CHANGE IN TERMS AGREEMENT
Principal
Loan
Date Maturity
Loan
No.
Call/Coll
Account
Officer
Initials
$5,000,000.00
09/22/2005
01/04/2006 519650
030
References
in the shaded area are for the Lenders use only and do not limit the
applicability of this document to any particular loan or item.
Any
above
information containing “***” has been omitted due to text length
limitations.
Borrower:
CC
TOLLGATE LLC Lender: COLORADO
BUSINESS BANK
0000X
XXXX XXXXX XX. DENVER
COLORADO SPRINGS, CO 00000 000
00XX
XXXXXX
DENVER,
CO 80202
Principal
Amount:
$5,000,000.00
Initial Rate:
7.250%
Date of Agreement: September 22, 2005
DESCRIPTION
OF EXISTING INDEBTEDNESS.
AN
ORIGINAL PROMISSORY NOTE DATED APRIL 4, 2005 IN THE AMOUNT OF $5,000,000.00
WITH
AN ORIGINAL MATURITY DATE OF OCTOBER 4, 2005 AND INCLUDING ANY AND ALL
SUBSEQUENT EXTENSIONS OR MODIFICATIONS THEREFROM.
DESCRIPTION
OF CHANGE IN TERMS.
EXTENSION OF MATURITY DATE FROM OCTOBER 4, 2005 TO JANUARY 4, 2006. ALL OTHER
TERMS AND CONDITIONS WILL REMAIN THE SAME.
PROMISE
TO PAY. CC
TOLLGATE LLC (‘Borrower”) promises to pay to COLORADO BUSINESS BANK (“Lender’),
or order, in lawful money of the United States of America, the principal amount
of Five Million & 00/100 Dollars ($5,000,000.00) or so much as may be
outstanding, together with interest on the unpaid outstanding principal balance
of each advance. Interest shall be calculated from the date of each advance
until repayment of each advance.
PAYMENT.
Borrower
will pay this loan in one payment of all outstanding principal plus all accrued
unpaid interest on January 4, 2006. In addition, Borrower will pay regular
monthly payments of all accrued unpaid interest due as of each payment date,
beginning October 4, 2005, with all subsequent interest payments to be due
on
the same day of each month after that. Unless otherwise agreed or required
by
applicable law, payments will be applied first to any accrued unpaid interest;
then to principal; then to any late charges; and then to any unpaid collection
costs. Interest on this Agreement is computed on a 365/360 simple interest
basis; that is, by applying the ratio of the annual interest rate over a year
of
360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. Borrower will pay
Lender at Xxxxxx’s address shown above or at such other place as Lender may
designate in writing.
VARIABLE
INTEREST RATE.
The
interest rate on this Agreement is subject to change from time to time based
on
changes in an index which is the COLORADO BUSINESS BANK PRIME RATE (the
‘Index’). Lender will tell Borrower the current Index rate upon Xxxxxxxx’s
request. The interest rate change will not occur more often than each DAY.
Borrower understands that Lender may make loans based on other rates as well.
The Index currently is 6.750% per annum. The interest rate to be applied to
the
unpaid principal balance of the Note will be at a rate of 0.500 percentage
points over the Index, resulting in an initial rate of 7.250% per annum. NOTICE:
Under no circumstances will the interest rate on the Note be more than the
maximum rate allowed by applicable law.
PREPAYMENT.
Xxxxxxxx
agrees that all loan fees and other prepaid finance charges are earned fully
as
of the date of the loan and will not be subject to refund upon early payment
(whether voluntary or as a result of default), except as otherwise required
by
law. Except for the foregoing, Borrower may pay without penalty all or a portion
of the amount owed earlier than it is due. Early payments will not, unless
agreed to by Xxxxxx in writing, relieve Xxxxxxxx of Xxxxxxxx’s obligation to
continue to make payments of accrued unpaid interest. Rather, early payments
will reduce the principal balance due. Xxxxxxxx agrees not to send Lender
payments marked "paid in full", "without recourse”, or similar language. If
Borrower sends such a payment, Xxxxxx may accept it without losing any of
Xxxxxx’s rights under this Agreement, and Borrower will remain obligated to pay
any further amount owed to Lender. All written communications concerning
disputed amounts, including any check or other payment instrument that indicates
that the payment constitutes “payment in full” of the amount owed or that is
tendered with other conditions or limitations or as full satisfaction of a
disputed amount must be mailed or delivered to: COLORADO BUSINESS BANK, ATTN:
LOAN OPERATIONS, P.O. BOX 8779 DENVER, CO 80201.
LATE
CHARGE.
If a
payment is 11 days or more late, Borrower will be charged 5.000% of the unpaid
portion of the regularly scheduled payment.
INTEREST
AFTER DEFAULT.
Upon
default, including failure to pay upon final maturity, Lender, at its option,
may, if permitted under applicable law, increase the variable interest rate
on
this Agreement to 5.500 percentage points over the Index. The interest rate
will
not exceed the maximum rate permitted by applicable law.
DEFAULT.
Each
of
the following shall constitute an Event of Default under this
Agreement:
Payment
Default.
Borrower
fails to make any payment when due under the indebtedness.
Other
Defaults.
Borrower fails to comply with or to perform any other term, obligation, covenant
or condition contained in this Agreement or in any of the Related Documents
or
to comply with or to perform any term, obligation, covenant or condition
contained in any other agreement between Lender and Borrower.
False
Statements. Any
warranty, representation or statement made or furnished to Lender by Borrower
or
on Borrower’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
Death
or Insolvency. The
dissolution of Borrower (regardless of whether election to continue is made),
any member withdraws from Borrower, or any other termination of Borrower’s
existence as a going business or the death of any member, the insolvency of
Borrower, the appointment of a receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Borrower.
Creditor
or Forfeiture Proceedings.
Commencement of foreclosure or forfeiture proceedings, whether by judicial
proceeding, self-help, repossession or any other method, by any creditor of
Borrower or by any governmental agency against any collateral securing the
Indebtedness. This includes a garnishment of any of Borrower’s accounts,
including deposit accounts, with Lender. However, this Event of Default shall
not apply if there is a good faith dispute by Xxxxxxxx as to the validity or
reasonableness of the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower gives Xxxxxx written notice of the creditor or
forfeiture proceeding and deposits with Lender monies or a surety bond for
the
creditor or forfeiture proceeding, in an amount determined by Lender, in its
sole discretion, as being an adequate reserve or bond for the
dispute.
Events
Affecting Guarantor.
Any of
the preceding events occurs with respect to any guarantor, endorser, surety,
or
accommodation party of any of the Indebtedness or any guarantor, endorser,
surety, or accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any Guaranty of the Indebtedness
evidenced by this Note.
Adverse
Change. A
material adverse change occurs in Borrower’s financial condition, or Xxxxxx
believes the prospect of payment or performance of the Indebtedness is
impaired.
Insecurity.
Lender
in good faith believes itself insecure.
LENDER’S
RIGHTS. Upon
default, Xxxxxx may declare the entire unpaid principal balance on this
Agreement and all accrued unpaid interest immediately due, and then Borrower
will pay that amount.
ATTORNEYS’
FEES; EXPENSES. Lender
may hire or pay someone else to help collect this Agreement if Borrower does
not
pay. Borrower will pay Lender the reasonable costs of such collection. This
includes, subject to any limits under applicable law, Lenders attorneys’ fees
and Xxxxxx’s legal expenses, whether or not there is a lawsuit, including
without limitation attorneys’ fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), and
appeals. If not prohibited by applicable law, Xxxxxxxx also will pay any court
costs, in addition to all other sums provided by law.
JURY
WAIVER.
Xxxxxx
and Xxxxxxxx hereby waive the right to any jury trial in any action, proceeding,
or counterclaim brought by either Xxxxxx or Borrower against the
other.
GOVERNING
LAW. This
Agreement will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of Colorado without
regard to its conflicts of law provisions. This Agreement has been accepted
by
Xxxxxx in the State of Colorado,
DISHONORED
ITEM FEE. Borrower
will pay a fee to Lender of $25.00 if Borrower makes a payment on Borrower’s
loan and the check or preauthorized charge with which Borrower pays is later
dishonored.
RIGHT
OF SETOFF.
To the
extent permitted by applicable law. Lender reserves a right of setoff in all
Borrower’s accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Borrower holds jointly with someone else
and all accounts Borrower may open in the future. However, this does not include
any IRA or Xxxxx accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on the debt against any
and
all such accounts.
LINE
OF CREDIT. This
Agreement evidences a revolving line of credit. Advances under this Agreement,
as well as directions for payment from Xxxxxxxx’s accounts, may be requested
orally or in writing by Borrower or by an authorized person. Lender-may, but
need not, require that all oral requests be confirmed in writing. Xxxxxxxx
agrees to be liable for all sums either: (A) advanced in accordance with the
instructions of an authorized person or (B) credited to any of Xxxxxxxx’s
accounts with Xxxxxx. The unpaid principal balance owing on this Agreement
at
any time may be evidenced by endorsements on this Agreement or by Xxxxxx’s
internal records, including daily computer print-outs. Lender will have no
obligation to advance funds under this Agreement if: (A) Borrower or any
guarantor is in default under the terms of this Agreement or any agreement
that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Agreement; (B) Borrower or any guarantor
ceases doing business or is insolvent (C) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor’s guarantee of this
Agreement or any other loan with Lender; (D) Borrower has applied funds provided
pursuant to this Agreement for purposes other than those authorized by Lender;
or (El Lender in good faith believes itself insecure.
CONTINUING
VALIDITY.
Except
as expressly changed by this Agreement, the terms of the original obligation
or
obligations, including all agreements evidenced or securing the obligation(s),
remain unchanged and in full force and effect. Consent by Xxxxxx to this
Agreement does not waive Xxxxxx’s right to strict performance of the
obligation(s) as changed, nor obligate Lender to make any future change in
terms. Nothing in this Agreement will constitute a satisfaction of the
obligation(s). It is the intention of Lender to retain as liable parties all
makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Xxxxxx in writing. Any maker
or
endorser, including accommodation makers, will not be released by virtue of
this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement
or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release,
but also to all such subsequent actions.
SUCCESSORS
AND ASSIGNS.
Subject
to any limitations stated in this Agreement on transfer of Xxxxxxxx’s interest,
this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns. If ownership of the Collateral becomes vested
in a
person other than Xxxxxxxx, Lender, without notice to Xxxxxxxx, may deal with
Xxxxxxxx’s successors with reference to this Agreement and the Indebtedness by
way of forbearance or extension without releasing Borrower from the obligations
of this Agreement or liability under the Indebtedness.
NOTIFY
US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please
notify us if we report any inaccurate information about your account(s) to
a
consumer reporting agency. Your written notice describing the specific
inaccuracy (ies) should be sent to us at the following address: COLORADO
BUSINESS BANK ATTN; LOAN OPERATIONS 000 00XX XXXXXX XXXXXX, XX
00000.
MISCELLANEOUS
PROVISIONS.
Lender
may delay or forgo enforcing any of its rights or remedies under this Agreement
without losing them. Borrower and any other person who signs, guarantees or
endorses this Agreement, to the extent allowed by law, waive presentment, demand
for payment, and notice of dishonor. Upon any change in the terms of this
Agreement, and unless otherwise expressly stated in writing, no party who signs
this Agreement, whether as maker, guarantor, accommodation maker or endorser,
shall be released from liability. All such parties agree that Lender may renew
or extend (repeatedly and for any length of time) this loan or release any
party
or guarantor or collateral; or impair, fail to realize upon or perfect Xxxxxx’s
security interest in the collateral; and take any other action deemed necessary
by Xxxxxx without the consent of or notice to anyone, All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Agreement are joint and several.
PRIOR
TO SIGNING THIS AGREEMENT, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS
OF
THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES
TO THE TERMS OF THE AGREEMENT.
BORROWER:
CC
TOLLGATE LLC
CENTURY
CASINOS TOLLGATE, INC., Member/Manager of CC TOLLGATE LLC
By:
/s/
Xxxxx Xxxxxxxxx
XXXXX
XXXXXXXXX,, CEO and Secretary of
CENTURY
CASINOS TOLLGATE, INC.
CENTRAL
CITY VENTURE. LLC, Member of CC TOLLGATE LLC
By:
/s/
Xxxxxxxxx X. Xxxxxx
XXXXXXXXX
X. XXXXXX, Manager of CENTRAL CITY
VENTURE,
LLC
By:
/s/
Xxxx X. Xxxxxx
XXXX
X.
XXXXXX. Manager of CENTRAL CITY
VENTURE,
LLC
