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EXHIBIT 10(f)
SECOND AMENDMENT TO LOAN AGREEMENT AND TERM AND
REVOLVING CREDIT PROMISSORY NOTE
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND TERM AND REVOLVING CREDIT
PROMISSORY NOTE ("Second Amended Agreement") is entered into as of the 15th day
of October, 1996, by and among ZANTE, INC., a Nevada corporation ("Borrower"),
THE SANDS REGENT, a Nevada corporation ("Sands Regent") and XXXXX FARGO BANK,
National Association and THE SUMITOMO BANK, LIMITED (collectively the "Lenders")
and XXXXX FARGO BANK, National Association, as administrative and collateral
agent for the Lenders (herein, in such capacity, called the "Agent Bank" and,
together with the Lenders, collectively referred to as the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. On or about March 31, 1993, First Interstate Bank of Nevada,
National Association ("FINV"), First Interstate Bank of California ("FICAL") and
The Daiwa Bank, Limited (hereinafter "Daiwa" and together with FINV and FICAL
collectively referred to as the "Closing Lenders") entered into a Loan Agreement
(hereinafter referred to as the "Original Loan Agreement") with Borrower under
the terms of which, among other things, the Closing Lenders agreed to loan to
Borrower a principal sum not to exceed Twenty-Three Million Six Hundred Nine
Thousand Five Hundred Sixteen Dollars ($23,609,516.00) as evidenced by a Term
and Revolving Credit Promissory Note of even date therewith (as amended, the
"Original Note").
B. On or about January 26, 1994, FINV acquired all interest of FICAL in
and to the Loan pursuant to that certain Assignment and Assumption Agreement for
Participation Interest in Loan of even date therewith.
C. On or about June 27, 1994, FINV and Daiwa entered into a First
Amendment to Loan Agreement with Borrower (the "First Amendment to Loan
Agreement", and together with the Original Loan Agreement, the "Existing Loan
Agreement"), under the terms of which, among other things, the financial
covenants set forth by Section 5.14 of the Original Loan Agreement were
modified.
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D. The Sumitomo Bank, Ltd. acquired the interest of Daiwa by Assignment
and Assumption Agreement for Participation in Loan dated as of February 2, 1996.
Xxxxx Fargo Bank, National Association, is the successor by merger to First
Interstate Bank of Nevada, National Association.
E. Borrower and Lenders desire to amend the Existing Loan Agreement and
Original Note for the purpose of: (i) waiving certain financial covenant
non-compliance for the Fiscal Quarters more particularly hereinafter described,
(ii) amending certain financial covenants effective as of the Fiscal Quarter
ending September 30, 1996, (iii) requiring principal prepayment as hereinafter
described and amending the Scheduled Maximum Principal Amount schedule attached
as Exhibit A to the Note, and (iv) prohibiting Distributions by Borrower to
Sands Regent.
X. Xxxxx have agreed to the amendments and modifications to the
Existing Loan Agreement and Note set forth in Recital Paragraph E hereinabove on
the terms and conditions more particularly hereinafter described.
G. In this Second Amended Agreement all capitalized words and terms not
otherwise defined or redefined herein shall have the respective meanings and be
construed herein as provided in Section 1.01 of the Existing Loan Agreement and
any reference to a provision of the Existing Loan 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.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the parties hereto do agree to amend the Existing Loan
Agreement and Original Note by substituting the amended terms and provisions as
hereinafter set forth, which amended terms shall be deemed effective as of the
Second Amendment Effective Date, unless otherwise specifically provided, as
follows:
1. Additional/Amended Definitions. Section 1.01 of the Existing Loan
Agreement entitled "Definitions" shall be amended by the following additions and
modifications to the definitions set forth hereinbelow which shall supersede and
restate, where previously defined, the applicable definition as originally set
forth in the Existing Loan Agreement:
"Capital Expenditures" shall mean, for any period, without duplication,
the aggregate of all expenditures
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(whether paid in cash or accrued as liabilities during that period and including
capitalized lease liabilities) by the Borrower during such period that, in
conformity with GAAP, are required to be included in or reflected by the
property, plant or equipment or similar fixed or capital asset accounts
reflected in the consolidated balance sheet of the Borrower (including equipment
which is purchased simultaneously with the trade-in of existing equipment owned
by Borrower to the extent of (a) the gross amount of such purchase price less
(b) the cash proceeds or trade-in credit of the equipment being traded in at
such time), but excluding capital expenditures made in connection with the
replacement or restoration of assets, to the extent reimbursed or refinanced
from insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored, or from awards of compensation arising from the
taking by condemnation of or the exercise of the power of eminent domain with
respect to such assets being replaced or restored.
"Closing Lenders" shall have the meaning ascribed to such term in
Recital Paragraph A of the Second Amended Agreement.
"Distributions" shall mean and collectively refer to any and all cash
dividends, loans, management fees, payments, advances, stock redemptions or
repurchases or other distributions, fees or compensation of any kind or
character whatsoever made by Borrower to Sands Regent.
"Existing Loan Agreement" shall have the meaning ascribed to such term
in Recital Paragraph C of the Second Amended Agreement.
"First Amendment to Loan Agreement" shall have the meaning ascribed to
such term in Recital Paragraph C of the Second Amended Agreement.
"Loan Agreement" shall mean the Existing Loan Agreement as amended by
the Second Amended Agreement, as such instrument may hereafter be amended,
modified, renewed or restated.
"Note" shall mean the Original Note as amended by the Second Amended
Agreement as such instrument may hereafter be amended, modified, renewed or
restated.
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"Original Loan Agreement" shall have the meaning ascribed to such term
in Recital Paragraph A of the Second Amended Agreement.
"Original Note" shall have the meaning ascribed to such term in Recital
Paragraph A of the Second Amended Agreement.
"Scheduled Maximum Principal Amount" shall mean the maximum principal
amount which may be outstanding and unpaid as of any date of determination as
set forth on the schedule setting forth the dates and Scheduled Maximum
Principal Amount which may be outstanding and unpaid on the Note as of and
subsequent to the Second Amendment Effective Date, a copy of which schedule of
Scheduled Maximum Principal Amount is marked "Exhibit A", affixed to the Second
Amended Agreement and by this reference incorporated herein and made a part
hereof, which schedule of Scheduled Maximum Principal Amount shall, as of the
Second Amendment Effective Date, fully restate and supersede the schedule of
Scheduled Maximum Principal Amount attached as Exhibit A to the Original Note.
"Second Amended Agreement" shall mean the Second Amendment to Loan
Agreement and Term and Revolving Credit Promissory Note dated as of October 15,
1996, executed by and among Borrower, Sands Regent and Banks.
"Second Amendment Effective Date" shall mean September 30, 1996,
subject to the satisfaction of each of the Conditions Precedent set forth in
Paragraph 9 of the Second Amended Agreement.
"Second Amendment Execution Date" shall mean the date as of which the
Second Amended Agreement has been executed by Borrower, Sands Regent and each of
the Banks.
2. Compliance Waiver and Amendment of Fixed Charge Coverage Ratio.
Effective as of June 30, 1996, Borrower's compliance with the Fixed Charge
Coverage Ratio as set forth in Section 5.14(b) of the Original Loan Agreement,
as restated by Section 5.14(c) of the First Amendment to Loan Agreement, is
hereby waived for the Fiscal Quarter ended June 30, 1996. Furthermore, as of the
Second Amendment Effective Date, Section 5.14(b) of the Original Loan Agreement,
as restated by Section 5.14(c) of the First Amendment to Loan Agreement, shall
be and is hereby fully amended and restated in its entirety as follows:
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"Section 5.14(c). Commencing as of the Second Amendment Effective Date,
Borrower shall maintain a minimum Fixed Charge Coverage Ratio as of the end of
each Fiscal Quarter, calculated on a cumulative basis with respect to each such
Fiscal Quarter and the most recently ended three (3) preceding Fiscal Quarters
on a rolling four (4) Fiscal Quarter basis, in accordance with the following
schedule:
FIXED CHARGE
FISCAL QUARTER END COVERAGE RATIO
===============================================================================
As of the Fiscal Quarters
ending on September 30, 1996
and December 31, 1996 0.65 to 1.00
As of the Fiscal Quarter
ending on March 31, 1997 0.75 to 1.00
As of the Fiscal Quarter
ending on June 30, 1997 1.00 to 1.00
As of the Fiscal Quarter
ending on September 30, 1997
and as of the end of each
Fiscal Quarter through the
Maturity Date 1.50 to 1.00"
3. Compliance Waiver of Adjusted Fixed Charged Coverage Ratio.
Effective as of June 30, 1996, Banks hereby waive compliance with the provisions
of the Adjusted Fixed Charge Coverage Ratio set forth in Section 5.14(d) of the
First Amendment to Loan Agreement for the Fiscal Quarter ending on June 30, 1996
through the Fiscal Quarter ending June 30, 1997. Borrower acknowledges and
agrees that Banks are entitled to require strict compliance with Section 5.14(d)
as set forth in the First Amendment to Loan Agreement as of the Fiscal Quarter
ending September 30, 1997 as well as each Fiscal Quarter thereafter occurring
through the Maturity Date.
4. Waiver and Amendment of Maximum Capital Expenditure Requirement.
Effective as of June 30,1996, the limitation imposed on Capital Expenditures as
set forth in Section 5.14(a) of the Original Loan Agreement, as restated by
Section 5.14(a) of the First Amendment to Loan Agreement, shall be and is hereby
waived for the Fiscal Year ended June 30, 1996. Furthermore, Section 5.14(a) as
set forth in the Original Loan Agreement, as restated by Section 5.14(a) of the
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First Amendment to Loan Agreement, shall be and is hereby further amended and
restated in its entirety as follows:
"Section 5.14(a). Notwithstanding the provisions contained in
Section 5.03, the Borrower shall not, without the prior written consent
of Lenders, make Capital Expenditures or acquire additional fixed
assets or equipment or enter into capital leases in an aggregate amount
during any applicable Fiscal Year, which exceeds: (i) Three Million
Four Hundred Thousand Dollars ($3,400,000.00) for the Fiscal Year
ending June 30, 1997, or (ii) five percent (5%) of its gross revenues
for its then most recently completed prior Fiscal Year for each Fiscal
Year ending on and after June 30, 1998 through the Maturity Date."
5. Restatement of Dividend Restriction and Substitution of Distribution
Prohibition. Section 5.14(e) of the Original Loan Agreement, as restated by
Section 5.14(g) of the First Amendment to Loan Agreement, shall be and is hereby
amended, restated and superseded in its entirety as follows for the period
commencing on the Second Amendment Effective Date through June 30, 1997:
"Section 5.14(g). Borrower shall not make or advance
Distributions of any kind or character whatsoever to Sands Regent
without the prior written consent of Lenders."
Subsequent to June 30, 1997, Section 5.14(g) shall read and provide as
set forth in the First Amendment to Loan Agreement.
6. Modification of Scheduled Maximum Principal Amounts. As of the
Second Amendment Effective Date, the Scheduled Maximum Principal Amount schedule
attached as Exhibit A to the Original Note shall be restated and superseded in
its entirety by the Scheduled Maximum Principal Amount schedule marked "Exhibit
A", affixed to the Second Amended Agreement and by this reference incorporated
herein and made a part hereof.
7. Consent of and Guaranty Affirmation by Sands Regent. Sands Regent
joins in execution of this Second
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Amended Agreement for the purpose of: (i) evidencing its consent and agreement
to the terms and conditions set forth herein, (ii) acknowledging that all
references in the Sands Regent Guaranty to the "Loan Agreement" and "Note" shall
include the Existing Loan Agreement and Original Note as amended hereby and
(iii) ratifying, confirming and reaffirming the Sands Regent Guaranty in all
respects as being fully applicable to and unconditionally guaranteeing the
prompt and full payment and performance of the Loan Agreement and the Note.
8. Amendment Fee. On or before the Second Amendment Effective Date,
Borrower shall pay to Agent Bank for the benefit of Lenders a non-refundable fee
(the "Second Amendment Fee") in the amount of Fifty-Four Thousand Eight Hundred
Seventy-Five Dollars ($54,875.00) to be promptly distributed by Agent Bank to
Lenders in proportion to their respective Participation Interests in the Loan.
9. Conditions Precedent to Second Amendment Effective Date. The
occurrence of the Second Amendment Effective Date is subject to Agent Bank
having received the following documents, in each case in a form and substance
reasonably satisfactory to Lenders:
a. Execution and delivery by each of the Borrower, Sands Regent and
Banks of four (4) counterpart originals of the Second Amended Agreement.
b. Delivery to Agent Bank of a copy of a corporate resolution for
each of the Borrower and Sands Regent authorizing the execution and delivery of
this Second Amended Agreement and each document, agreement and instrument to be
executed and delivered by Borrower and/or Sands Regent in connection herewith.
c. Payment by Borrower and receipt by Agent Bank of the Second
Amendment Fee on or before the Second Amendment Execution Date;
d. Payment by Borrower and receipt by Agent Bank of a principal
reduction payment in the amount of Four Million Five Hundred Seventy-Eight
Thousand Dollars ($4,578,000.00) or such other amount as may be necessary to
reduce the outstanding unpaid principal of the Loan to be no greater than Ten
Million Nine Hundred Seventy-Five Thousand Dollars ($10,975,000.00) as of the
Second Amendment Execution Date.
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e. Reimbursement to Agent Bank by Borrower for all reasonable fees
and out-of-pocket expenses incurred by Agent Bank in connection with the Second
Amended Loan Agreement, including, but not limited to, reasonable attorneys'
fees of Xxxxxxxxx & Xxxxxx, and all other like expenses remaining unpaid as of
the Second Amendment Execution Date; and
f. Such other documents, instruments or conditions as may reasonably
be required by Lenders.
10. Representations and Warranties. To induce Banks to enter into this
Second Amended Agreement, Borrower hereby: (i) ratifies and reaffirms the
representations and warranties set forth in Article IV of the Existing Loan
Agreement; (ii) warrants and represents that each such representation and
warranty shall be true and correct as of the Second Amendment Execution Date,
other than representations and warranties which expressly speak as of a
different date which shall be true and correct as of such date; and (iii)
represents and warrants that, as of the Second Amendment Execution Date, after
giving effect to the waivers and amendments set forth in the Second Amended
Agreement, no Event of Default or event with which the giving of notice or
passage of time would constitute an Event of Default has occurred and remains
continuing.
11. No Other Changes. That all of the other terms and provisions of the
Existing Loan Agreement and Original Note shall remain unchanged and in full
force and effect except as specifically modified herein.
12. Entire Agreement. The Existing Loan Agreement and Original Note as
modified by this Second Amended Agreement together with the other Loan Documents
constitute the entire agreement between the parties and supersedes all prior
agreements whether written or oral with respect to the subject matter hereof,
including, but not limited to, any term sheets furnished by Banks to Borrower
and/or Sands Regent and any negotiations, discussions or commitments for the
lending or advance of any funds or monies other than as specifically set forth
in the Existing Loan Agreement and Original Note, as amended by the Second
Amended Agreement. Neither the Existing Loan Agreement or the Original Note, as
modified hereby, nor any provision therein, or herein, may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
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13. Counterpart. This Second Amended Agreement 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 but one and the same document.
14. Additional/Replacement Exhibits Attached. The following replacement
Schedules and Exhibits are attached hereto and incorporated herein and made a
part of the Loan Agreement as follows:
Exhibit A - Scheduled Maximum Principal
Amount schedule
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IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Second Amended Agreement as of the day and year first above written.
LENDERS: BORROWER:
XXXXX FARGO BANK, National Association, ZANTE, INC.,
successor by merger to FIRST INTERSTATE a Nevada corporation
BANK OF NEVADA, National Association,
Agent Bank and Lender By /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx,
Treasurer
By /s/ XXX XXXXXXXX
--------------------------
Xxx Xxxxxxxx, SANDS REGENT,
Vice President a Nevada corporation
THE SUMITOMO BANK, LIMITED,
Lender By /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx,
Treasurer
By /s/ XXXXX X. XXXXXXXX
-------------------------
Name Xxxxx X. Xxxxxxxx
-----------------------
Title Vice President &
Manager
----------------------
By /s/ XXXXXXXX X. XXXXXXXX
-------------------------
Name Xxxxxxxx X. Xxxxxxxx
-----------------------
Title Vice President
----------------------
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SCHEDULED MAXIMUM PRINCIPAL AMOUNT
----------------------------------
=============================================================================
SCHEDULED
MAXIMUM
AMOUNT OF PRINCIPAL
DATE OF DETERMINATION REDUCTION AMOUNT
=============================================================================
04-01-96 to Second Amendment -0- $15,553,000
Effective Date
-----------------------------------------------------------------------------
Second Amendment Effective $4,578,000 $10,975,000
Date to 09-30-97
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10-01-97 xx 00-00-00 $1,793,000 $ 9,182,0000
-----------------------------------------------------------------------------
04-01-98 xx 00-00-00 $1,884,000 $ 7,298,000
-----------------------------------------------------------------------------
10-01-98 xx 00-00-00 $1,980,000 $ 5,318,000
-----------------------------------------------------------------------------
04-10-99 xx 00-00-00 $2,081,000 $ 3,237,000
-----------------------------------------------------------------------------
10-01-99 to date immediately $2,188,000 $ 1,049,000
preceding Maturity Date
-----------------------------------------------------------------------------
Maturity Date $1,049,000 -0-
(All
outstanding
sums fully
due)
=============================================================================
EXHIBIT "A"
TO SECOND AMENDED AGREEMENT AND TO
TERM AND REVOLVING CREDIT PROMISSORY NOTE
