EXHIBIT 10.1
AGREEMENT
This AGREEMENT (the "Agreement") is made and entered this 1st day of December,
2001 by and among Princesa Partners, a Florida general partnership (the
"Borrower"), and each of the lenders listed in the signature block hereto
(collectively, the "Lenders").
RECITALS
A. The Borrower and the Lenders entered into a Loan Agreement dated as of
October 22, 1998 (the "Loan Agreement") pursuant to which the Lenders made a
loan to Borrower in the amount of $8,400,000 (the "Loan") for the purposes set
forth in the Loan Agreement. All capitalized terms not otherwise defined herein
shall have the meanings provided for in the Loan Agreement.
B. The Loan is guaranteed by Xxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, and
Concorde Gaming Corporation (collectively, the "Guarantors").
C. In addition, the Loan was guaranteed by Bayfront Ventures, a Florida general
partnership ("Bayfront") as lessee of the Vessel from the Borrower pursuant to a
Guaranty, Subordination Agreement and Indemnity Agreement in favor of the
Lenders dated as of October 22, 1998 (the "Bayfront Agreement"). On March 31,
2000, Bayfront was dissolved and liquidated by operation of law when Concorde
Cruises, Inc. ("Cruises"), a South Dakota corporation 100% owned by Concorde
Gaming Corporation, became the sole partner and the Bayfront Agreement was
assumed by Cruises as the successor of Bayfront. The dissolution and liquidation
of Bayfront violated paragraph 19(a)(1) of the Bayfront Agreement.
D. The Borrower is in Default under Sections 7.1(c) and (d) of the Loan
Agreement in that Borrower has failed to comply with Section 6.13 of the Loan
Agreement for the four quarters ending September 30, 2000, the four quarters
ending December 31, 2000, the four quarters ending March 31, 2001 the four
quarters ending June 30, 2001, and the four quarters ending September 30, 2001,
and Bayfront and Cruises have failed to comply with paragraph 19(m) of the
Bayfront Agreement for the same periods.
E. The Borrower is also in Default under Section 7.1(d) of the Loan Agreement in
that Bayfront failed to comply with paragraph 19(a)(1) of the Bayfront Agreement
by failure to maintain its existence and under paragraph 19(f) of the Bayfront
Agreement because Bayfront and Cruises have failed to timely cure a default
under Bayfront's Revolving Promissory Note dated January 18, 2000 to Integra
Bank ("Integra") as the successor to the National City Bank of Evansville (the
"Line of Credit").
F. The occurrence and existence of the Defaults permit Lenders to exercise the
remedies provided for in the Loan Agreement, the Note, the Guaranties, the
Bayfront Agreement, the Mortgage, the Security Agreement and the other Loan
Documents and entitle Lenders to interest at the Default Rate for the period of
the Defaults.
G. At Borrower's request Lenders have forbeared from exercising their rights and
remedies under the Loan Documents, the Guaranties and the Bayfront Agreement.
H. Lenders are willing to waive solely the Events of Default recited in C, D and
E above, to waive a portion of the excess of interest at the Default Rate over
the interest actually paid by Borrower and to amend the Loan Documents in
certain respects, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the Recitals and the covenants herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Borrower acknowledges the accuracy of the Recitals and affirms
that the Loan is in default, that such default is material,
that the Lenders are entitled to exercise their rights and
remedies under the Loan Documents, the Bayfront Agreement, and
the Guaranties, and that Borrower has no claims, set-offs, or
defenses to payment by Borrower of the Loan.
2. Borrower acknowledges that as of October 22, 2001 Borrower was
obligated to Lenders in the principal amount of $6,267,602.34,
that no such amount has been paid or otherwise satisfied as of
the date hereof, that in addition Borrower's obligations
include all advances by Lenders from and after February 27,
2001, all service charges and Loan administration expenses
incurred on and after February 1, 2001 including without
limitation the costs of Lenders in negotiating and preparing
this Agreement and investigating any defaults, all interest
accrued from and after October 1, 2001, and the excess of
interest at the Default Rate over the interest actually paid
by Borrower for the period commencing on the date the first
Default occurred.
3. Borrower acknowledges, represents and warrants to Lenders that
the security interests granted to Lenders in the Collateral
pursuant to the Security Agreement and in the Vessel pursuant
to the Mortgage are and shall remain first and valid perfected
security interests therein and the security interests granted
to Lenders in the Bayfront Agreement were not affected by the
dissolution and liquidation of Bayfront and are and shall
remain first and valid perfected security interests.
4. Borrower represents and warrants to Lenders that no licenses,
contracts or other rights of Bayfront were terminated or are
subject to termination or, except for the Bayfront Agreement
and the Line of Credit, were breached or violated by the
dissolution and liquidation of Bayfront and that all such
licenses, contracts and other rights are in full force and
effect in favor of Cruises.
5. Provided that the following all occur prior to December 17,
2001, Lenders agree to waive effective December 17, 2001, the
Defaults set forth in Recitals C, D and E hereof, to waive the
collection of the excess of interest at the Default Rate over
interest actually paid by Borrower for the period prior to May
15, 2001 and to compute interest at the Loan Rate for the
period commencing May 15, 2001 pursuant to the First Amendment
to Loan Agreement attached hereto as Exhibit A rather than at
the Default Rate:
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a. Borrower delivers to Lenders on the date hereof an
Amendment to the Loan Agreement in the form attached
hereto as Exhibit A executed by the Borrower.
b. Borrower delivers to Lenders on the date hereof an
amendment to the Bayfront Agreement in the form
attached hereto as Exhibit B executed by Cruises.
c. Borrower delivers to Lenders on the date hereof
reaffirmations of the Guaranties by each of the
Guarantors in the form attached hereto as Exhibit C.
d. Borrower delivers to the Lenders evidence
satisfactory to Lenders that the Line of Credit is no
longer in default.
e. Borrower pays the excess of interest at the Default
Rate (as defined in the Amendment referred to in
Section 5(a) above) over the interest actually paid
for the period commencing on May 15, 2001 and
extending through October 31, 2001.
f. Borrower pays on the date hereof all Loan
administration expenses billed to Borrower to the
date hereof and within 15 calendar days from receipt
of a statement therefore all other Loan
administration expenses Including without limitation
the cost of the Lenders in negotiating and preparing
this Agreement.
g. No other Event of Default or Default under the Loan
Agreement as amended occurs.
h. Borrower delivers to Lenders a complete list of all
assets associated with the operation of the Vessel
including make, model and serial numbers where
available.
i. Borrower delivers to the Lenders on the date hereof a
Subordination Agreement in the form attached hereto
as Exhibit D from all individuals and entities under
common control with Borrower regarding any amounts
owed by Borrower or Cruises or any of Guarantors or
their subsidiaries to such entities.
j. Borrower delivers to Lenders an account agreement
satisfactory to the Lenders pursuant to Section 6.18
of the Loan Agreement as amended on or before
February 15, 2002.
k. Borrower delivers to Lenders on the date hereof a
First Amendment to the Servicing and Intercreditor
Agreement in the form attached hereto as Exhibit E
executed by the Borrower.
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1. Borrower delivers to Lenders the federal and state
tax returns for Xxxxx X. Xxxx for calendar year 2000.
m. Borrower delivers to Lenders on the date hereof
Uniform Commercial Code Forms UCC-1 for filing in
Florida and South Dakota executed by Cruises in the
form previously provided by Bayfront.
n. Borrower pays Lenders a forbearance fee of $25,000
with $12,500 paid on the date hereof and the balance
paid in three equal monthly installments on each
monthly anniversary hereof.
6. Upon occurrence of an Event of Default under the Loan
Agreement as amended pursuant to Section 5 hereof at anytime
after the date hereof, Lenders may at their option declare
Borrower's obligations under the Loan Documents to be
immediately due and payable without demand, presentment or
other notice of any kind, all of which are hereby expressly
waived and thereafter Lenders shall be entitled to immediately
exercise all rights and remedies under the Loan Documents, the
Guaranties and the Bayfront Agreement. Except as modified by
the amendments provided for in Section 5 hereof, the Borrower,
Guarantors and Cruises shall continue to be bound by the Loan
Documents, the Guaranties and the Bayfront Agreement after the
date hereof.
7. The provisions of Article VIII of the Loan Agreement shall be
applicable to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PRINCESA PARTNERS
By: Conami, Inc., its general partner
By: /s/ Xxxxx X. Xxxx
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Its President
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By: Concorde Cruises, Inc., its general
partner
By: /s/ Xxxxx X. Xxxx
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Its President
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INTEGRA BANK, as successor to The
National City Bank of Evansville, for
itself and for FIRST NATIONAL BANK, LINN
COUNTY BANK, UNITED PRAIRIE BANK -
XXXXXXX and PEOPLES NATIONAL BANK OF
KEWANEE
By: /s/ Xxxxxxxxxxx Xxxxx
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Its Senior Vice President
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