FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Fourth Amendment")
is made and entered into as of the 23rd
day of
September, 2005, by and among WMCK VENTURE CORP., a Delaware corporation,
CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado corporation and WMCK ACQUISITION
CORP., a Delaware corporation (collectively the "Borrowers"), CENTURY CASINOS,
INC., a Delaware corporation (the "Guarantor") and XXXXX FARGO BANK, National
Association, as Lender and L/C Issuer and as the administrative and collateral
agent for the Lenders and L/C Issuer (herein in such capacity called the "Agent
Bank" and, together with the Lenders and L/C Issuer, collectively referred
to as
the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A.
Borrowers, Guarantor and Banks entered into an Amended and Restated Credit
Agreement dated as of April 21, 2000, as amended by First Amendment to Amended
and Restated Credit Agreement dated as of August 22, 2001, by Second Amendment
to Amended and Restated Credit Agreement dated as of August 28, 2002 and by
Third Amendment to Amended and Restated Credit Agreement dated as of October
27,
2004 (collectively, the "Existing Credit Agreement").
B.
For
the purpose of this Fourth Amendment, all capitalized words and terms not
otherwise defined herein shall have the respective meanings and be construed
herein as provided in Section 1.01 of the Existing Credit Agreement and any
reference to a provision of the Existing Credit Agreement shall be deemed to
incorporate that provision as a part hereof, in the same manner and with the
same effect as if the same were fully set forth herein.
C.
Borrowers and Guarantor desire to further amend the Existing Credit Agreement
for the following purposes:
(i)
amending the definition of EBITDA;
(ii)
amending the definition of Maximum Permitted Balance to provide for an
Availability Limit;
(iii)
eliminating the "Designated Distribution Carve-Outs on and after April 1, 2005;
(iv)
providing for the management of the Casino Facilities pursuant to a management
agreement with the Guarantor or a Subsidiary of the Guarantor subject to
subordination and other payment limitations;
(v)
revising the reporting requirements under Section 5.08;
(vi)
providing for a maximum rate of interest that may accrue on the unpaid principal
of Subordinated Debt;
(vii)
amending the Leverage Ratio requirements under Section 6.01;
(viii)
eliminating the Guarantor Funded Debt to Borrower Consolidation EBITDA Ratio
Requirements set forth in Section 6.10; and
(ix)
adding a covenant restricting Distributions to specified aggregate amounts.
D.
Lender
is willing to amend the Existing Credit Agreement for the purposes described
hereinabove, subject to the terms and conditions which are hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do agree to the amendments and modifications to the Existing
Credit Agreement in each instance effective as of the Fourth Amendment Effective
Date, as specifically hereinafter provided as follows:
1.
Definitions.
Section
1.01 of the Existing Credit Agreement entitled "Definitions" shall be and is
hereby amended to include the following definitions. Those terms which are
currently defined by Section 1.01 of the Existing Credit Agreement and which
are
also defined below shall be superseded and restated by the applicable definition
set forth below:
"Amendment
Fee" shall have the meaning set forth in Paragraph 11(c) of the Fourth
Amendment.
"Availability
Determination Date" shall mean the date upon which Lender receives a Compliance
Certificate in accordance with Section 5.08(f) setting forth the calculation
of
EBITDA as of the most recently ended Fiscal Quarter.
"Availability
Limit" shall mean, determined as of the end of each Fiscal Quarter, EBITDA
of
the Borrower determined as of the end of each Fiscal Quarter together with
the
immediately preceding three (3) Fiscal Quarters on a four (4) Fiscal Quarter
basis multiplied by (x) the then maximum permitted Leverage Ratio applicable
as
of the end of such Fiscal Quarter, less the aggregate of Funded Debt (exclusive
of the Aggregate Outstandings under the Credit Facility) as of the end of such
Fiscal Quarter. Each calculation shall be set forth on a Compliance Certificate
(and providing reasonable detail as to the calculation thereof) and delivered
to
Lender within the time periods set forth in Section 5.08(f).
"Compliance
Certificate" shall mean a compliance certificate as described in Section 5.08,
the form of which is more particularly described on "Exhibit F", affixed to
the
Fourth Amendment and by this reference incorporated herein and made a part
hereof, which revised Exhibit F shall fully supersede and restate Exhibit F
attached to the Existing Credit Agreement.
"Credit
Agreement" shall mean the Existing Credit Agreement as amended by the Fourth
Amendment, together with all Schedules, Exhibits and other attachments thereto,
as it may be further amended, modified, extended, renewed or restated from
time
to time.
"Designated
Distribution Carve-Outs" shall mean reference to Distributions which have been
specifically identified by written notice from Borrowers to Lender as
"Designated Distribution Carve-Outs", which have been designated by Borrower
and
funded prior to April 1, 2005.
"Distributions"
shall mean and collectively refer to any and all cash dividends, loans, payments
(including principal payments made on Subordinated Debt), Management Fees,
advances or other distributions, fees or compensation of any kind or character
whatsoever made by Borrowers to any Person which is not a member of the Borrower
Consolidation, but shall not include consideration paid for tangible and
intangible assets in an arms length exchange for fair market value, trade
payments made and other payments for liabilities incurred in the ordinary course
of business or compensation and fees to officers, directors and employees of
Borrowers, all in the ordinary course of business.
"EBITDA"
shall mean with reference to any Person, for any Fiscal Period under review,
the
sum of (i) Net Income for that period, plus (ii) Interest Expense (expensed
and
capitalized) for that period, plus (iii) the aggregate amount of federal and
state taxes on or measured by income for that period (whether or not payable
during that period), plus (iv) depreciation, amortization and all other non-cash
expenses for that period, in each case determined in accordance with GAAP,
less
(v) all cash and non-cash income (including, but not limited to, interest
income), transfers, loans and advances from CCI or any of its Subsidiaries
that
are not members of the Borrower Consolidation, less (vi) all other non-cash
income from any source not specified in (v) above, and, in the case of items
(ii), (iii) and (iv), only to the extent deducted in the determination of Net
Income for that period and in the case of items (v) and (vi) only to the extent
included in the determination of Net Income for that period.
"Existing
Credit Agreement" shall have the meaning set forth in Recital Paragraph A of
the
Fourth Amendment.
"Fourth
Amendment" shall mean the Fourth Amendment to Amended and Restated Credit
Agreement.
"Fourth
Amendment Effective Date" shall mean September 28, 2005, subject to the
occurrence of each of the conditions precedent set forth in Paragraph 10 of
the
Fourth Amendment.
"Management
Agreement" shall mean the management agreement and all other documents and
instruments evidencing the management services arrangement and compensation
of
the Operating Manager.
"Management
Fees" shall mean collective reference to all fees and compensation paid or
payable to the Operating Manager under the terms of the Management Agreement,
subject to compliance with the requirements of Section 5.27.
"Management
Subordination Agreement" shall mean the Subordination Agreement to be executed
by Borrowers and the Operating Manager concurrently with the execution of the
Management Agreement, pursuant to which the Management Agreement and the
Management Fees payable thereunder are subordinated to the Bank Facilities
and
the Security Documentation, which shall be executed in favor of Agent Bank
on
behalf of the Lenders substantially in the form of the Subordination Agreement
marked "Exhibit O", affixed to the Fourth Amendment and by this reference
incorporated herein and made a part hereof.
"Maximum
Permitted Balance" shall mean the maximum amount of principal which may be
outstanding on the Credit Facility from time to time which shall be the lesser
of: (a) the Maximum Scheduled Balance, or (b) the amount to which the Maximum
Scheduled Balance is voluntarily reduced by Borrower pursuant to Section 2.01(c)
or is otherwise reduced or limited pursuant to Sections 5.01, 5.12 or 8.02,
by
Scheduled Reductions or by reason of the Availability Limit under Section
2.01(d).
"Operating
Manager" shall mean CCI or a wholly owned Subsidiary of CCI that has been
engaged by one or more of the Borrowers to manage the Casino Facilities pursuant
to the terms and provisions set forth in the Management Agreement.
2.
Modification
of EBITDA and Designated Distribution Carve-Outs.
As of
the Fourth Amendment Effective Date, the definitions of "EBITDA" and "Designated
Distribution Carve-Outs" shall be and are hereby modified as set forth in the
definitions of "EBITDA" and "Designated Distribution Carve-Outs" contained
in
the Fourth Amendment.
3.
Modification
of Section 2.01(d).
As of
the Fourth Amendment Effective Date, Section 2.01(d) of the Existing Credit
Agreement shall be and is hereby deleted and in its place the following
subsections 2.01(d), (e) and (f) shall be substituted in their entirety as
follows:
"d.
Availability
Limit.
Notwithstanding anything herein contained to the contrary, the Maximum Permitted
Balance shall be limited to the Availability Limit, as determined from time
to
time. If on any Availability Determination Date, the Aggregate Outstandings
are
in excess of the Availability Limit:
(i) |
Borrower
shall not be entitled to any further Borrowings until the Availability
Limit is demonstrated to be in excess of the Aggregate Outstandings
as of
a subsequent Availability Determination Date, and then only to the
extent
of such excess;
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(ii) |
so
long as no Default or Event of Default shall have occurred and remains
continuing, Borrower shall cause the Aggregate Outstandings to be
reduced
to no more than the most recently determined Availability Limit on
or
before five (5) Banking Business Days following such Availability
Determination Date; and
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(iii) |
notwithstanding
the provisions set forth in subparagraph (ii) hereinabove, if a Default
or
Event of Default shall have occurred and remains continuing, then
the
Borrower shall cause the Aggregate Outstandings to be reduced to
no more
than the most recently determined Availability Limit on or before
the
Banking Business Day following such Availability Determination Date.
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e.
No
limitation of the Maximum Permitted Balance shall relieve or otherwise defer
the
making of each Scheduled Reduction on each Reduction Date.
f.
In the
event any Availability Limit, Scheduled Reduction, or Voluntary Permanent
Reduction reduces the Maximum Permitted Balance to less than the sum of the
Aggregate Outstandings, the Borrowers shall, except as otherwise provided in
Section 2.01(d)(ii) on or before the next ensuing Banking Business Day cause
the
Aggregate Outstandings to be reduced by such amount as may be necessary to
cause
the Aggregate Outstandings to be equal to or less than the Maximum Permitted
Balance."
4.
Modification
of Section 2.09(b).
As of
the Fourth Amendment Effective Date, the first sentence of the second paragraph
of Section 2.09(b) of the Existing Credit Agreement shall be and is hereby
restated in its entirety as follows:
"The
Nonusage Fee shall be calculated as the product of (i) the applicable Nonusage
Percentage multiplied by (ii) the daily average of the Maximum Permitted Balance
(without regard to any Availability Limit) less the daily average of the Funded
Outstandings during such Fiscal Quarter, computed on the basis of a three
hundred sixty (360) day year based on the number of actual days elapsed."
5.
Restatement
of Section 5.08(a).
As of
the Fourth Amendment Effective Date, Section 5.08(a) shall be and is hereby
fully amended and restated in its entirety as follows:
"a.
As
soon as practicable, and in any event within forty-five (45) days after the
end
of:
(i) |
the
first two (2) calendar months of each Fiscal Quarter following the
Fourth
Amendment Effective Date, the balance sheet and an income statement
of the
Borrower Consolidation as at the end of such calendar
month;
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(ii) |
each
Fiscal Quarter following the Closing Date, the balance sheet of the
Borrower Consolidation as at the end of such Fiscal Quarter and an
income
statement, statement of operations and a statement of cash flows
for the
Fiscal Quarter under review and reflecting year-to-date performance
of the
Borrower Consolidation and, a comparison of the financial performance
of
the Borrower Consolidation to the prior Fiscal Year's operations;
and
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(iii) |
in
each instance such financial statements shall be certified by an
Authorized Officer of the Borrower Consolidation as fairly presenting
the
financial condition, results of operations and cash flows of the
Borrower
Consolidation in accordance with GAAP, except as noted therein, as
at such
date and for such periods, subject only to normal year-end accruals
and
audit adjustments."
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6.
Addition
of Covenant Regarding Engagement of Operating Manager Construction Covenants
and
Reporting Requirements.
As of
the Fourth Amendment Effective Date, Section 5.27 entitled "Conditions for
Engagement of Operating Manager" shall be and is hereby added to the Existing
Credit Agreement as follows:
"Section
5.27. Conditions
for Engagement of Operating Manager.
No
member of the Borrower Consolidation shall execute a Management Agreement or
otherwise engage the services of an Operating Manager unless and until each
of
the following conditions have been fully satisfied:
a.
Agent
Bank shall have received from such Borrower a true and correct copy of the
Management Agreement and all amendments, exhibits, supplements and addendum
attached thereto or incorporated by reference therein;
b.
The
Management Agreement and services of the Operating Manager are subordinated
to
the Bank Facilities and Loan Documents by the execution by Borrower and such
Operating Manager of a Management Subordination Agreement and the delivery
thereof to Agent Bank on behalf of Lenders concurrently with the execution
of
the Management Agreement;
c.
No
payment of Management Fees by any member of the Borrower Consolidation to
Operating Manager shall be permitted until the Borrower Consolidation realizes
a
Leverage Ratio of less than 2.00 to 1.00 as of the end of any Fiscal Quarter;
and
d.
Borrower shall not amend or modify or enter into any agreement to amend or
modify the Management Agreement without the prior written consent of Agent
Bank."
7.
Restatement
of Leverage Ratio Covenant.
As of
the Fourth Amendment Effective Date, Section 6.01 of the Existing Credit
Agreement entitled "Leverage Ratio" shall be and is hereby fully amended and
restated in its entirety as follows:
"Section
6.01. Leverage
Ratio.
Commencing on the Fourth Amendment Effective Date and continuing as of each
Fiscal Quarter end until the Maturity Date, the Borrower Consolidation shall
maintain a maximum Leverage Ratio no greater than the ratios described
hereinbelow to be calculated as of the end of each Fiscal Quarter in accordance
with the following schedule:
Maximum
Permitted
Fiscal
Quarter End Leverage
Ratio
As
of the
Fiscal Quarter ending September
30,
2005
3.00 to
1.00
As
of the
Fiscal Quarters ending December
31,
2005
and March 31,
2006
2.75 to 1.00
As
of the
Fiscal Quarters ending June 30,
2006
and
September 30,
2006 2.50
to 1.00
As
of the
Fiscal Quarters ending December
31,
2006
and March 31,
2007
2.25 to 1.00
As
of the
Fiscal Quarter ending June 30,
2007
and
as of each Fiscal Quarter end
thereafter
occurring until Credit Facility
Termination
2.00 to 1.00"
8.
Restatement
of Section 6.05(f).
As of
the Fourth Amendment Effective Date, Section 6.05(f) shall be and is hereby
fully amended and restated in its entirety as follows:
"f.
The
Subordinated Debt as of the Closing Date and any additional unsecured
subordinated debt, the rate of interest, which may not exceed six percent (6%)
per annum, and repayment terms of which are first approved in writing by Agent
Bank and for which a payment subordination agreement, in the form of Exhibit
I
hereto, has been first executed in favor of Agent Bank on behalf of Lenders."
9.
Elimination
of Guarantor Funded Debt to Borrower Consolidation EBITDA Ratio
Covenant.
As of
the Fourth Amendment Effective Date, Section 6.10 of the Existing Credit
Agreement entitled "Ratio of Guarantor Funded Debt to Borrower Consolidation
EBITDA" shall be and is hereby deleted in its entirety.
10.
Addition
of Substituted Covenant Restricting Distributions.
As of
the Fourth Amendment Effective Date, as substituted Section 6.10 shall be added
to Article VI of the Existing Credit Agreement entitled "Restriction on
Distributions" as follows:
"Section
6.10. Restriction
on Distributions.
a.
Borrower shall not make any Distributions during any period in which a Default
or Event of Default has occurred and remains continuing; and
b.
In no
event shall the aggregate amount of Distributions for the Fiscal Quarters ending
September 30, 2005; December 31, 2005; March 31, 2006; and June 30, 2006 exceed
the cumulative maximum amount of One Million Nine Hundred Thousand Dollars
($1,900,000.00); and
c.
Except
as provided in (b) above, in no event shall the aggregate amount of
Distributions during any Fiscal Year exceed the cumulative maximum amount of
One
Million Six Hundred Thousand Dollars ($1,600,000.00).
11.
Conditions
Precedent to Fourth Amendment Effective Date.
The
occurrence of the Fourth Amendment Effective Date is subject to Agent Bank
having received the following documents and payments, in each case in a form
and
substance reasonably satisfactory to Agent Bank, and the occurrence of each
other condition precedent set forth below on or before September 30, 2005:
a.
Due
execution by Borrowers, Guarantor and Banks of four (4) duplicate originals
of
this Fourth Amendment;
b.
Corporate resolutions or other evidence of requisite authority of Borrowers
and
Guarantor, as applicable, to execute the Fourth Amendment;
c.
Payment of a non-refundable Amendment Fee in the amount of Fifty-One Thousand
Six Hundred Eleven Dollars and Twelve Cents ($51,611.12);
d.
Reimbursement to Agent Bank by Borrowers for all reasonable fees and
out-of-pocket expenses incurred by Agent Bank in connection with the Fourth
Amendment, including, but not limited to, reasonable attorneys' fees of
Xxxxxxxxx & Xxxxxx, LLC and all other like expenses remaining unpaid as of
the Fourth Amendment Effective Date; and
e.
Such
other documents, instruments or conditions as may be reasonably required by
Lenders.
12.
Representations
of Borrowers.
Borrowers hereby represent to the Banks that:
a.
The
representations and warranties contained in Article IV of the Existing Credit
Agreement and contained in each of the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date, which shall be true and correct in all material respects as of such date)
are true and correct on and as of the Fourth Amendment Effective Date in all
material respects as though such representations and warranties had been made
on
and as of the Fourth Amendment Effective Date, except to the extent that such
representations and warranties are not true and correct as a result of a change
which is permitted by the Credit Agreement or by any other Loan Document or
which has been otherwise consented to by Agent Bank;
b.
Since
the date of the most recent financial statements referred to in Section 5.08
of
the Existing Credit Agreement, no Material Adverse Change has occurred and
no
event or circumstance which could reasonably be expected to result in a Material
Adverse Change or Material Adverse Effect has occurred;
c.
No
event has occurred and is continuing which constitutes a Default or Event of
Default under the terms of the Credit Agreement; and
d.
The
execution, delivery and performance of this Fourth Amendment has been duly
authorized by all necessary action of Borrowers and Guarantor and this Fourth
Amendment constitutes a valid, binding and enforceable obligation of Borrowers
and Guarantor.
13.
Consent
to Fourth Amendment and Affirmation and Ratification of
Guaranty.
Guarantor joins in the execution of this Fourth Amendment for the purpose of
evidencing its consent to the terms, covenants, provisions and conditions herein
contained and contained in the Existing Credit Agreement. Guarantor further
joins in the execution of this Fourth Amendment for the purpose of ratifying
and
affirming its obligations under the Continuing Guaranty for the guaranty of
the
full and prompt payment and performance of all Indebtedness and Obligations
under the Bank Facilities, as modified and amended under this Fourth Amendment.
14.
Incorporation
by Reference.
This
Fourth Amendment shall be and is hereby incorporated in and forms a part of
the
Existing Credit Agreement.
15.
Governing
Law.
This
Fourth Amendment to Credit Agreement shall be governed by the internal laws
of
the State of Nevada without reference to conflicts of laws principles.
16.
Counterparts.
This
Fourth Amendment may be executed in any number of separate counterparts with
the
same effect as if the signatures hereto and hereby were upon the same
instrument. All such counterparts shall together constitute one and the same
document.
17.
Continuance
of Terms and Provisions.
All of
the terms and provisions of the Existing Credit Agreement shall remain unchanged
except as specifically modified herein.
18.
Replacement/Additional
Exhibits Attached.
The
following replacement/additional Exhibits are attached hereto and incorporated
herein and made a part of the Credit Agreement as follows:
Exhibit
F
-Compliance Certificate
Exhibit
O
- Management Subordination Agreement
IN
WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as
of
the day and year first above written.
BORROWERS:
WMCK
VENTURE CORP.,
a
Delaware
corporation
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
President
CENTURY
CASINOS
CRIPPLE
CREEK,
INC.,
Colorado corporation
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
President
WMCK
ACQUISITION CORP.,
a Delaware corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
President
GUARANTOR:
CENTURY CASINOS, INC., a Delaware corporation
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Senior Vice President
BANKS:
XXXXX FARGO BANK
National
Association
Agent
Bank, Lender
and
L/C Issuer
By /s/ Xxxx Xxxx
Xxxx Xxxx,
Vice
President
COMPLIANCE
CERTIFICATE
(Revised
- Fourth Amendment - Form)
TO: XXXXX
FARGO BANK, National Association,
as
Agent
Bank
Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
April
21, 2000, as amended by First Amendment to Amended and Restated Credit Agreement
dated as of August 22, 2001, by Second Amendment to Amended and Restated
Credit Agreement dated as of August 28, 2002, by Third Amendment to Amended
and
Restated Credit Agreement dated as of October 27, 2004 and by Fourth Amendment
to Amended and Restated Credit Agreement dated as of September 23, 2005 (as
may
be further amended, supplemented or otherwise modified from time to time,
collectively the "Credit Agreement"), by and among WMCK VENTURE CORP., a
Delaware corporation, CENTURY CASINOS CRIPPLE CREEK, INC., a Colorado
corporation and WMCK ACQUISITION CORP., a Delaware corporation (collectively
the
"Borrowers"), CENTURY CASINOS, INC., a Delaware corporation (the "Guarantor"),
the Lenders therein named (each, together with their respective successors
and
assigns, individually being referred to as a "Lender" and collectively as the
"Lenders"), the L/C Issuer therein named and XXXXX FARGO BANK, National
Association, as administrative and collateral agent for the Lenders and L/C
Issuer (herein, in such capacity, called the "Agent Bank" and, together with
the
Lenders, collectively referred to as the "Banks"). Terms defined in the Credit
Agreement and not otherwise defined in this Compliance Certificate
("Certificate") shall have the meanings defined and described in the Credit
Agreement. This Certificate is delivered in accordance with Section 5.08(f)
of the Credit Agreement.
The
period under review is the Fiscal Quarter ended [Insert
Date] together
with, unless otherwise indicated, the three (3) immediately preceding Fiscal
Quarters on a rolling four (4) Fiscal Quarter basis.
Exhibit
F
To
Fourth
Amendment
I.
COMPLIANCE
WITH AFFIRMATIVE COVENANTS
A. FF&E
(Section 5.01): Amount of Capital Proceeds from FF&E sold or disposed
which exceeds One Hundred Fifty Thousand Dollars ($150,000.00) in
the
aggregate during the term of the Credit Facility, in each instance
which
are not replaced by FF&E of equivalent value and
utility.
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$______________
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B. Compliance
with Payment Subordination Agreement
(Section 5.03): Report the amount of any payments made on the Subordinated
Debt:
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Interest
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$______________
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Principal
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$______________
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C. Liens
Filed
(Section 5.04): Report any liens filed against the Real Property
and the
amount claimed in such liens. Describe actions being taken with respect
thereto.
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_______________
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D. Acquisition
of Additional Property
(Section 5.06(b)):
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a. Other
than the Real Property presently encumbered by the Security Documentation,
attach a legal description and describe the use of any other real
property
or rights to the use of real property which is used in any material
manner
in connection with the Casino Facilities. Attach evidence that such
real
property or rights to the use of such real property has been added
as
Collateral under the Security Documentation.
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______________
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b. Has
the T-Shirt Shop been acquired by any Borrower or the
Guarantor?
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(yes/no)
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E. Permitted
Encumbrances
(Section 5.11): Describe any mortgage, deed of trust, pledge, lien,
security interest, encumbrance, attachment, levy, distraint or other
judicial process or burden affecting the Collateral other than the
Permitted Encumbrances. Describe any matters being contested in the
manner
described in Sections 5.04 and 5.10 of the Credit
Agreement.
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______________
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F. Suits
or Actions
(Section 5.16): Describe on a separate sheet any matters requiring
advice
to Agent Bank under Section 5.16.
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______________
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G. Tradenames,
Trademarks and Servicemarks
(Section 5.19): Describe on a separate sheet any matters requiring
advice
to Agent Bank under Section 5.19.
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______________
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H. Notice
of Hazardous Materials
(Section 5.20): State whether or not to your knowledge there are
any
matters of which Banks should be advised under Section 5.20.
If so,
attach a detailed summary of such matter(s).
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______________
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I. Golden
Horseshoe Lease
(Section 5.23):
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|
a. Describe
all defaults, if any, which occurred during the period under review
under
the Golden Horseshoe Lease. Describe any modifications or amendments
to
the Golden Horseshoe Lease. State whether or not such modifications
or
amendments have been consented to by Agent Bank as required under
Section 5.23 of the Credit Agreement.
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_____________
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b. Have
the Borrowers given Teller Realty Inc. written notice of intent to
exercise the purchase option?
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yes/no
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If
so, attach a copy of such written notice.
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|
Required:
On or before June 30, 2003.
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c. Have
Borrowers purchased the Golden Horseshoe Property?
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yes/no
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d. Have
Borrowers extended the term of the Golden Horseshoe Lease to at least
June 30, 2010?
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yes/no
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Requirement:
b, c or d must occur on or before June 30, 2003.
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J. Compliance
with Management Agreement
(Section 5.27):
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a. Has
a Management Agreement been executed in compliance with the requirements
of Section 5.27?
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yes/no
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If
so:
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b. Describe
all defaults, if any, which occurred during the period under review
under
the Management Agreement.
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|
c. Describe
any modifications or amendments to the Management
Agreement.
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|
d. State
whether or not such modifications or amendments have been consented
to by
Agent Bank as required under Section 5.27 of the Credit
Agreement.
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e. Have
any Management Fees been paid?
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yes/no
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f. Has
the Borrower Consolidation realized a Leverage Ratio less than 2.00
to
1.00 as of the end of a Fiscal Quarter occurring prior to such
payment?
|
yes/no
|
II.
FINANCIAL
COVENANTS
A. Leverage
Ratio
(Section 6.01):
|
||
Funded
Debt.
To be calculated with reference to the Borrower Consolidation as
of the
last day of the Fiscal Quarter set forth above:
|
||
a. Daily
average of the Aggregate Funded Outstanding on the Credit Facility
during
the last month of the Fiscal Quarter under review
|
$_____________
|
|
b. Plus
the daily average during the last month of the Fiscal Quarter under
review, of both the long-term and the current portions (without
duplication) of all other interest bearing Indebtedness
|
+
$_____________
|
|
c. Plus
the daily average during the last month of the Fiscal Quarter under
review, of both the long-term and current portion (without duplication)
of
all Capitalized Lease Liabilities
|
+
$_____________
|
|
d. Plus
the amount of all other Contingent Liabilities as of the last day
of such
period
|
+
$_____________
|
|
e. Less
the amount of all Subordinated Debt as of the last day of such period
to
the extent included in (b) above
|
-
$_____________
|
|
f. TOTAL
FUNDED DEBT
(a
+ b + c + d + e)
|
$_____________
|
|
Divided
(¸)
by:
|
¸
|
|
EBITDA
|
||
To
be calculated with reference to the Borrower Consolidation on a cumulative
basis with respect to the Fiscal Quarter under review and the most
recently ended three (3) immediately preceding Fiscal Quarters on
a four
(4) Fiscal Quarter basis
|
||
g. Net
income
|
$_____________
|
|
h. Plus
Interest Expense (expensed and capitalized) to the extent deducted
in the
determination of Net Income
|
+
$_____________
|
|
i. Plus
the aggregate amount of Federal and state taxes on or measured by
income
(whether or not payable during the period under review) to the extent
deducted in the determination of Net Income
|
+
$_____________
|
|
j. Plus
depreciation, amortization and all other non-cash expenses to the
extent
deducted in the determination of Net Income
|
+
$_____________
|
|
k. Less
all cash and non-cash income (including, but not limited to, interest
income), transfers, loans and advances from CCI or any of its Subsidiaries
that are not members of the Borrower Consolidation to the extent
included
in the determination of Net Income.
|
-
$
|
|
l. Less
all other non-cash income from any source not specified in (k) above
to
the extent included in the determination of Net Income.
|
-
$
|
|
m. TOTAL
EBITDA
(g
+ h + i + j - k - l)
|
$_____________
|
|
Leverage
Ratio (f ¸ m)
|
:1
|
|
Maximum
Permitted Leverage Ratio:
|
||
Fiscal
Quarter End
|
Maximum
Permitted Leverage Ratio
|
|
As
of the Fiscal Quarter ending September 30, 2005
|
3.00
to 1.00
|
|
As
of the Fiscal Quarters ending December 31, 2005 and March 31,
2006
|
2.75
to 1.00
|
|
As
of the Fiscal Quarters ending June 30, 2006 and September 30,
2006
|
2.50
to 1.00
|
|
As
of the Fiscal Quarters ending December 31, 2006 and March 31,
2007
|
2.25
to 1.00
|
|
As
of the Fiscal Quarter ending June 30, 2007 and as of each Fiscal
Quarter
end thereafter occurring until Credit Facility Termination
|
2.00
to 1.00
|
|
B. Interest
Expense Coverage Ratio
(Section 6.02): The following line items and Interest Expense Coverage
Ratio to be calculated with respect to the Borrower Consolidation
with
respect to the Fiscal Quarter under review and the most recently
ended
three (3) preceding Fiscal Quarters on a four (4) Fiscal Quarter
basis
unless otherwise noted:
|
||
ADJUSTED
EBITDA
|
||
a. EBITDA
(enter IIA (m) above)
|
$_____________
|
|
b. Less
the aggregate amount of Distributions (exclusive of the Designated
Distribution Carve-Outs made and funded prior to April 1,
2005, that
which occurred during the four Fiscal Quarter period under
review)
|
-
$_____________
|
|
c. Less
the aggregate amount of Non- Financed
Capital Expenditures
|
-
$_____________
|
|
d. Adjusted
EBITDA
(a
- b - c)
|
$_____________
|
|
Divided
by ¸
|
||
e. Interest
Expense paid on all Indebtedness
(accrued and capitalized)
|
$_____________
|
|
INTEREST
EXPENSE COVERAGE RATIO
(d
¸
e)
|
:1
|
|
Minimum
required no less than 2.00 to 1.00
|
||
C. TFCC
Ratio
(Section 6.03): To be calculated with respect to the Borrower
Consolidation on a cumulative basis with respect to each Fiscal Quarter
and the most recently ended three (3) preceding Fiscal Quarters on
a
rolling four (4) Fiscal Quarter basis, unless otherwise
noted:
|
||
ADJUSTED
EBITDA
|
||
a. EBITDA
(enter IIA (m) above)
|
$____________
|
|
b. Less
the aggregate amount of Distributions (exclusive of the Designated
Distribution Carve-Outs made and funded prior to April 1,
2005 which
occurred during the four Fiscal Quarter period under
review)
|
-
$____________
|
|
c. Less
the aggregate amount of Non- Financed
Capital Expenditures
|
-
$____________
|
|
d. Adjusted
EBITDA
(a
- b - c)
|
$____________
|
|
Divided
by ¸
|
¸
|
|
e. Interest
Expense actually paid (excluding Subordinated Debt)
|
$____________
|
|
f. Plus
current portion of Scheduled Reductions actually paid where required
during the period under review to bring the Aggregate Outstandings
down to
the required Maximum Scheduled Balance
|
+
$____________
|
|
g. Plus
Capitalized Lease Liabilities required to be paid during the period
under
review
|
+
$____________
|
|
h. Plus
actual Interest Expense and principal paid (without duplication)
on
Subordinated Debt
|
+
$____________
|
|
i. TOTAL
DENOMINATOR
(e
+ f + g + h + i)
|
$____________
|
|
TFCC
Ratio (d ¸
i)
|
:1
|
|
Minimum
TFCC Ratio shall be no less than
|
1.10
to 1.00
|
|
Set
forth aggregate amount of Financed Capital Expenditures made during
the
four (4) Fiscal Quarter period under review
|
$____________
|
|
D. No
Transfer of Ownership
(Section 6.04): On a separate sheet describe in detail any transfers
or
hypothecations of Guarantor ownership interest in WMCKVC or WMCKVC
ownership interests in CCCC or WMCKAC not permitted under Section
6.04
|
____________
|
|
E. Total
Indebtedness
(Section 6.05) With respect to the Borrower
Consolidation:
|
||
a. Set
forth the aggregate amount of outstanding Secured Interest Rate
Xxxxxx
|
$_____________
|
|
Maximum
Permitted
|
$18,000,000.00
|
|
b. Set
forth the aggregate amount of secured purchase money Indebtedness
and
Capital Lease Liabilities
|
$_____________
|
|
Maximum
Permitted
|
$
250,000.00
|
|
c. Set
forth aggregate amount of Indebtedness to Guarantor or any Subsidiary
or
Affiliate of Guarantor which is not a member of the Borrower
Consolidation
|
$_____________
|
|
Maximum
Permitted
|
$
500,000.00
|
|
d. Set
forth the cumulative aggregate of all Subordinated Debt
|
$_____________
|
|
Did
Agent Bank give prior written consent to the incurrence of all
Subordinated Debt set forth above
|
yes/no
|
|
Does
the interest rate accrued under the terms of any Subordinated Debt
exceed
six percent (6%) per annum?
|
yes/no
|
|
F. Capital
Expenditures
(Section 6.06): Set forth for the Fiscal Year period in which the
Fiscal
Quarter under review occurs, the cumulative aggregate amount of Capital
Expenditures made to the Casino Facilities as of the end of the Fiscal
Quarter under review, as follows:
|
||
a. Aggregate
amount of Non-Financed Capital Expenditures
|
$_____________
|
|
b. Aggregate
amount of Financed Capital Expenditures
|
$_____________
|
|
c. Total
Capital Expenditures (a + b)
|
$_____________
|
|
Minimum
Total Capital Expenditures Required: $250,000.00
|
||
Maximum
Non-Financed Capital Expenditures Permitted: $500,000.00
|
||
G. Other
Liens
(Section 6.07): On a separate sheet describe in detail any and all
liens,
encumbrances and/or negative pledges not
permitted under Section 6.07
|
______________
|
|
H. No
Merger
(Section 6.08): On a separate sheet describe any and all mergers,
consolidations and/or asset sales not permitted under Section
6.08
|
______________
|
|
I. Restriction
on Investments
(Section 6.09): Describe any Investments made which are not permitted
under Section 6.09
|
______________
|
|
J. Restrictions
on Distributions
(Section 6.10):
|
||
a. Set
forth the amount(s) of and describe on a separate sheet, all Distributions
made during the fiscal period under review.
|
$
|
|
Requirements:
|
||
(i) for
the four consecutive Fiscal Quarter period ending June 30, 2006,
aggregate
Distributions may not exceed $1,900,000.00.
|
||
(ii) except
as provided in (i) above, may not exceed $1,600,000.00 in the aggregate
during any Fiscal Year.
|
||
K. Contingent
Liabilities
(Section 6.11): Describe any Contingent Liabilities incurred by Borrowers
which are not permitted by Section 6.11
|
_____________
|
|
L. ERISA
(Section 6.12): Describe on a separate sheet any matters requiring
advice
to Banks under Section 6.12.
|
_____________
|
|
M. Margin
Regulations
(Section 6.13): Set forth the amount(s) of and describe on a separate
sheet of paper any proceeds of a Borrowing used by any Borrower to
purchase or carry any Margin Stock or to extend credit to others
for the
purpose of purchasing or carrying any Margin Stock.
|
$_____________
|
|
N. No
Subsidiaries
(Section 6.14): On a separate sheet, describe any Subsidiaries created
by
any Borrower subsequent to the Closing Date. State whether or not
the
creation of such Subsidiaries has been consented to by the Agent
Bank as
required under Section 6.14 of the Credit Agreement.
|
yes/no
|
|
O. Transactions
with Affiliates
(Section 6.15): Describe on a separate sheet any matters requiring
advice
to Banks under Section 6.15.
|
_____________
|
III.
NONUSAGE
FEE CALCULATION
(Section
2.09b): to be calculated with respect to each Fiscal Quarter under
review
following the first annual anniversary of the Closing
Date:
|
|
a. As
of the end of such Fiscal Quarter, the daily average during such
Fiscal
Quarter of the Maximum Permitted Balance (without regard to any
Availability Limit)
|
$_____________
|
b. Less
daily average during such Fiscal Quarter of the Funded
Outstandings
|
-
$_____________
|
c. Amount
of Nonusage
(a minus b)
|
$_____________
|
d. Nonusage
Percentage based on Leverage Ratio
See
Table Two in definition of Applicable Margin.
|
_____________
|
x. Xxxxx
Nonusage Fee
(c
times d)
|
$_____________
|
f. Number
of days in Fiscal Quarter under review
|
_____________
|
g. Nonusage
Fee for Fiscal Quarter under review
(e
¸
360 x f)
|
$_____________
|
IV.
AVAILABILITY
LIMIT
Availability
Limit:
For the Fiscal Quarter under review, set forth:
|
|
a. EBITDA
(enter IIA(m) above)
|
$
|
b. Multiplied
by the Maximum Permitted Leverage Ratio as of such Fiscal Quarter
end
|
x
|
Total
|
$
|
c. Less
Total Funded Debt (exclusive of the Aggregate Outstandings) See:
A(f) less
A(a).
|
-
$
|
d. Availability
Limit
|
$
|
V.
PERFORMANCE
OF OBLIGATIONS
A
review
of the activities of the Borrower Consolidation and Guarantor during the fiscal
period covered by the attached financial statements has been made under my
supervision with a view to determining whether during such fiscal period the
Borrower Consolidation and Guarantor performed and observed all of their
obligations under the Loan Documents. The undersigned is not aware of any facts
or circumstances which would make any of the calculations set forth above or
attached hereto materially incorrect. On the basis of the foregoing, the
undersigned certifies that the calculations made and the information contained
herein are derived from the books and records of the Borrower Consolidation
and
the Guarantor and that each and every matter contained herein correctly reflects
those books and records. Except as described in an attached document or in
an
earlier Certificate, to the best of my knowledge, as of the date of this
Certificate there is no Default or Event of Default has occurred or remains
continuing.
VI.
NO
MATERIAL ADVERSE CHANGE
To
the
best of my knowledge, except as described in an attached document or in an
earlier Certificate, no Material Adverse Change has occurred since the date
of
the most recent Certificate delivered to the Banks.
DATED
this ____ day of _____________, 200___.
BORROWERS:
WMCK
VENTURE CORP.,
a Delaware corporation, CENTURY
CASINOS CRIPPLE
CREEK,
INC.,
a Colorado corporation and WMCK
ACQUISITION CORP.,
a
Delaware
corporation
By________________________
Title:
Authorized Officer
Print
Name______________________
|
|
GUARANTOR:
CENTURY
CASINOS, INC.,
a
Delaware corporation
By_________________________
Name______________________
Title________________________
|
APN
____________________
AFTER
RECORDING THIS INSTRUMENT SHOULD BE RETURNED TO:
Xxxxxxx
X. Xxxxxxxxx
Xxxxxxxxx
& Xxxxxx, LLC
0000
Xxxxxxx Xxxx, Xxxxx X000
Xxxx,
XX
00000
SUBORDINATION
AGREEMENT (Management
Agreement)
THIS
SUBORDINATION AGREEMENT ("Agreement"), made this ___ day of _____________,
20___, by and among WMCK VENTURE CORP., a Delaware corporation, CENTURY CASINOS
CRIPPLE CREEK, INC., a Colorado corporation and WMCK ACQUISITION CORP., a
Delaware corporation (collectively the "Borrowers"), parties of the first part,
(hereinafter referred to as "Operator"), party of the second part, and XXXXX
FARGO BANK, National Association, as Agent Bank on behalf of itself and each
of
the Lenders and L/C Issuer, as defined and described in the Credit Agreement,
described hereinbelow, hereinafter referred to as "Agent Bank", party of the
third part.
R_E_C_I_T_A_L_S:
WHEREAS:
A.
Borrower owns all of that certain real property situated in Cripple Creek,
Colorado, that is more particularly described on that certain exhibit marked
"Exhibit A", affixed hereto and by this reference incorporated herein and made
a
part hereof, together with all buildings, structures and other improvements
constructed or to be constructed thereon (hereinafter referred to as the "Casino
Facilities").
B.
In
this Agreement all capitalized words and terms shall have the respective
meanings and be construed herein as provided in Section 1.01 of that certain
Amended and Restated Credit Agreement, dated as of April 21, 2000, as amended
by
First Amendment to Amended and Restated Credit Agreement dated as of August
22,
2001, by Second Amendment to Amended and Restated Credit Agreement
EXHIBIT
O TO FOURTH AMENDMENT
dated
as
of August 28, 2002, by Third Amendment to Amended and Restated Credit Agreement
dated as of October 27, 2004 and by Fourth Amendment to Amended and Restated
Credit Agreement dated as of September 23, 2005 (as may be further amended,
supplemented or otherwise modified from time to time, collectively the "Credit
Agreement"), executed by and among the Borrowers, Century Casinos, Inc., a
Delaware corporation, as Guarantor, and the Lenders and L/C Issuer therein
named, and Agent Bank, as administrative and collateral agent for itself and
for
the Lenders and L/C Issuer.
C.
Pursuant to the Credit Agreement and subject to the terms and conditions
specified therein, Lenders have established a revolving credit facility (the
"Credit Facility") in the initial principal amount of Twenty-Six Million Dollars
($26,000,000.00), together with a subfacility for the issuance of letters of
credit by L/C Issuer (the "L/C Facility"), all subject to the terms and
conditions set forth in the Credit Agreement. The Credit Facility is evidenced
by a Revolving Credit Note (the "Bank Note") in the principal sum of Twenty-Six
Million Dollars ($26,000,000.00) executed by the Borrowers, payable to the
order
of Agent Bank on behalf of Lenders. The Bank Facilities are secured by the
Deed
of Trust, Financing Statements and Assignment of Entitlements, Contracts, Rents
and Revenues executed by Borrowers in favor of Agent Bank and recorded in the
Official Records of Teller County, Colorado, together with all other documents
and instruments collectively referred to in the Credit Agreement and hereinafter
collectively referred to as the "Security Documentation".
D.
Borrowers have or are about to enter into a _______________________ Agreement
with Operator (hereinafter as it may be amended or modified from time to time
the "Management Agreement") under the terms of which Operator has agreed, in
exchange for certain payments, compensation and considerations therein
specified, to provide specified management services to Borrower in connection
with the Casino Facility.
E.
It is
a condition of consenting to the Management Agreement that the Security
Documentation shall unconditionally be at all times a lien or charge upon the
following (collectively, the "Collateral"): (i) the Casino Facility; (ii) the
present and future tangible and intangible personal property which is situated
at, or used in operation of, the Casino Facility; and (iii) the rents, issues,
profits, income and revenues of the Casino Facility and the activities conducted
thereon; all prior and senior to the rights of Operator under the terms of
the
Management Agreement.
F.
It is
a further condition of consenting to the Management Agreement that Operator
shall not receive any payments, service fees or management fees (collectively,
"Management Fees") under the Management Agreement unless the Borrower
Consolidation has realized a Leverage Ratio as of any Fiscal Quarter end
less
than
2.00 to 1.00 and the payments owing Agent Bank on behalf of the Lenders and/or
L/C Issuer under the terms of the Credit Agreement and Bank Note are current
and
there are no Defaults or Events of Default existing under the terms and
conditions of the Credit Agreement, as more particularly described hereinbelow.
G.
It is
to the mutual benefit of the parties hereto that Banks consent to the Management
Agreement and Operator is willing to agree that the Bank Facilities, Credit
Agreement and Security Documentation shall remain at all times prior to Bank
Facilities Termination unconditionally paramount and superior to the rights
and
interests of Operator under the Management Agreement.
H.
It is
to the mutual benefit of the parties hereto that Agent Bank on behalf of the
Lenders and/or L/C Issuer consent to the Management Agreement, and Operator
is
willing to immediately cease receiving payments under the Management Agreement
if any payment owing Lenders and/or L/C Issuer is not current under the terms
of
the Credit Agreement and Bank Note and/or there is a Default or Event of Default
existing under the terms of the Credit Agreement, as more particularly described
hereinbelow.
I.
The
provisions of Section 1.02 of the Credit Agreement shall be applied to this
Agreement in the same manner as applied therein to the Credit Agreement.
NOW,
THEREFORE, in consideration of Agent Bank, on behalf of the Lenders and L/C
Issuer, consenting to the Management Agreement, the mutual benefits accruing
to
the parties hereto and other good and valuable considerations, the receipt
of
which is hereby acknowledged, the parties hereto do promise, covenant and agree
as follows:
1.
That Agent
Bank, on behalf of the Lenders and L/C Issuer, would not consent to the
Management Agreement but for this Agreement.
2.
That the
Security Documentation securing the Bank Facilities in favor of Agent Bank,
on
behalf of the Lenders and L/C Issuer, and any and all renewals, amendments,
modifications, restatements and extensions thereof shall unconditionally be
and
remain at all times a lien or charge on the Collateral and business operations
conducted in connection therewith prior and superior to all right, title and
interest which Operator may have or hereafter acquire therein under the terms
of
the Management Agreement. Operator acknowledges that it is familiar with the
terms and conditions of all of the Security Documentation and hereby consents
to
execution, delivery, filing and recording thereof. In this regard it is
understood and hereby agreed that, notwithstanding anything contained in the
Management
Agreement
to the contrary, upon the consummation of any foreclosure or deed in lieu of
foreclosure, the Management Agreement shall be terminated and of no further
force or effect.
3.
So
long as any monetary obligation or other obligation or commitment to advance
funds under the Credit Agreement, the Bank Note or any other Loan Documents,
as
defined in the Credit Agreement (as such obligations may be renamed, increased
or extended, including, without limitation, post petition interest whether
or
not allowed in any insolvency proceedings, and fees, attorney costs and
indemnities under the Loan Documents, collectively the "Bank Debt") shall remain
unpaid or unfunded, in whole or in part, Operator shall not receive any payments
or Management Fees from the Borrower in connection with the Management
Agreement:
(a)
Until
the Borrower Consolidation has realized a Leverage Ratio as of any Fiscal
Quarter end of less than 2.00 to 1.00;
(b)
if a
Default or Event of Default, as defined in the Credit Agreement, shall have
occurred and is continuing under any Bank Debt; or
(c)
if
the making of such payment would create a Default or Event of Default, as
defined in the Credit Agreement.
4.
In the
event that any such payments or Management Fees are made in violation of Section
3 hereinabove, such payments shall not be accepted by Operator and, if so
accepted, shall be held in trust for the benefit of, and shall be paid forthwith
over and delivered to Agent Bank. The subordination provisions set forth
hereinabove are made for the benefit of Agent Bank, on behalf of the Lenders
and
L/C Issuer, and it is understood by Borrower and by Operator that Agent Bank,
on
behalf of the Lenders and L/C Issuer, will take certain actions in reliance
upon
such subordination provisions. It is further understood that Agent Bank's,
Lenders' and L/C Issuer's reliance upon the referenced subordination provisions
shall not constitute a waiver by Agent Bank, Lenders and L/C Issuer of their
right to insist upon strict compliance with all provisions of the Credit
Agreement and with all provisions of the Loan Documents as particularly defined
by the Credit Agreement.
5.
(a) In
the event of:
(i)
any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Borrower, its creditors
or its property;
(ii)
any
proceeding for the liquidation, dissolution or other winding-up of the Borrower,
voluntary or involuntary, whether or not involving insolvency, reorganization
or
bankruptcy proceedings;
(iii)
any
assignment by the Borrower for the benefit of creditors; or
(iv)
any
other marshalling of the assets of the Borrower;
all
Bank
Debt (including any interest thereon accruing after the commencement of any
such
proceedings and any other sums or premium due) shall first be paid in full
before any payment, whether in cash, securities or other property, shall be
made
in connection with the Management Agreement. Any payment or distribution,
whether in cash, securities or other property which would otherwise, but for
these subordination provisions, be payable or deliverable in respect of the
Management Agreement shall be paid or delivered directly to the holders of
Bank
Debt until all Bank Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full.
(b)
If
any payment or distribution of any character or any security, whether in cash,
securities or other property, shall be received by Operator in contravention
of
any of the terms hereof and before all Bank Debt shall have been paid in full,
such payment or distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the holder
of Bank Debt at the time outstanding for application to the payment of all
Bank
Debt remaining unpaid, to the extent necessary to pay all such Bank Debt in
full. In the event of the failure of Operator to endorse or assign any such
payment, distribution or security, each holder of Bank Debt is hereby
irrevocably authorized to endorse or assign the same.
(c)
The
Bank Debt shall not be deemed to have been paid in full unless the holder
thereof shall have indefeasibly received cash in lawful currency of the United
States of America equal to the amount of Bank Debt then outstanding.
(d)
Operator will take such action (including, without limitation, the execution
and
filing of a financing statement with respect to this Agreement and including
the
execution, verification, delivery and filing of proofs of claim, consents,
assignments or other instructions which the holder of the Bank Debt may require
in order to prove and realize upon any rights or claims pertaining to the
Management Agreement and to effectuate the full benefit of the subordination
contained herein) as may be necessary or appropriate to assure the effectiveness
of the subordination effected by these provisions.
(e)
Operator understands and acknowledges by its execution hereof that the actions
of the Agent Bank, Lenders and L/C Issuer in connection with the Bank Debt
are
being or have been made in reliance upon the absolute subordination of the
Management Agreement to Bank Debt as set forth herein.
6. Subject to the terms of the Credit Agreement and any amendment, revision,
restatement or modification thereof:
(a)
This
Agreement shall continue in effect so long as any Bank Debt shall remain unpaid
or Lenders have any obligation to lend or L/C Issuer has any obligation to
issue
Letters of Credit under the Credit Agreement and no action that the holder
of
the Bank Debt or the Borrower, with or without the written consent of the holder
of the Bank Debt, may take or refrain from taking with respect to any Bank
Debt,
any instrument representing the same, any collateral therefor, or any agreement
or agreements, including guaranties, in connection therewith, shall affect
this
Agreement or the obligations of Operator hereunder.
(b)
All
rights and interests of the Agent Bank, Lenders and L/C Issuer hereunder, and
all agreements and obligations of Operator and the Borrower under this
Agreement, shall remain in full force and effect irrespective of:
(i)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Bank Debt, or any other amendment or waiver of or any consent
to
departure from the Credit Agreement, the Bank Notes or any other Loan
Document;
(ii)
any
taking and holding of Collateral or other security or additional guarantees
for
all or any of the Bank Debt; or any amendment, alteration, exchange,
substitution, transfer, enforcement, waiver, subordination, termination or
release of any Collateral or such guarantees, or any non-perfection of any
Collateral, or any consent to departure from any such guaranty;
(iii)
any
manner of application of Collateral or proceeds thereof, to all or any of the
Bank Debt, or the manner of sale of any Collateral or other security;
(iv)
any
consent by any of the Agent Bank, Lenders or L/C Issuer or any other Person
to
the change, restructure or termination of the corporate structure or existence
of the Borrower or Operator, or any Subsidiary
thereof and any corresponding restructure of the Bank Debt, or any other
restructure of the Bank Debt or any portion thereof; or
(v)
any
modification, compounding, comprise, settlement, release by the Agent Bank,
Lenders or L/C Issuer or any of them or any other Person (or by operation of
law
or otherwise), collection or other liquidation of the Bank Debt or of the
Collateral or other security in whole or in part, and any refusal of payment
to
any Bank in whole or in part, from any obligor or guarantor in connection with
any of the Bank Debt, whether or not with notice to, or further assent by,
or
any reservation of rights against Operator.
Without
limiting the generality of the foregoing, Operator hereby consents to and agrees
that the rights of each Bank hereunder, and the enforceability hereof, shall
not
be affected by any release of any Collateral or security from the liens and
security interests created by any of the Loan Documents or any other agreement
whether for purposes of sales or other dispositions of assets or for any other
purpose. This Agreement shall continue to be effective or be reinstated, as
the
case may be, if at any time any payment of any of the Bank Debt is rescinded
or
must otherwise be returned by any Bank upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had
not
been made.
(c)
Operator waives the right to require the Agent Bank, Lenders or L/C Issuer
to
proceed against the Borrower or any other person liable on the Bank Debt, to
proceed against or exhaust any security held from the Borrower or any other
person, or to pursue any other remedy in the Agent Bank's, Lenders' or L/C
Issuer's power whatsoever and Operator waives the right to have the property
of
the Borrower first applied to the discharge of the Bank Debt. The Agent Bank,
Lenders or L/C Issuer may, at their election, exercise any right or remedy
they
may have against the Borrower or any security held by the Agent Bank on behalf
of the Lenders and/or the L/C Issuer, including, without limitation, the right
to foreclosure upon any such security by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
without affecting or impairing in any way the obligations of Operator hereunder,
except to the extent the Bank Debt has been paid, and Operator waives any
defense arising out of the absence, impairment or loss of any right of
reimbursement, contribution or subrogation or any other right or remedy of
Operator against the Borrower or any such security, whether resulting from
such
election by the Agent Bank on behalf of the Lenders and/or L/C Issuer.
7.
Operator hereby irrevocably agrees that any legal action or proceedings
initiated by Operator or against it by Agent Bank, Lenders or L/C Issuer with
respect to this Agreement shall be brought in the courts of the State of
Colorado or in the United States District Courts of Colorado and, by execution
and delivery of this Agreement, Operator consents to such jurisdiction and
hereby irrevocably waives any and all objections which it may have as to venue
in any of the above courts.
8.
Operator hereby agrees to be responsible for and to pay all costs and expenses,
including, without limitation, attorneys' fees and costs and accountants' fees,
incurred by the holder of the Bank Debt in connection with the successful
enforcement by the holder of the Bank Debt of its rights or the protection
of
the holder of the Bank Debt of its interests under this Agreement, whether
incurred pre-trial, at trial or on appeal.
9.
This
Agreement and the rights and obligations of the parties hereto shall be governed
by and construed and enforced in accordance with the laws of the State of
Colorado.
10.
Borrower joins in the execution of this Agreement to evidence its agreement
to
the terms hereof and to be legally bound hereby. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and their respective successors
and
assigns.
11.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which shall constitute one and the same document
with the same effect as if all parties had signed the same signature page.
Any
signature page of this Agreement may be detached from any counterpart of this
Agreement and reattached to any other counterpart of this Agreement identical
in
form hereto but having attached to it one or more additional signature pages.
12.
It is
understood and agreed that, by virtue of its execution and delivery of this
Agreement, Operator shall not be deemed to be a maker, surety or other obligor
of any of Borrower's Obligations (as defined by the Credit Agreement); however,
nothing contained in this Paragraph 12 shall relieve Operator from its
obligations to comply with the terms and conditions hereof.
IN
WITNESS WHEREOF, the undersigned has executed this Agreement, as of the day
and
year first above written.
OPERATOR:
BORROWERS:
________________________
WMCK VENTURE CORP., a Delaware corporation
By__________________________ By
____________________________________
Name____________________ Xxxxx Xxxxxxxxx,
Title_____________________ President
CENTURY
CASINOS CRIPPLE CREEK,
INC.,
a Colorado corporation
By
________________________________
Xxxxx Xxxxxxxxx,
President
WMCKACQUISITION CORP.,
a Delaware corporation
By _________________________________
Xxxxx
Xxxxxxxxx,
President
President
AGENT
BANK:
XXXXX
FARGO BANK,
National
Association,
Agent
Bank on behalf
of itself and
each
of the Lenders
and L/C Issuer
By_________________________
Xxxx
Xxxx,
Vice
President
STATE
OF
___________ )
) ss.
COUNTY
OF
__________ )
This
instrument was acknowledged before me on ________________,
20___,
by
_________________________ as ___________________________ of
___________________________________.
___________________________________
Notary
Public
STATE
OF
___________ )
) ss.
COUNTY
OF
__________ )
This
instrument was acknowledged before me on _______________, 20___, by XXXXX
XXXXXXXXX as President of WMCK VENTURE CORP.
______________________________________
Notary
Public
STATE
OF
___________ )
)
ss.
COUNTY
OF
__________ )
This
instrument was acknowledged before me on _______________, 20___, by XXXXX
XXXXXXXXX as President of CENTURY CASINOS CRIPPLE CREEK, INC.
__________________________________________
Notary
Public
STATE
OF
___________ )
)
ss.
COUNTY
OF
__________ )
This
instrument was acknowledged before me on _______________, 20___, by XXXXX
XXXXXXXXX as President of WMCK ACQUISITION CORP.
________________________________________
Notary
Public
STATE
OF
NEVADA )
) ss.
COUNTY
OF WASHOE )
This
instrument was acknowledged before me on _______________, 20___, by XXXX XXXX
as
Vice President of XXXXX FARGO BANK, NATIONAL ASSOCIATION.
_______________________________________________
Notary
Public