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EXHIBIT 10.1
BNC NATIONAL BANK OF MINNESOTA
LOAN AGREEMENT
Dated as of May 21, 1999
CONCORDE CRIPPLE CREEK, INC., a Colorado corporation, having its
mailing address and principal place of business at 0000 Xxxx Xxxxxx, X.X. Xxx
000, Xxxxx Xxxx, Xxxxx Xxxxxx 00000-0000 ( "BORROWER") and BNC NATIONAL BANK OF
MINNESOTA, a national banking association, having an office at 200 Metropolitan
Centre, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 (herein called the
"BANK"), agree as follows:
1. DEFINITIONS. Capitalized terms in this Agreement have the meanings
defined in the accompanying Definitions Supplement, which the Borrower
acknowledge receiving and which is hereby made a part of this Agreement.
2. LOAN COMMITMENT NUMBER 1: THE SHORT-TERM REVOLVER CREDIT COMMITMENT.
2.1. NATURE AND AMOUNT OF COMMITMENT. Subject to the terms and conditions of
this Agreement, the Bank shall make Advances upon the request of the
Borrower pursuant to a Short-Term Revolver Credit Commitment. The
maximum aggregate principal amount of all Advances outstanding at any
one time under the Short-Term Revolver Credit Commitment shall not
exceed $150,000.00.
2.2. THE SHORT-TERM REVOLVING NOTE. The Obligation of the Borrower to repay
Advances made pursuant to the Short-Term Revolver Credit Commitment
shall be evidenced by a single Short-Term Revolving Note of the
Borrower in the form of Exhibit A hereto to be made payable to the
order of the Bank by the Borrower in the principal amount of One
Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). The aggregate
principal amount of the indebtedness evidenced by such Short-Term
Revolving Note at any time shall be, however, and the same is to be
determined by, the aggregate principal amount of all Advances made to
the Borrower pursuant to the Short-Term Revolver Credit Commitment less
the aggregate amount of principal repayments received by the Bank upon
the indebtedness evidenced by the Short-Term Revolving Note.
2.3. SHORT-TERM REVOLVING NOTE INTEREST. The outstanding principal
indebtedness evidenced by the Short-Term Revolving Note shall bear
interest (computed upon the actual number of days elapsed in a 360-day
year) at the Reference Rate plus three-quarters percent (3/4 %) per
annum and shall change when, if and to the extent said Reference Rate
changes. All accrued and unpaid interest shall be payable in arrears
upon the last day of each month, commencing May 31, 1999, and
continuing on the last day of each calendar month thereafter and at
maturity (whether by acceleration or otherwise).
2.4. TERMINATION OF SHORT-TERM REVOLVING CREDIT COMMITMENT. The Short-Term
Revolving Credit Commitment shall terminate automatically upon the
earlier of (aa) May 15, 2000, or (bb) the occurrence of a Default or an
Event of Default, and the Bank's obligation to make Advances thereunder
shall terminate without notice on such date.
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3. LOAN COMMITMENT NO. 2: TERM LOAN COMMITMENT.
NATURE AND AMOUNT OF TERM LOAN COMMITMENT. Subject to the terms
and conditions of this Agreement, the Bank agrees to a single Advance
upon the request of either of the Borrower to refinance Equipment
pursuant to a Term Loan Commitment.
3.1. THE TERM NOTE. The obligation of Borrower to repay Advances made under
the Term Loan Commitment shall be evidenced by a single note of
Borrower in the form of Exhibit B hereto to be made payable to the
order of the Bank by Borrower in the principal amount of Eight Hundred
Fifty Thousand and 00/100 Dollars ($850,000.00). The principal balance
of the Term Note shall be due and payable in thirty-five (35)
installments of $10,119 on the last day of each calendar month,
commencing May 31, 1999, and one final installment of the remaining
principal amount outstanding on April 30, 2002
3.2. TERM NOTE INTEREST. The outstanding principal indebtedness evidenced by
the Term Note shall bear interest (computed upon the actual number of
days elapsed in a 360-day year) from the date hereof until paid at the
Reference Rate plus three-quarters percent (3/4%) per annum and shall
change when, if and to the extent said Reference Rate changes. All
accrued and unpaid interest shall be payable in arrears upon the last
day of each month, commencing May 31, 1999 and continuing on the last
day of each calendar month thereafter and at maturity (whether by
acceleration or otherwise). Principal amounts remaining unpaid after
the occurrence of a Default or an Event of Default under the Loan
Agreement shall bear interest from and after that date in time until
paid at a rate of two percent (2%) per annum plus the rate otherwise
payable.
3.3. TERMINATION OF TERM LOAN COMMITMENT. The Bank's obligation to make
Advances under this Section 3 shall terminate automatically upon the
earlier of (aa) thirty (30) days after the execution of this Agreement,
or (bb) the occurrence of a Default or an Event of Default.
4. PROCEDURES FOR LOAN REQUESTS/ADVANCES.
4.1. LOAN REQUESTS AND ADVANCES. The Bank may make Advances to Borrower in
any amount and in any manner requested orally or in writing by any
Person authorized to make requests on behalf of the Borrower. All
requests for Advances shall be made in amounts not less than $25,000
unless the Bank decides to accept a loan request for a lesser amount.
The proceeds of loans to be made pursuant to this Agreement shall be
made available to the Borrower at the office of the Bank in immediately
available funds on the date requested provided that the request is made
on a business day prior to 11:00 a.m. This Agreement is subject to the
general policies of the Bank regarding the administration of loan
requests.
5. OVERADVANCES. If at any time the aggregate principal amount of Advances
outstanding under this Agreement or any commitment hereunder shall exceed
any limitation set forth herein, the Borrower shall immediately pay to the
Bank the amount by which said principal amount exceeds the limitation.
6. PAYMENT/PREPAYMENT/APPLICATION/FEE.
6.1. MANNER OF MAKING PAYMENTS. All payments of principal and interest made
by the Borrower in respect of the Obligations shall be made to the Bank
at its offices at 200 Metropolitan Centre, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000, and in funds there current not later than 11:00
a.m. Minneapolis time on the date such payment is due or as the Bank
may otherwise direct. Any payments received after 11:00 a.m.
Minneapolis time (or after the time the Bank may otherwise direct)
shall be deemed received on the following Business Day.
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6.2. PREPAYMENT WITHOUT PENALTY. Borrower shall have the privilege of
prepaying any of the Obligations to the Bank without premium or
penalty, in whole or in part, together with accrued interest upon the
amount prepaid. All prepayments applied to principal shall be applied
to installments in the inverse order of maturity.
6.3. APPLICATIONS. The Bank in its discretion may apply any payment received
to any Obligation of the Borrower that is due and payable.
COMMITMENT FEE. Borrower agrees to pay to the Bank on the date
hereof a commitment fee equal to $10,000.
7. SECURITY AGREEMENT. As security for the repayment of the Obligations, the
Borrower shall duly execute and deliver to the Bank a Security Agreement in
a form acceptable to the Bank, granting a first Security Interest to the
Bank in and to the Collateral.
8. GUARANTY. As further security for repayment of the Obligations, each of
the Guarantor shall duly execute and deliver to the Bank an absolute and
unconditional Guaranty of the Obligations in a form acceptable to the Bank.
Such Guaranty shall be in addition to any and all existing Guaranty in favor
of the Bank.
9. GENERAL REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Bank as follows:
9.1. ORGANIZATION, QUALIFICATION AND OWNERSHIP. Borrower is a corporation
duly organized and validly existing under the laws of the State of
Colorado and it (i) has full and adequate corporate power to carry on
its business as now conducted, (ii) is duly licensed or qualified in
all jurisdictions wherein the nature of their activities require such
licensing or qualifying, and (iii) has full right and authority to
enter into and perform this Agreement.
9.2. FINANCIAL REPORTS. Borrower has delivered to the Bank a copy of the
audited financial report of the Borrower dated as of and for the period
ending September 30, 1998 (including a balance sheet and income and
cash flow statements and notes thereto). Borrower has also delivered
unaudited financial statements including a balance sheet and income and
cash flow statements for the periods ending March 31, 1999. Such
financial statements have been prepared in accordance with GAAP on a
basis consistent, except as otherwise noted therein, with that of the
previous fiscal year or period and fairly reflect the financial
position of the Borrower as of the dates thereof, and the results of
its operations for the periods covered thereby. Since the date of the
most recent financial statement, there has been no Material Adverse
Occurrence relating to the condition, financial or otherwise, of the
Borrower. Borrower has disclosed to the Bank in writing any and all
facts known to the Borrower or which the Borrower believes might
materially and adversely affect the business, operations and condition,
financial or otherwise, of the Borrower and the Borrower's ability to
perform their Obligations under the Loan Documents.
9.3. LITIGATION; TAX RETURNS. Except as disclosed to Bank in writing, there
is no litigation or governmental proceeding pending, nor to the
knowledge of the Borrower threatened, against the Borrower for which
there is a reasonable possibility of an adverse determination, that
would result in any Material Adverse Occurrence in the properties,
business or operations of the Borrower. All United States federal,
state and local income tax returns for the Borrower required to be
filed have been filed on a timely basis, and all amounts required to be
paid as shown by said returns have been paid in full. There are no
pending or threatened objections to or controversies in respect of the
United States federal income tax returns of the Borrower for any fiscal
year.
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9.4. REGULATION U. No part of the proceeds of any Advance hereunder will be
used to purchase or carry any margin stock or to extend credit to
others for such a purpose.
9.5. NO DEFAULT. As of the date of this Agreement, the Borrower is in full
compliance with all of the terms and conditions of this Agreement and
no Default or Event of Default is existing under this Agreement.
9.6. ERISA. To the extent applicable, Borrower is in compliance in all
material respects with ERISA.
9.7. LIENS. The Bank's Security Interests hereunder are first priority
Security Interests in all of the Collateral. There are no Security
Interests, liens or encumbrances on any of the Collateral except such
as are permitted by Subsection 11.4 or Security Interests in favor of
the Bank.
9.8. ENVIRONMENTAL LAW. Borrower has not received any notice to the effect
that their respective operations are not in compliance with any of the
requirements of applicable federal, state and local environmental,
health and safety statutes and regulations or are the subject of any
federal or state investigation evaluating whether any remedial action
is needed to respond to a release of any toxic or hazardous waste or
Hazardous Substance into the environment.
9.9. REAFFIRMATION WITH ADVANCES. Each representation and warranty shall be
deemed to be restated and reaffirmed to the Bank on and as of the date
of each Advance under this Agreement, except that any reference to the
financial statements referred to in this Section shall be deemed to
refer to the financial statements then most recently delivered to the
Bank pursuant to Section 10.
9.10. USE OF PROCEEDS. Borrower will use the proceeds of each Advance and
other extension of credit by the Bank hereunder only for working
capital purposes, except to the extent loans are made for the
refinancing of Equipment in accordance with this Agreement.
9.11. AUTHORIZATION; NO CONFLICT; NO APPROVALS, ETC. The execution and
delivery by Borrower of each of the Loan Documents and the performance
thereof by Borrower, have been duly authorized by all necessary
corporate action (including any necessary stockholder action) on its
part, and do not and will not: (i) contravene any laws, including
without limitation, any Gaming Laws currently in effect, applicable to
or binding on it, the Collateral or their respective businesses; (ii)
violate any provision of its respective charter or bylaws; (iii) result
in a breach of or constitute a default under (with or without the
giving of notice or lapse of time or both) any indenture, mortgage,
deed of trust, lease, loan or any other agreement or instrument to
which Borrower is a party; (iv) require any governmental license,
notice, consent or approval by any federal, state or local governmental
authority; or (v) require the Bank to provide any notice to or obtain
any license or other approval from any federal, state or local
governmental authority under any Gaming Laws.
9.12. LICENSES. Borrower has obtained all licenses, registrations and permits
required under any Gaming Laws for the conduct of its business and the
ownership and operation of the Equipment and the Bank is not required
to provide any notice nor obtain any license, permit or approval under
any Gaming Laws in connection with the execution of any Loan Documents
or the transactions evidenced thereby.
9.13. EQUIPMENT LIST. The Equipment described on Schedule 1 to the Security
Agreement and the current location of the Equipment is true and correct
in all respects.
10. AFFIRMATIVE COVENANTS. Borrower agrees that it will and will cause its
subsidiaries to:
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10.1. FINANCIAL INFORMATION.
ANNUAL FINANCIAL REPORT. Within one hundred five (105) days
after the end of Borrower's fiscal year provide the Bank with a
complete audited financial report prepared and certified without
qualification by Independent Public Accountants for the Borrower.
If the Borrower shall fail to supply said report timely, the Bank
shall have the right to employ certified public accountants
acceptable to the Bank at the Borrower's expense for said purpose.
10.1.1. MONTHLY FINANCIAL REPORTS/COVENANT COMPLIANCE CERTIFICATE. Within
thirty (30) days after the end of each calendar month commencing
May 31, 1999, provide the Bank with a balance sheet and income
statements of the Borrower for said month and year-to-date,
certified as correct by an officer or the controller of Borrower;
together with a Covenant Compliance Certificate certified as
correct by an officer or the controller of the Borrower.
10.1.2. ANNUAL FINANCIAL REPORT OF GUARANTOR. Within one hundred five
(105) days after the end of Guarantors fiscal year provide the
Bank with a complete audited financial report prepared and
certified without qualification by Independent Public Accountants
for the Guarantor. If the Guarantor shall fail to supply said
report timely, the Bank shall have the right to employ certified
public accountants acceptable to the Bank at the Borrower's
expense for said purpose.
MONTHLY FINANCIAL REPORTS OF GUARANTOR. Within thirty (30)
days after the end of each calendar month commencing May 31, 1999,
provide the Bank with a balance sheet and income statements of the
Guarantor for said month and year-to-date, certified as correct by
an officer or the controller of Guarantor.
SECURITIES REPORTS. As soon as available and in any event
within sixty (60) days after the end of the first three fiscal
quarters of each fiscal year of Guarantor, provide the Bank with
Form 10Q's of Guarantor, and within one hundred five (105) days
after the end of each fiscal year of Guarantor, provide the Bank
with Form 10K of Guarantor.
10.1.3. OTHER INFORMATION. From time to time, at the Bank's request, the
Borrower shall provide the Bank with any and all other material,
reports, information, or figures required by the Bank.
10.2. ACCESS TO RECORDS. Permit the Bank and its representatives access to,
and the right to make copies of, the books, records, and properties
of Borrower at all reasonable times; and permit the Bank and its
representative to discuss the financial matters of the Borrower and
its subsidiaries with all applicable officers and their Independent
Public Accountant (and, by this provision, Borrower authorizes its
Independent Public Accountant to participate in such discussions).
10.3. PAYMENT OF TAXES. Pay when due all taxes, assessments, and other
Liabilities against Borrower and its subsidiaries or its properties
except those which are being contested in good faith and for which an
adequate reserve has been established; Borrower and its subsidiaries
shall make all withholding payments when due.
10.4. NOTIFICATION OF MANAGEMENT CHANGE. Promptly notify the Bank in
writing of any substantial change in the present management of
Borrower.
10.5. ERISA PLAN COMPLIANCE. Pay when due all amounts necessary to fund in
accordance with its terms any Plan.
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10.6. COMPLIANCE WITH LAWS. Comply in all material respects with all laws,
acts, rules, regulations and orders of any legislative,
administrative or judicial body or official applicable to its
business operation or Collateral or any part thereof, including,
without limitation, all Gaming Laws; provided, however, that
Borrower may contest any such law, act, rule, regulation or order in
good faith by appropriate proceedings so long as (i) Borrower first
notifies the Bank in writing of such contest, and (ii) such contest
does not, in the Bank's sole discretion, adversely affect the Bank's
right or priority in the Collateral or impair Borrower's ability to
pay the Obligations when due.
NOTIFICATION OF PROCEEDINGS. Promptly notify the Bank in
writing and keep the Bank apprised of any litigation, governmental
or administrative proceeding which (i) involves any gaming license
or approval, (ii) involves an amount in dispute in excess of
$10,000, (iii) relates to the matters which are the subject of this
Agreement, or (iv) if determined adversely to Borrower, would be a
Material Adverse Occurrence.
10.7. BANK ACCOUNTS. Maintain Borrower's business accounts at the Bank.
10.8. MINIMUM CASH COVERAGE. As of each fiscal year end, the Borrower
shall maintain the ratio of (i) EBITDA to (ii) Debt Service plus
taxes of not less than 3.5 to 1.0 for fiscal year end September 30,
1999 and for each fiscal year end thereafter.
10.9. MINIMUM NET INCOME. Earn a minimum Net Income of at least $200,000
in each fiscal year.
10.10. DEBT LEVEL. Maintain the ratio of: (i) Liabilities minus the
outstanding principal amount of Subordinated Debt to (ii) Capital
Base at not greater than the ratio of 1.0 to 1.0 at all times.
10.11. CAPITAL BASE. As of its fiscal year end September 30, 1999, maintain
a Capital Base of at least $1,500,000 and as of each fiscal year end
thereafter, maintain a Capital Base of at least $50,000 greater than
the most recent fiscal year end.
10.12. MORTGAGE. Promptly upon receipt of legal title to parking stalls
located in a condominium parking garage to be constructed pursuant
to that certain Agreement to Subject Property to Condominium Regime
dated October 22, 1997, as amended, by and among Borrower, KMM
Parking LLC, a Colorado limited liability company, and Elevation
8000+, a Colorado limited liability company, execute and deliver to
the Bank a mortgage on such parking stalls in form and substance
satisfactory to the Bank.
10.13. EXCESS AVAILABLE CASH FLOW. No later than 90 days after each fiscal
year end, Borrower shall prepay principal on the Term Note by the
amount that Available Cash Flow exceeds permitted management fees.
11. NEGATIVE COVENANTS. Borrower agrees that it will not:
11.1. CAPITAL EXPENDITURES. Expend or contract to expend more than
$100,000 during any fiscal year for fixed assets, including
Equipment, whether by way of purchase, capital lease or otherwise,
and whether payable currently or in the future.
11.2. RESTRICTION ON INDEBTEDNESS. The Borrower will not create, incur,
assume or have outstanding any indebtedness for borrowed money
(including capitalized leases) except (i) any indebtedness owing to
the Bank, and (ii) any other indebtedness outstanding on the date
hereof, and shown on the Borrower's financial statements delivered
to the Bank prior to the date hereof, provided that such other
indebtedness shall not be renewed, extended or increased.
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11.3. PROHIBITION AGAINST DISTRIBUTIONS. Purchase or redeem any shares of
Borrower or declare or pay any dividends (other than dividends
payable in capital stock) or make any distribution to stockholders of
any assets of Borrower or make any distribution which would result in
an Event of Default.
11.4. NEGATIVE PLEDGES. Create or permit to exist any Security Interest on
the Bank's Collateral, now owned or hereafter acquired except: (i)
those created in the Bank's favor and held by the Bank; or (ii) liens
of current taxes not delinquent or taxes which are being contested in
good faith for which a full cash reserve has been established at the
Bank.
11.5. REORGANIZATION. Effect any material recapitalization; or be a party
to any merger or consolidation; or, except in the normal course of
business, sell, transfer, convey or lease all or any substantial part
of its property;
11.6. NEW BUSINESS. Enter into or invest in, or purchase any new business,
except for investments not to exceed $100,000 per year that are not
otherwise prohibited.
11.7. DEBTS FROM INSIDERS. Permit any amount to be owing to Borrower by all
or any of their respective employees, officers, directors, or
shareholders, or members of their families, as a result of any
borrowings, purchases, investments, travel advances or other
transactions or events in excess of $100,000 in the aggregate.
11.8. CONDITIONAL OBLIGATIONS. Become a guarantor or surety or pledge its
credit or its Collateral on any undertaking of another, except to
Borrower's customers in the ordinary course of business.
11.9. OTHER DEFAULTS. Permit any default to occur under the terms of any
note, loan agreement, lease, Mortgage, contract for deed, security
agreement, or other contractual obligation binding upon Borrower
which would, with the giving of notice or passage of time, permit the
acceleration or otherwise result in the maturity of Liabilities
exceeding $50,000 in the aggregate.
11.10. FISCAL YEARS. Change its fiscal year.
11.11. ERISA VIOLATIONS. Violate any provision of ERISA or of any Plan.
11.12. INCONSISTENT AGREEMENTS. Enter into any agreement containing any
provision which would be violated or breached by Borrower by the
performance by Borrower of their Obligations under any Loan Document.
11.13. MANAGEMENT FEES. Pay management fees in excess of Available Cash Flow
or in any event pay management fees exceeding $37,500 per month
during fiscal year 1999, $28,000 per month during fiscal year 2000,
$31,000 per month during fiscal year 2001 and $34,000 per month
during fiscal year 2002, $31,000 per month during fiscal year 2001
and $34,000 per month during fiscal year 2002.
12. DEFAULT AND REMEDIES. It shall be an Event of Default under this
Agreement if any one of the following shall occur:
12.1 Borrower fails to make any payment required under this Agreement or
any present or future supplements hereto or under any other agreement
between Borrower and the Bank, including the Loan Documents, within
ten (10) days following the date first due, or if payable upon
demand; or
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12.2 Borrower fails to observe or perform any covenant, condition or
agreement in this Agreement, any of the other Loan Documents or in
any other agreement between the Borrower and the Bank when and as
required; or
12.3 Any warranty, representation or statement made or furnished to the
Bank by or on behalf of Borrower or any Guarantor proves to have been
false in a material respect when made or reaffirmed by the Borrower
or Guarantor; or
12.4 Borrower or any Guarantor becomes insolvent or Borrower or any
Guarantor generally fails to pay, or admit in writing its or his
inability to pay, its or his debts as they become due; or
12.5 Borrower or any Guarantor applies for, consents to, or acquiesces in,
the appointment of a trustee, receiver or other custodian for it or
him or for any of its or his property, or makes a general assignment
for the benefit of creditors; or, in the absence of such application,
consent or acquiescence, a trustee, receiver or other custodian is
appointed for Borrower or for Guarantor or for a substantial part of
Borrower's or any Guarantor's property; or
12.6 Any bankruptcy reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution
or liquidation proceeding is commenced in respect of Borrower or any
Guarantor; or
12.7 Any judgments, writs, warrants of attachment, executions or similar
process (not covered by insurance) in the aggregate amount that
exceeds $50,000 is issued or levied against Borrower, any Guarantor
or any of its or his assets and is not released, vacated or fully
bonded prior to any sale and in any event within thirty (30) days
after its issue or levy; or
12.8 Guarantor attempts to revoke its Guaranty.
Upon the occurrence of any Event of Default, all Obligations shall be and
become immediately due and payable, at the option of the Bank, without any
declaration, notice, presentment, protest, demand or dishonor of any kind
(all of which are hereby waived) and the Borrower' ability to obtain any
additional Advances under this Agreement shall be immediately and
automatically terminated. Upon the occurrence of an Event of Default, the
Bank shall have all the rights and remedies of a secured party under the
Commercial Code, including, without limitation, any and all rights and
remedies provided under the Security Agreement.
13. CONDITIONS PRECEDENT TO LOANS. Without limiting the other conditions of
this Agreement, the obligation of the Bank to make any Advance under this
Agreement is further subject to the condition precedent that the Bank shall
have received on or before the date of the initial Advance to be made
hereunder all of the following:
13.1 The Short-Term Revolving Note, the Term Note, the Security Agreement
and each of the other Loan Documents, each executed and delivered by
the Borrower and any other applicable party;
13.2 UCC searches from the filing offices in all states required by the
Bank which reflect that the Bank holds a first priority Security
Interest and no other Person holds a Security Interest in any
Collateral of Borrower, except for Security Interests permitted by
Subsection 11.4.;
13.3 A Guaranty, in form and substance satisfactory to the Bank,
appropriately completed and duly executed by the Guarantor;
13.4 Corporate resolutions of the Borrower in a form acceptable to the
Bank;
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13.5 A copy of the Borrower's articles of incorporation certified by the
Secretary of State and a copy of the Borrower' by-laws;
13.6 A Certificate of Good Standing for the Borrower issued by its state
of incorporation and by those states requested by the Bank;
13.7 Evidence of insurance for all insurance required by the Loan
Documents;
13.8 An officer's certificate, in form and substance satisfactory to the
Bank, executed by the President of Borrower (the "Officer's
Certificate"); and
13.9 The Assignment of Lease in form and substance satisfactory to the
Bank, assigning the Borrower's lease with Elevation 8000+, a Colorado
limited liability company (the "Landlord"), executed and delivered by
Borrower and Landlord.
14. MISCELLANEOUS.
14.1 The performance or observance of any affirmative or negative covenant
or other provision of this Agreement and any supplement hereto may be
waived by the Bank in a writing signed by the Bank but not otherwise.
No delay on the part of the Bank in the exercise of any remedy, power
or right shall operate as a waiver thereof, nor shall any single or
partial exercise of any remedy, power or right preclude other or
further exercise thereof or the exercise of any other remedy, power
or right. Each of the rights and remedies of the Bank under this
Agreement will be cumulative and not exclusive of any other right or
remedy which the Bank may have hereunder or as allowed by law.
14.2 Any notice, demand or consent authorized by this Agreement to be
given to Borrower or the Bank shall be deemed to be given when
transmitted by telex or telecopier or personally delivered, or three
days after being deposited in the U.S. mail, postage prepaid, or one
day after delivery to Federal Express or other overnight courier
service, in each case addressed to the respective address shown in
the opening paragraph of this Agreement, or at such other address as
may be provided from time to time by either party in writing as the
designated address for notice hereunder.
14.3 This Agreement, including exhibits and schedules and other agreements
referred to herein, is the entire agreement between the parties,
cannot be changed, terminated or amended orally, and shall be deemed
effective as of the date it is accepted by the Bank.
14.4 Borrower agrees to pay and will reimburse the Bank on demand for all
reasonable out-of-pocket expenses incurred by the Bank relating to
this Agreement, including without limitation filing and recording
fees and reasonable attorneys' fees and reasonable legal expenses,
including costs of in- house counsel (whether or not suit is
commenced), whether incurred in the negotiation and preparation of
this Agreement, in the protection and perfection of the Bank's
Security Interest in the Collateral, in the enforcement of any of the
provisions of this Agreement or of the Bank's rights and remedies
hereunder and against the Collateral, in the defense of any claim or
claims made or threatened against the Bank arising out of this
transaction, or otherwise including, without limitation, in each
instance, all reasonable attorneys' fees and legal expenses incurred
in connection with any appeal of a lower court's order or judgment.
14.5 This Agreement and obligations thereunder shall be binding upon
Borrower and the Bank and their respective successors, assigns,
heirs, and personal representatives and shall inure to the benefit
of, the Bank and the successors and assigns of the Bank, except that
Borrower may not assign or transfer their rights hereunder without
the prior written consent of the Bank, and any
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assignment or transfer in violation of this provision shall be null
and void. In connection with the actual or prospective sale by the
Bank of any interest or participation in the Obligations, Borrower
authorizes the Bank to furnish any information in its possession,
however acquired, concerning Borrower or any of their Affiliates to
any Person or entity.
14.6 If any Person shall acquire a participation in Advances made to
Borrower hereunder, Borrower hereby grant to any such Person holding
a participation, and such Person shall have and is hereby given a
continuing Security Interest in any money, securities and other
property of Borrower in the custody or possession of such Participant
as fully as if such Participant had lent directly to the Borrower the
amount of such participation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BNC NATIONAL BANK OF MINNESOTA
By: /s/ Xxxxx X. Xxxx
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Its: Vice President
CONCORDE CRIPPLE CREEK, INC.
By: /s/ Xxxxx X. Xxxx
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Its: President
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DEFINITIONS SUPPLEMENT
TO
BNC NATIONAL BANK OF MINNESOTA
LOAN AGREEMENT
"ADVANCES" shall mean loans made by the Bank to the Borrower hereunder
and all loans evidenced by existing notes of the Borrower made payable to the
Bank.
"AFFILIATE" shall include, with respect to any party, any Person which
directly or indirectly controls, is controlled by, or is under common control
with such party and, in addition, in the case of Borrower, each officer,
director, shareholder, joint venturer or a partner of Borrower.
"AGREEMENT" shall mean this agreement as supplemented, revised and
modified from time to time.
"AVAILABLE CASH FLOW" for any fiscal year shall mean Borrower's EBITDA
minus the sum of the following: capital expenditures permitted under this
Agreement, taxes, interest, and scheduled principal payments.
"CAPITAL BASE" of Borrower at any date shall mean on a consolidated
basis with their subsidiaries the sum of (i) the Tangible Net Worth on such date
plus (ii) the outstanding principal amount of Subordinated Debt on such date.
"BORROWER" shall mean Concorde Cripple Creek, Inc., a Colorado
corporation.
"COLLATERAL" shall have the meaning provided in the Security Agreement.
"COMMERCIAL CODE" shall mean the Uniform Commercial Code as enacted in
the State of Minnesota, as amended from time to time.
"CONTINGENT OBLIGATIONS" shall mean, with respect to any Person, all of
such Person's liabilities and obligations which are based upon one or more
contracts and are contingent upon and will not mature unless and until the
occurrence of some event or circumstance and which are not included within the
definition of Liabilities of such Person.
"COVENANT COMPLIANCE CERTIFICATE" shall mean the Compliance Certificate
in the form of Exhibit C to the Agreement or such other form as the Bank may
require from time to time.
"DEBT SERVICE" shall mean all scheduled payments of principal and
interest on the Liabilities of the Borrower.
"DEFAULT" shall mean any event which, with the giving of notice or
passage of time, or both, would constitute an Event of Default.
"EBITDA" shall mean the Net Income of the Borrower plus interest,
taxes, depreciation and amortization, each as determined in accordance with
GAAP.
"EQUIPMENT" shall have the meaning provided in the Security Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended, and the rules and regulations
promulgated thereunder by any governmental agency or authority, as from time to
time in effect.
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"EVENT OF DEFAULT" shall have the meaning provided in Section 16 of the
Agreement
"GAAP" shall mean Generally Accepted Accounting Principles consistently
applied and maintained throughout the period indicated and consistent with the
financial statements delivered to Bank pursuant to Section 9.2 of the Agreement.
Whenever any accounting term is used herein which is not otherwise defined, it
shall be interpreted in accordance with GAAP.
"GAMING LAWS" shall mean any federal, state or local laws, rules,
regulations or ordinances applicable to the conduct of either of the Borrower's
gaming businesses, including, without limitation, the ownership and operation of
the Equipment.
"GUARANTOR(S)" shall mean Concorde Gaming Corporation, a Colorado
corporation, and any other Person who enters into a Guaranty of any of the
Obligations.
"GUARANTY(IES)" shall mean that certain Guaranty dated as of the date
hereof from Concorde Gaming Corporation, a Colorado corporation, and any other
agreement whereby a Person guarantees the payment or performance of any of the
Obligations.
"HAZARDOUS SUBSTANCE" shall mean any "hazardous substance," "hazardous
waste," "pollutant," "contaminant" or other similar material as defined by any
United States federal, state, or local law or rule applicable to Borrower or any
of the Collateral.
"INDEPENDENT PUBLIC ACCOUNTANTS" shall mean any firm of independent
certified public accountants which is acceptable to the Bank.
"INVESTMENTS" shall mean, with respect to any Person, all investments
by such Person in any other Persons in the form of loans or guaranties, advances
or capital contributions (excluding commission, travel, relocation, and other
advances to employees, officers, directors or shareholders, or members of their
families, made in the ordinary course of business), purchases or other
acquisitions for consideration of debt or equity or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"LEASE ASSIGNMENT" shall mean a Waiver of Interest, Assignment of Lease
and Agreement Concerning Assumption of Lease by and among Borrower, Bank and
Elevation 8000+, a Colorado limited liability company, in form and substance
satisfactory to the Bank.
"LIABILITIES" of any Person shall mean those items which, in accordance
with GAAP, would appear as Liabilities on a balance sheet.
"LOAN DOCUMENT(S)" shall mean individually or collectively, as the case
may be, the Agreement, the Guaranty, the Short-Term Revolving Note, the Term
Note, the Security Agreement, the Lease Assignment and any and all other
documents executed, delivered or referred to herein, as originally executed and
as amended, revised, supplemented and replaced from time to time.
"MATERIAL ADVERSE OCCURRENCE" shall mean any occurrence of whatever
nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental investigation or proceeding) which
materially adversely affects the present or prospective financial condition or
operations of either of the Borrower, any of their subsidiaries, and/or a
Guarantor or impair the ability of either of the Borrower and/or a Guarantor to
perform its or their Obligations under this Agreement or any other Loan
Document.
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"NET INCOME" for any period shall mean the Net Income of the Borrower
for such period, determined in accordance with GAAP excluding, however, (1)
extraordinary gains, and (2) gains whether or not extraordinary from sales or
other dispositions of assets other than the sale of Inventory in the ordinary
course of business.
"OBLIGATIONS" shall have the meaning provided in the Security
Agreement.
"PERSON" shall mean any natural person, corporation, firm, partnership,
association, government, governmental agency or any other entity, whether acting
in an individual, fiduciary or other capacity.
"PLAN" shall mean each employee benefit Plan or other class of benefits
covered by Title IV of ERISA, in either case whether now in existence or
hereafter instituted, of Borrower.
"REFERENCE RATE" shall at any time mean at the time any determination
thereof is to be made, the fluctuating per annum rate of interest then most
recently reported in the Wall Street Journal as the "Prime Rate" (the base rate
on corporate loans at the 30 largest U.S. money center commercial banks) and if
reported as a range, the interest rate shall be the mid-point of the range. In
the event that the Wall Street Journal ceases to report the Prime Rate, then
"Prime Rate" shall mean the fluctuating interest rate per annum announced from
time to time by the Bank as its Prime Rate (or, if otherwise denominated, such
Lender's or Bank's reference rate for interest rate calculations on general
commercial loans for short-term borrowings). The Borrower acknowledge that the
Reference Rate may not be the lowest rate made available by Bank to its
customers and that Bank may lend to its customers at rates that are at, above or
below the Reference Rate.
"SECURITY AGREEMENT" shall mean that certain Security Agreement of even
date herewith, and any and all other Security Agreements heretofore or
hereafter, executed by the Borrower, as debtor, in favor of the Bank, as secured
party.
"SECURITY INTEREST" shall mean any lien, pledge, mortgage, encumbrance,
charge or security interest of any kind whatsoever (including, without
limitation, the lien or retained security title of a conditional vendor) whether
arising under a security instrument or as a matter of law, judicial process or
otherwise or the agreement by Borrower to grant any lien, security interest or
pledge, mortgage or encumber any asset.
"SHORT-TERM REVOLVER CREDIT COMMITMENT" shall mean the obligation of
the Bank to make Advances pursuant to Section 2 of the Agreement.
"SHORT-TERM REVOLVING NOTE" shall mean the Short-Term Revolving Note
referred to in Section 2 of the Agreement.
"SUBORDINATED DEBT" shall mean indebtedness of Borrower for borrowed
money which is subordinated to the Obligations in writing on terms satisfactory
to Bank in its sole discretion.
"TANGIBLE NET WORTH" of Borrower and the subsidiaries shall mean on a
consolidated basis, the total of all assets appearing on a balance sheet of
Borrower, prepared in accordance with GAAP, after deducting all proper reserves
(including reserves for depreciation, obsolescence and amortization) minus all
Liabilities of such entities; excluding, however, from the determination of
total assets: (i) goodwill, memberships, trademarks, trade names, service marks,
copyrights, patents, licenses, organization expenses, research and development
expenses and other similar intangibles; (ii) all deferred charges or unamortized
debt discount; (iii) treasury stock; (iv) securities that are not readily
marketable; (v) any write-up in the book value of any assets resulting from a
revaluation thereof subsequent to September 30, 1998; (vi) prepaid expenses;
(vii) notes or receivables due from employees, officers, directors or
shareholders; (viii) notes or receivables due from any Affiliate; (ix) all other
intangible assets in existence
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on the date of this Agreement and determined by Bank, in its absolute
discretion, to be intangible assets; and (x) any asset acquired subsequent to
the date of this Agreement which the Bank determines, in its reasonable
discretion, to be an intangible asset.
"TERM LOAN COMMITMENT" shall mean the obligation of the Bank to make
Advances pursuant to Section 3 of the Agreement.
"TERM NOTE" shall mean the promissory note referred to in Section 3 of
the Agreement.
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EXHIBIT A
$150,000.00 Minneapolis, Minnesota
May 21, 1999
SHORT-TERM REVOLVING NOTE
FOR VALUE RECEIVED, each of the undersigned, hereby jointly and
severally promises to pay to the order of BNC NATIONAL BANK (the "BANK") in the
lawful money of the United States at its offices at 200 Metropolitan Centre,
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, or at such other place as the
Bank may from time-to-time designate:
(i) the principal sum of One Hundred Fifty Thousand and 00/100
($150,000.00) Dollars, or such other principal amount as may
be owing to Bank for the repayment of loans made pursuant to
the Short-Term Revolving Credit Commitment as set forth in
that certain Loan Agreement dated of even date herewith,
between Bank and the undersigned as the same may be amended
from time to time (the "LOAN AGREEMENT"), which sum shall be
due and payable in full on May 15, 2000; plus
(ii) interest on the unpaid principal amount of this Note from
time-to-time outstanding payable in arrears at a rate of
interest equal to the Reference Rate (as defined in the Loan
Agreement) plus three-quarters percent (3/4 %) per annum
(calculated on the basis of the number of days actually
elapsed in a 360-day year) on the last day of each calendar
month commencing with the first month following the date
hereof. Following the occurrence of an Event of Default as
defined in the Loan Agreement, the principal indebtedness
shall bear interest at a floating rate of two percent (2%)
per annum greater than the otherwise applicable rate.
This Note is the "Short-Term Revolving Note" referred to in the Loan
Agreement and is subject to all of the agreements, terms and conditions therein
contained which are incorporated herein by reference. In no event shall
interest hereunder be in excess of the maximum interest rate permitted by law.
This Note has been delivered in the State of Minnesota and shall be
construed and enforced in accordance with the substantive laws of such state.
Each of the undersigned and all guarantors expressly waive any
presentment, demand, protest, notice of protest, and notice of dishonor.
CONCORDE CRIPPLE CREEK, INC.,
a Colorado corporation
By
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Its
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Witness:
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EXHIBIT B
$850,000.00 Minneapolis, Minnesota
May 21, 1999
TERM NOTE
FOR VALUE RECEIVED, each of the undersigned hereby jointly and
severally promises to pay to the order of BNC NATIONAL BANK OF MINNESOTA (the
"BANK") in the lawful money of the United States of America at its offices at
200 Metropolitan Centre, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, or at such other place as the Bank may from time-to-time designate:
(i) the principal sum of Eight Hundred Fifty Thousand and 00/100
($850,000.00) Dollars, which principal amount shall be due
and payable in thirty-five (35) installments of $10,119.05
each on the last day of each calendar month commencing on May
31, 1999 and one final installment of the remaining principal
amount on April 30, 2002; plus
(ii) interest on the unpaid principal amount of this Note from
time to time outstanding from the date hereof at a floating
rate equal to three-quarters percent (3/4%) in excess of the
Reference Rate (as defined in the Loan Agreement) per annum,
calculated on the number of days actually elapsed in a
360-day year, due and payable on the last day of each
calendar month, commencing May 31, 1999, and at maturity
(whether by acceleration or otherwise). Principal amounts
remaining unpaid after the occurrence of an Event of Default
under the Loan Agreement shall bear interest from and after
that date in time until paid at a rate of 2% per annum plus
the rate otherwise payable.
This Note is the "TERM NOTE" within the meaning of that certain Loan
Agreement between the undersigned and the Bank of even date herewith (the "LOAN
AGREEMENT"). All of the terms and conditions set forth in the Agreement are
hereby incorporated by this reference, including without limitation the right
of holder hereto to accelerate all amounts evidenced by the Note upon the
occurrence of an Event of Default within the meaning of the Agreement.
This Note has been delivered in the State of Minnesota and shall be
construed and enforced in accordance with the substantive laws thereof.
The undersigned and all guarantors expressly waive any right of
presentment, demand, protest or notice of protest or notice of dishonor.
CONCORDE CRIPPLE CREEK, INC.,
a Colorado corporation
By
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Its
---------------------------------
Witness:
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