) shall be compounded monthly, on
the last day of each calendar month, to the fullest extent
permitted by applicable laws and shall be payable upon demand.
11. Payment of Interest. All interest hereunder
which is calculated with reference to the Alternate Base Rate
and which has accrued on each September 30, December 31,
March 31 and June 30, and on the date of any prepayment of this
Master Note, shall be due and payable on that day. All
interest accrued on the portion of the Loans for which interest
is calculated on the basis of the Eurodollar Rate shall be due
and payable:
a. For Eurodollar Tranches with Eurodollar
Periods of a term of three months or less on the last day
of the related Eurodollar Period; and
b. For each other Eurodollar Tranche, on the
date which is three months after the date such Eurodollar
Tranche began (and, in the event that all of the Banks
have approved a Eurodollar Tranche with a Eurodollar
Period longer than six months, every three months
thereafter through the last day of the Eurodollar Period)
and on the last day of the related Eurodollar Period.
12. Computation of Interest and Fees. Computation
of interest on Alternate Base Rate Loans shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed; computation of interest on
Eurodollar Rate Tranches and all fees under this Agreement
shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed. Borrower acknowledges that such
latter calculation method will result in a higher yield to the
Banks than a method based on a year of 365 or 366 days.
Interest shall accrue on the Loans for the day on which they
are made; interest shall not accrue on Loans, or any portion
thereof, for the day on which the Loans or such portion is
paid. Notwithstanding anything in this Agreement to the
contrary, interest in excess of the maximum, amount permitted
by applicable laws shall not accrue or be payable hereunder,
and any amount paid as interest hereunder which would otherwise
be in excess of such maximum permitted amount shall be treated
instead as a payment of principal.
13. Non-Banking Days. If any payment to be made by
Borrower or HRN under any Loan Document shall come due on a day
other than a Banking Day, payment shall instead be considered
due on the next succeeding Banking Day and the extension of
time shall be reflected in computing interest and fees.
14. Manner and Treatment of Payments.
a. Each payment hereunder (except payments
pursuant to Sections 8 and 9 of this Master Note) or under
any other Loan Document shall be made to the
Administrative Agent, at the Administrative Agent's
Office, for the account of the Banks, in immediately
available funds not later than 11:00 a.m., California
time, on the day of payment (which must be a Banking Day).
All payments received after such time, on any Banking Day,
shall be deemed received on the next succeeding Banking
Day. The amount of all payments received by the
Administrative Agent for the account of the Banks shall be
immediately paid by the Administrative Agent to the Banks
in immediately available funds and, if such payment was
received by the Administrative Agent by 11:00 a.m.,
California time, on a Banking Day and not so made avail-
able to the account of a the Banks on that Banking Day,
the Administrative Agent shall reimburse the Banks for the
cost to the Banks of funding the amount of such payment at
the Federal Funds Rate (as defined and as determined in
the Other Loan Agreement). All payments shall be made in
lawful money of the United States of America.
b. Each payment or prepayment on account of
the Loans shall be applied pro rata to the Banks in
accordance with each Banks' Pro Rata Share.
c. Each payment of any amount payable by
Borrower or HRN under the Loan Agreement, this Master Note
or any other Loan Document shall be made free and clear
of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental
Authority, central bank or comparable authority, excluding
(i) taxes imposed on or measured in whole or in part by
its overall net income or gross receipts and franchise
taxes imposed on the Banks, by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or
maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business," (ii) any
withholding taxes or other taxes based on net income
imposed by the United States of America (other than
withholding taxes and taxes based on net income resulting
from or attributable to any change in any law, rule or
regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Authority) and (iii) any withholding taxes or
other taxes based on net income imposed by the United
States of America for any period with respect to which it
has failed to provide Borrower with the appropriate form
or forms required by Section 10.8 of the Loan Agreement,
to the extent such forms are then required by applicable
laws (all such non-excluded taxes, assessments or other
charges being hereinafter referred to as "Taxes"). To the
extent that Borrower is obligated by applicable laws to
make any deduction or withholding on account of Taxes from
any amount payable to any of the Banks under this
Agreement, Borrower shall (i) make such deduction or
withholding and pay the same to the relevant Governmental
Authority and (ii) pay such additional amount to the Banks
as is necessary to result in the Banks receiving a net
after-Tax amount equal to the amount to which the Banks
would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such
payment results in an excess payment or credit to any of
the Banks on account of such Taxes, the relevant Banks
shall promptly refund such excess to Borrower. If
Borrower becomes obligated to pay a material amount under
this Section to any Bank, that Bank will be subject to
removal in accordance with Section 8.20; provided that
Borrower shall have paid such amount to that Bank and that
Borrower, within the thirty (30) day period following the
date of such payment, shall have notified the Bank in
writing of its intent to so remove the Bank.
15. Funding Sources. Nothing in the Loan Documents
shall be deemed to obligate any Bank to obtain the funds for
its Pro Rata Share of the Loans in any particular place or man-
ner or to constitute a representation by any Bank that it has
obtained or will obtain such funds in any particular place or
manner.
16. Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Agent or any Bank not to require
payment of any interest (including interest arising under
Section 10), fee, cost or other amount payable under any Loan
Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Agent's or such Bank's right to
require full payment of any interest (including interest
arising under Section 10), fee, cost or other amount payable
under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on
any other or subsequent occasion.
17. Administrative Agent's Right to Assume Payments
Will be Made by Borrower. Unless the Administrative Agent
shall have been notified by Borrower prior to the date on which
any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payments, the
Administrative Agent may, in its discretion, assume that
Borrower has remitted such payments when so due and the
Administrative Agent may, in its discretion and in reliance
upon such assumption, make available to each Bank on such
payment date an amount equal to each Bank's share of such
assumed payments. If Borrower has not in fact remitted such
payment to the Administrative Agent, the Banks shall forthwith
on demand repay to the Administrative Agent the amount of such
assumed payment made available to the Banks, together with
interest thereon in respect of each day from and including the
date such amount was made available by the Administrative Agent
to the Banks to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
18. Fee Determination Detail. The Banks, shall
provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Banks under this Master
Note has been determined, concurrently with demand for such
payment.
19. Survivability. All of Borrower's obligations
under Sections 8 and 9 shall survive for ninety (90) days fol-
lowing the date on which all Loans hereunder are fully paid.
20. The Bank's Records. The Banks shall use its
best efforts to keep a record of payments received by it with
respect to this Master Note, and such record shall be
presumptive evidence of the amounts owing under this Master
Note. The Banks may make notations on the attached Schedule B
of such payments or may use any other manner of recordation of
payments which the Banks deem appropriate. Subject to
Section 9.7(g) of the Loan Agreement, such record shall, as
against Borrower, be presumptive evidence of the amounts owing
under this Master Note. Notwithstanding the foregoing sen-
tence, the Banks shall not be liable to Borrower or HRN for any
failure to keep such a record.
21. Collateral. This Master Note is secured, inter
alia by that the Second Amended Deed of Trust and Security
Agreement With Assignment of Rents referred to in the Loan
Agreement, as amended by Amendment No. 1 thereto dated as of
the date of this Master Note, and as the same may hereafter be
amended.
22. Costs of Collection. The undersigned hereby
promises to pay all costs and expenses of each Bank incurred in
collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any Bank's rights
hereunder, including attorneys' fees and disbursements, whether
or not an action is filed in connection therewith.
23. Waiver. The undersigned hereby waives
presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest and any other notice or formality,
to the fullest extent permitted by applicable laws.
24. Governing Laws. This Master Note shall be
delivered to and accepted by the Administrative Agent on behalf
of each of the Banks in the State of Nevada, and shall be
governed by, and construed and enforced in accordance with, the
local laws thereof.
25. Non-Recourse. Notwithstanding anything in this
Master Note, the Loan Agreement, the Deed of Trust or any other
Loan Document or Expansion Financing Document to the contrary,
(i) no general partner of Borrower (including, specifically,
any member of the Xxxxx Group, as defined in the Borrower's
Partnership Agreement or Adamar), shall have personal liability
for or be liable or subject to any deficiency judgment for,
payment of any portion of the obligations evidenced by this
Master Note or any other sums payable to Administrative Agent
or the Banks under this Master Note, the Loan Agreement, the
Deed of Trust or any other Loan Document or Expansion Financing
Document, it being expressly covenanted and agreed that no
personal liability or responsibility is assumed or at any time
shall be asserted or enforced against any of the partners of
Borrower, or their respective heirs, successors or assigns, on
account of any representation, warranty, covenant, obligation,
understanding or agreement contained in this Master Note or any
Loan Document or Expansion Financing Document, and (ii) HRN
shall not have any personal liability for the payment of any
sums to Administrative Agent or the Banks under this Master
Note, the Loan Agreement and the Loan Documents except as
specifically set forth in the Assignment of HRN Master Lease
Rents.
Without limiting or affecting in any manner
whatsoever the exculpatory provisions of this Section 25, and
subject to the provisions thereof, Administrative Agent and the
Banks, in exercising their rights, powers and remedies under
the Loan Documents, including the rights, powers and remedies
described in Section 8.8 of the Loan Agreement, may enforce the
Loan Documents against Borrower by any proceeding in law or in
equity and recover all amounts owing to Administrative Agent or
the Banks from Borrower under the Loan Documents solely and
exclusively from the Collateral and Borrower's other assets,
whether now owned or hereafter acquired, and in the event that
any suit shall be brought against Borrower upon the Notes or
any other Loan Documents, whether before or after maturity, by
acceleration or passage of time, or otherwise, for damages or a
money judgment, any such judgment obtained in, or as a result
of, such suit shall be enforceable and/or enforced solely and
exclusively against the Collateral and the other assets of
Borrower (such assets not including any right to require any
partner of Borrower to contribute funds, debt or equity, to
Borrower, whether the capital account of such partner be
positive or negative, it being understood that the exculpation
of the partners of Borrower under this Section 25 shall extend
to any obligation of such partners to Borrower in their
capacity as partners).
TROPICANA ENTERPRISES, a Nevada
general partnership
By: Adamar of Nevada, a Nevada
corporation
Its: General Partner
By:________________________
Its: ________________________
PAYMENTS OF PRINCIPAL
Date Amount of Unpaid Notation
Principal Paid Principal Made by
Balance
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Exhibit C-2
DISCRETIONARY PROMISSORY NOTE
$______________ ______________
Las Vegas, Nevada
FOR VALUE RECEIVED, TROPICANA ENTERPRISES, a Nevada
general partnership ("Borrower"), promises to pay to the order
of __________________ ("the Bank") the principal amount of
_____________________ ($________________), payable as
hereinafter set forth. The undersigned promises to pay inter-
est on the principal amount hereof remaining unpaid from time
to time from the date hereof until the date of payment in full,
payable as hereinafter set forth.
1. The Loan Agreement and the Other Loan Agreement;
Incorporated Terms and Provisions. This Note is one of the
Discretionary Notes referred to in and delivered pursuant to
the Second Amended and Restated Loan Agreement dated as of
October 4, 1994, among Borrower, the Banks, Lead Managers, Co-
Agents and Co-Managing Agents referred to therein, and Bank of
America National Trust and Savings Association, as Managing
Agent (the "Loan Agreement") as amended by Amendment No. 1
dated as of May 28, 1998, pursuant to which Bank of America
National Trust and Savings Association has been appointed as
Administrative Agent for the Banks. . Terms defined in the
Loan Agreement and not otherwise defined herein are used herein
with the meanings defined for those terms in the Loan
Agreement.
2. Relationship to Master Note. This Discretionary
Note evidences Loans made by the Bank to Borrower pursuant to
the Loan Agreement and the Master Note referred to in the Loan
Agreement, and shall not be duplicatively enforced with the
Master Note. Principal and interest hereunder shall be made in
the manner, on the dates and at the rates set forth in the
Master Note.
3. Costs of Collection. The undersigned hereby
promises to pay all costs and expenses of the Bank incurred in
collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of the Bank's rights
hereunder, including attorneys' fees and disbursements, whether
or not an action is filed in connection therewith.
4. Waiver. The undersigned hereby waives
presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest and any other notice or formality,
to the fullest extent permitted by applicable laws.
5. Governing Laws. This Discretionary Note shall
be delivered to and accepted by the Bank, or by the
Administrative Agent on its behalf, in the State of Nevada, and
shall be governed by, and construed and enforced in accordance
with, the local laws thereof.
6. Non-Recourse. Notwithstanding anything in this
Discretionary Note, the Loan Agreement, the Deed of Trust or
any other Loan Document or Expansion Financing Document to the
contrary, (i) no general partner of Borrower (including,
specifically, any member of the Xxxxx Group, as defined in the
Borrower's Partnership Agreement or Adamar), shall have
personal liability for or be liable or subject to any
deficiency judgment for, payment of any portion of the
obligations evidenced by this Discretionary Note or any other
sums payable to Administrative Agent or the Bank under this
Discretionary Note, the Loan Agreement, the Deed of Trust or
any other Loan Document or Expansion Financing Document, it
being expressly covenanted and agreed that no personal
liability or responsibility is assumed or at any time shall be
asserted or enforced against any of the partners of Borrower,
or their respective heirs, successors or assigns, on account of
any representation, warranty, covenant, obligation,
understanding or agreement contained in this Discretionary Note
or any Loan Document or Expansion Financing Document, and
(ii) HRN shall not have any personal liability for the payment
of any sums to Administrative Agent or the Bank under this
Discretionary Note, the Loan Agreement and the Loan Documents
except as specifically set forth in the Assignment of HRN
Master Lease Rents.
Without limiting or affecting in any manner
whatsoever the exculpatory provisions of this Section 6, and
subject to the provisions thereof, Administrative Agent and the
Banks, in exercising their rights, powers and remedies under
the Loan Documents, including the rights, powers and remedies
described in Section 8.8 of the Loan Agreement, may enforce the
Loan Documents against Borrower by any proceeding in law or in
equity and recover all amounts owing to Administrative Agent or
the Banks from Borrower under the Loan Documents solely and
exclusively from the Collateral and Borrower's other assets,
whether now owned or hereafter acquired, and in the event that
any suit shall be brought against Borrower upon the Notes or
any other Loan Documents, whether before or after maturity, by
acceleration or passage of time, or otherwise, for damages or a
money judgment, any such judgment obtained in, or as a result
of, such suit shall be enforceable and/or enforced solely and
exclusively against the Collateral and the other assets of
Borrower (such assets not including any right to require any
partner of Borrower to contribute funds, debt or equity, to
Borrower, whether the capital account of such partner be
positive or negative, it being understood that the exculpation
of the partners of Borrower under this Section 6 shall extend
to any obligation of such partners to Borrower in their
capacity as partners).
TROPICANA ENTERPRISES, a Nevada
general partnership
By: Adamar of Nevada, a Nevada
corporation
Its: General Partner
By:________________________
Its: ______________________
PAYMENTS OF PRINCIPAL
Unpaid
Amount of Principal Notation
Date Principal Paid Balance Made by
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
EXHIBIT D
GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
THIS GLOBAL ASSIGNMENT AND RELEASE AGREEMENT
("Agreement") dated as of May 28, 1998 is entered into by the
Assignors and Assignees described on the signature pages hereto
with reference to (a) the Reducing Revolving Loan Agreement
dated as of October 4, 1994 (the "Aztar Loan Agreement") among
Aztar Corporation ("Aztar") and certain of its Subsidiaries
(the "Co-Borrower Subsidiaries") with such Co-Borrower
Subsidiaries as joint and several co-borrowers, the Banks
therein named, and Bank of America National Trust and Savings
Association, as Managing Agent and (b) the Second Amended and
Restated Loan Agreement dated as of October 4, 1994 (the
"Tropicana Loan Agreement") among Tropicana Enterprises
("Tropicana"), the Banks therein named, and Bank of America
National Trust and Savings Association, as Managing Agent. The
Aztar Loan Agreement and the Tropicana Loan Agreement are
herein collectively referred to as the "Existing Loan
Agreements". The parties hereto agree with reference to the
following facts:
A. Each of the Assignors is party to the Aztar Loan
Agreement with the percentage interests in the credit
facilities provided to the Co-Borrower Subsidiaries
thereunder set forth on Schedule A hereto. Each of the
Assignors is also party to the Tropicana Loan Agreement
with the percentage interests in the credit facilities
provided to Tropicana thereunder set forth on Schedule B
hereto.
B. As of the date hereof, the principal amount of the
Obligations under the Aztar Loan Agreement and the
principal amount of the Obligations under the Tropicana
Loan Agreement are as set forth on Schedule C hereto.
C. Immediately following the effectiveness of this
Agreement, (i) the Aztar Loan Agreement shall be amended
and restated, as to a portion thereof, pursuant to an
Amended and Restated Reducing Revolving Loan Agreement
(the "Amended Revolver") of even date herewith (under
which Aztar shall be the sole Borrower), (ii) a portion of
the Aztar Loan Agreement shall be evidenced by a Term Loan
Agreement (the "Term Loan Agreement") of even date
herewith and (iii) the Tropicana Loan Agreement shall be
amended pursuant to an Amendment No. 1 to Loan Agreement
of even date herewith (collectively, the "Amended
Agreements").
D. In anticipation of the execution of the Amended
Agreements, the parties desire to make the assignments
contemplated herein, so as to adjust their respective
percentage interests under the Amended Agreements.
E. Certain of the Banks who will hereby assign their
entire interest in the Existing Loan Agreements as set
forth on the signature page hereof (the "Exiting Banks")
shall hereby terminate their status as Banks under the
Existing Loan Agreements and shall not participate in the
Amended Agreements.
F. Pursuant to this Agreement, the Assignors will
release the Co-Borrower Subsidiaries as borrowers under
the Aztar Loan Agreement subject to their execution of the
Subsidiary Guaranty under the Amended Revolver and the
Term Loan Agreement.
The parties hereto hereby severally represent, warrant, assign,
accept and agree as follows:
1. Definitions. Capitalized terms used but
not defined herein are used with the meanings set forth for
such terms in the Aztar Loan Agreement. As used in this
Agreement, the following capitalized terms shall have the
meanings set forth below:
"Assignee" means (a) as to the Aztar Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in (i) Column II of
Schedule A hereto as to the Amended Revolver and
(ii) Column III of Schedule A hereto as to the Term Loan
Agreement and (b) as to the Tropicana Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in Column II of Schedule B
hereto.
"Assigned Pro Rata Share" means, as to each Bank and
each of the Amended Agreements, the amount and percentage
interest assigned or accepted by that Bank under that Loan
Agreement, as detailed on Schedules A and B.
"Assignor" means (a) as to the Aztar Loan Agreement,
those of the Banks having a positive amount set forth
opposite the name of that Bank in Column I of Schedule A
hereto and (b) as to the Tropicana Loan Agreement, those
of the Banks having a positive amount set forth opposite
the name of that Bank in Column I of Schedule B hereto.
"Borrowers" means, as of the Effective Date, Aztar
and Tropicana.
"Effective Date" means the date upon which the
Amended Agreements become effective and the payments
described in Section 6 have been made.
"Exiting Bank" means each Bank which hereby assigns
its entire interest in the Existing Loan Agreements.
"Loan Documents" means the Loan Documents described
in the Aztar Loan Agreement and the Tropicana Loan
Agreement.
"Managing Agent" means Bank of America National Trust
and Savings Association, in its capacity as Managing Agent
for each of the Banks under the Existing Loan Agreements.
"Obligations" means, collectively, the obligations
and indebtedness of the Co-Borrower Subsidiaries and
Tropicana, respectively, under the Existing Loan
Agreements.
"Pro Rata Shares" means, as the context requires, the
percentage interest of the relevant Bank of the
commitments under the Aztar Loan Agreement or Tropicana
Loan Agreement.
2. Representations and Warranties of the Assignors.
Each Assignor severally represents and warrants, each for
itself and not for any other Assignor, to the Assignees as
follows:
a. As of the date hereof, the Pro Rata Shares of
such Assignor under the Loan Agreements are as set forth
on Schedule A and Schedule B, in each case without giving
effect to assignments thereof which have not yet become
effective;
b. Such Assignor is the legal and beneficial owner
of such Assignor's Assigned Pro Rata Share and such
Assignor's Assigned Pro Rata Share is free and clear of
any adverse claim. Schedule C accurately reflects the
aggregate outstandings under the Existing Loan Agreements;
c. Such Assignor has full power and authority, and
has taken all action necessary, to execute and deliver
this Agreement and any and all other documents required or
permitted to be executed or delivered by it in connection
with this Agreement and to fulfill its obligations under,
and to consummate the transactions contemplated by, this
Agreement, and no governmental authorizations or other
authorizations are required in connection therewith;
d. This Agreement constitutes the legal, valid and
binding obligation of such Assignor.
The Assignors make no representation or warranty and assume no
responsibility with respect to the financial condition of
Borrowers or the performance by Borrowers of the Obligations,
and assume no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Existing Loan Agreements or the execution, legality, validity,
enforceability, genuineness, or sufficiency of the Existing
Loan Agreements or any Loan Document other than as expressly
set forth above.
3. Representations and Warranties of the Assignees.
Each Assignee hereby represents and warrants, for itself and
not for any other Assignee, to each Assignor as follows:
(a) Such Assignee has full power and authority,
and has taken all action necessary, to execute and deliver
this Agreement, and any and all other documents required
or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its
obligations under, and to consummate the transactions
contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in
connection therewith;
(b) This Agreement constitutes the legal, valid
and binding obligation of such Assignee;
(c) Such Assignee has independently and without
reliance upon the Managing Agent or any Assignor and based
on such documents and information as such Assignee has
deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Such Assignee
will, independently and without reliance upon the Managing
Agent or any Bank, and based upon such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under the Amended Agreements;
(d) Such Assignee has received copies of such
of the Existing Loan Agreements and the Amended
Agreements, related loan documents and financial
statements of Borrowers and their Affiliates as it has
requested;
(e) Such Assignee will perform in accordance
with their respective terms all of the obligations which
by the terms of the Amended Agreements are required to be
performed by it as a Bank; and
(f) Such Assignee is an Eligible Assignee.
4. Assignment and Acceptance; Release of Exiting
Banks.
(a) On the Effective Date and on the terms set
forth herein, each Bank under the Aztar Loan Agreement hereby
irrevocably sells, assigns and transfers, as an Assignor, its
Assigned Pro Rata Share under the Aztar Loan Agreement
(detailed as to percentage and amount in Column I of Schedule A
hereto):
(i) to each Bank which is an Assignee under the Amended
Revolver, its Assigned Pro Rata Share under the Amended
Revolver (detailed as to percentage and amount in Column
II of Schedule A hereto); and
(ii) to each Bank which is an Assignee under the Term Loan
Agreement, its Assigned Pro Rata Share under the Term Loan
Agreement (detailed as to percentage and amount in Column
III of Schedule A hereto).
Each Bank which is an Assignee under the Amended Revolver or
the Term Loan Agreement hereby irrevocably accepts, from each
such Assignor, an Assigned Pro Rata Share in the amount and
percentage interest detailed in Columns II and III,
respectively, of Schedule A hereto.
(b) On the Effective Date and on the terms set
forth herein, each Bank under the Tropicana Loan Agreement
hereby irrevocably sells, assigns and transfers, as an
Assignor, its Assigned Pro Rata Share under the Tropicana Loan
Agreement (detailed as to percentage and amount in Column I of
Schedule B hereto) to each Bank which is an Assignee under the
Tropicana Loan Agreement. Each Bank which is an Assignee under
the Tropicana Loan Agreement hereby irrevocably accepts, from
each such Assignor, an Assigned Pro Rata Share in the amount
and percentage interest detailed in Column II of Schedule B
hereto.
(c) On the Effective Date, each Bank which is
an Exiting Bank hereby accepts termination of its status as a
Bank under the Existing Loan Agreements, and all of the other
parties thereto hereby release such Exiting Banks from their
lending commitments and any other obligation under the Existing
Loan Agreements.
(d) As of the Effective Date, each Assignee
shall have the rights and obligations of a "Bank" under the
Loan Documents. Each Assignee hereby appoints and authorizes
the Managing Agent to take such action and to exercise such
powers under the Existing Loan Agreements as are delegated to
the Managing Agent by the Existing Loan Agreements.
5. Release of Co-Borrower Subsidiaries. On
the Effective Date, each Co-Borrower Subsidiary is released
from any further obligation as a co-borrower under the Aztar
Loan Agreement; provided that each such Co-Borrower Subsidiary
executes and delivers the Subsidiary Guaranty under the Amended
Revolver and the Term Loan Agreement.
6. Payment. On the Effective Date, and as a
condition precedent to the assignments contemplated hereby, (i)
Borrowers shall pay to each Bank through the Managing Agent all
interest, fees, and other amounts which have accrued and remain
unpaid under the Existing Loan Agreements as of the date hereof
and (ii) the Assignees shall pay to the Assignors through the
Managing Agent such principal amounts outstanding under the
Existing Loan Agreements as are necessary to result in each
Bank holding the percentage interest in the Amended Revolver
and Term Loan Agreement as set forth in Columns II and III,
respectively of Schedule A hereto (with any excess amount
advanced to Aztar as additional principal outstanding under the
Amended Revolver or Term Loan Agreement, as the case may be)
and each Bank holding the percentage interest in the Tropicana
Loan Agreement as is set forth in Column II of Schedule B
hereto. The Managing Agent shall advise each Bank of the
amounts to be so paid and (in the absence of written objection
from any Bank) the advice of the Managing Agent shall be
conclusively presumed to be correct. The Managing Agent may
require that each payment made by or to a Bank be net of any
amounts to be paid to or by that Bank. The Assignors and the
Assignees hereby agree that if any of them receives any payment
of interest, principal, fees or any other amount under the
Existing Loan Agreements, their respective Notes or any other
Loan Documents which is for the account of one of the other
parties hereto, it shall hold the same in trust for such party
to the extent of such party's interest therein and shall
promptly pay the same to such party.
7. Notes. Concurrently herewith each Bank is
redelivering its promissory notes under the Existing Loan
Agreements to counsel for the Managing Agent for cancellation
in consideration of the issuance of the new promissory notes to
be issued in connection with the Amended Agreements.
8. Further Assurances. The Assignors and the
Assignees further agree to execute and deliver such other
instruments, and take such other action, as any party hereto
may reasonably request in connection with the transactions
contemplated by this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LOCAL LAWS OF THE STATE OF NEVADA. FOR ANY DISPUTE ARISING
IN CONNECTION WITH THIS AGREEMENT, EACH ASSIGNEE HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEVADA.
10. Notices. All communications among the
parties or notices in connection herewith shall be in writing,
and shall be delivered in the manner set forth in the Aztar
Loan Agreement.
11. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors and assigns; provided, however, that no
Assignee shall assign its rights or obligations under this
Agreement without the prior written consent of each Assignor
and any purported assignment, absent such consent, shall be
void. Nothing contained in this Section shall restrict the
assignment by any Assignee of its rights under the Loan
Documents following the Effective Date.
12. Consent of Managing Agent and Borrowers.
By executing this Agreement in the space provided below, Bank
of America National Trust and Savings Association consents (in
its capacity as Managing Agent under each of the Existing Loan
Agreements) to each of the assignments described herein, and
waives the recordation fees payable to it to it as Managing
Agent pursuant to the Existing Loan Agreements in connection
with such assignments. Borrowers (while not a party to this
Agreement) have signed this Agreement below to evidence their
consent to such assignments.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officials, officers or agents thereunto duly authorized as of
the date first above written.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as Managing Agent
under each of the Loan Agreements)
By: _____________________________
Title: ____________________________
"Assignors"
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Xxxxx X. Xxxxx
Vice President
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx,
#0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:Xxxxx X. Xxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:Xxxxxxx Xxxxx
Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANKERS TRUST COMPANY
By_________________________________
Xxxxx Xxxx
Vice President
Address:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:Xxxxx Xxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SOCIETE GENERALE
By_________________________________
Xxxxxx X. Xxxxxxxx
First Vice President
Address:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
First Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy sent to:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx xxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: 9310) 000-0000
BANK OF SCOTLAND
By_________________________________
Xxxxx Xxxx-Tat
Vice President
Address:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx-Tat
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of Scotland
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CREDIT LYONNAIS LOS ANGELES BRANCH
By_________________________________
Xxxxxx X. Xxxxx
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxx Xxxx, Esquire
Legal Department
Credit Lyonnais, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By_________________________________
Xxxx X. Xxxxxxx
Vice President
Address:
PNC Bank, N.A.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ABN AMRO BANK, N.V.
By_________________________________
Xxxxxxx X. French
Group Vice President and Director
By_________________________________
Xxxxxxx Xxxxxxxxx
Assistant Vice President and
Credit Analyst
Address:
ABN AMRO Bank, N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By _________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
FIRST SECURITY BANK N.A., as an
Assignor and an Exiting Bank
By:___________________________
Xxxxx Xxxxxxxx
Vice President
Address:
First Security Bank N.A.
Commercial Banking Division
15 East 000 Xxxxx, Xxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
MASSMUTUAL HIGH YIELD PARTNERS LLC, as
an Assignor and an Exiting Bank
By:___________________________
Xxxxx Xxxxx
Title:_______________________
Address:
MassMutual High Yield Partners LLC
c/o Massachusetts Mutual Life
Insurance Co.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
_____________
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as an Assignor and an
Exiting Bank
By:_________________________________
Xxxx Xxxxxxxx
Title:_____________________________
Address:
Xxxxxxx Xxxxx Senior Floating Rate
Fund Inc.
Area 1B
c/o Merrill Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
_______________
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE SUMITOMO BANK, LIMITED, as an
Assignor and an Exiting Bank
By:___________________________________
Xxxxxxx X. Xxxxxxx
Vice President
Address:
The Sumitomo Bank, Limited
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
"Assignees"
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Xxxxx X. Xxxxx
Vice President
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx,
#0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: __________________________________
Xxxxxxx Xxxxxxx
Attorney-In-Fact
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANKERS TRUST COMPANY
By_________________________________
Xxxxx Xxxx
Vice President
Address:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SOCIETE GENERALE
By_________________________________
Xxxxxx X. Xxxxxxxx
First Vice President
Address:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
First Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy sent to:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx xxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: 9310) 000-0000
BANK OF SCOTLAND
By_________________________________
Xxxxx Xxxx-Tat
Vice President
Address:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx-Tat
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of Scotland
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CREDIT LYONNAIS LOS ANGELES BRANCH
By_________________________________
Xxxxxx X. Xxxxx
Vice President and Manager
Address:
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxx Xxxx, Esquire
Legal Department
Credit Lyonnais, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By_________________________________
Xxxx X. Xxxxxxx
Vice President
Address:
PNC Bank, N.A.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ABN AMRO BANK, N.V.
By_________________________________
Xxxxxxx X. French
Group Vice President and Director
By
_______________________________
Xxxxxxx Xxxxxxxxx
Assistant Vice President and
Credit Analyst
Address:
ABN AMRO Bank, N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By _________________________________
_______________________________
[Printed Name and Title]
Address:
Imperial Bank
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By_________________________________
Xxxx X. Xxxxx
Commercial Banking Officer
Address:
KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By_________________________________
Yasushi Satomi
Senior Vice President and Chief
Manager
Address:
The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: F. Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By_________________________________
_________________________________
[Printed Name and Title]
Address:
Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.
000 Xxxxx Xxxxx Xxxxxx, xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Vice President and
Portfolio Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
DEEPROCK & COMPANY,
By: Xxxxx Xxxxx Management,
as Investment Advisor
By_________________________________
_________________________________
[Printed Name and Title]
Address:
State Street Bank & Trust Company
Corporate Trust Division
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx XxXxxxx
Telecopier: (000) 000-0000 or (617)
000-0000
Telephone: (000) 000-0000
and
Xxxxx Xxxxx Management
Attention: Prime Rate Reserves
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The undersigned hereby consent to the assignments described
above and to the release of the Exiting Banks from their
lending commitments under the Loan Agreements:
AZTAR CORPORATION
ADAMAR OF NEW JERSEY, INC.
By: _______________________
Xxxx Xxxxxxxxx, Treasurer
RAMADA EXPRESS, INC.
AZTAR INDIANA GAMING CORPORATION
AZTAR MISSOURI GAMING CORPORATION
By: _______________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
TROPICANA ENTERPRISES
By: ADAMAR OF NEVADA
Its General Partner
By: _______________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
