FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.174
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") is made and entered
into
as of the 28th day of June, 2006, by and among CC TOLLGATE LLC, a Delaware
limited liability company (hereinafter sometimes referred to as "Tollgate"
and
at other times hereinafter referred to as the "Borrower"), XXXXX FARGO BANK,
National Association, XXXXXXXX BANKFIRST CORP., a Minnesota corporation, and
ORIX COMMERCIAL FINANCE, LLC, a Delaware limited liability company, formerly
known as ORIX Financial Services, Inc., a New York corporation (each
individually a "Lender" and collectively the "Lenders"), XXXXX FARGO BANK,
National Association, as the issuer of letters of credit (in such capacity,
together with its successors and assigns, the "L/C Issuer") 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 and L/C Issuer collectively referred to as the
"Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrower
and Banks entered into a Credit Agreement dated as of November 18, 2005
(the "Existing Credit Agreement").
B. For
the
purpose of this First 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. Borrower
and Century Casinos, Inc., a Delaware corporation ("CCI") desire to amend the
Existing Credit Agreement for the following purposes: (i) deleting the Interest
Rate Protection Provisions set forth in Section 5.23, (ii) on the Term
Out Date, reducing the Agreed Rate by two percent (2.0%) per annum, and, in
consideration of the foregoing, (iii) providing for CCI's full guaranty of
the prompt payment and performance of the Bank Facilities and each of the Loan
Documents, and (iv) providing for Borrower's agreement that in the event
Bank Facilities Termination occurs prior to the first annual anniversary of
the
Term Out Date, Borrower shall pay Lenders a fee ("Exit Fee") in the amount
of
one percent (1.0%) of the sum of the Aggregate RLC Commitment plus the then
outstanding balance of principal owing under the C/T Loan after giving effect
only to the Scheduled Term Amortization Payments and Excess Cash Flow Payments
due and payable prior to such date.
X. Xxxxx
have agreed to amend the Existing Credit Agreement as set forth in the preceding
recital paragraph subject to the terms, conditions and provisions set forth
in
this First Amendment.
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 First 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:
"Agreed
Rate" shall mean (a) at all times prior to the Term Out Date, the greater of
(i) eight and one-half percent (8.5%) per annum, and (ii) the Prime
Rate plus four percent (4.0%) per annum, and (b) on and after the Term Out
Date, the greater of (i) six and one-half percent (6.5%) per annum, and
(ii) the Prime Rate plus two percent (2.0%) per annum.
"Continuing
Guaranty" shall mean the General Continuing Guaranty Agreement to be executed
by
the Guarantor in favor of Lender on or before the First Amendment Effective
Date, a copy of the form of which is marked "Exhibit Q", affixed to the
First Amendment and by this reference incorporated herein and made a part
hereof, as the same may be amended, modified, supplemented, replaced, renewed
or
restated from time to time.
"Credit
Agreement" shall mean the Existing Credit Agreement as amended by the First
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.
"Existing
Credit Agreement" shall have the meaning set forth in Recital Paragraph A
of the First Amendment.
"Exit
Fee" shall have the meaning ascribed to such term in Recital Paragraph C of
the First Amendment.
"First
Amendment" shall mean this First Amendment.
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"First
Amendment Effective Date" shall mean the date upon which each of the conditions
precedent set forth in Paragraph 7 of the First Amendment have been fully
satisfied.
"Guarantor"
shall mean CCI.
2. Modification
of Agreed Rate.
As of
the First Amendment Effective Date, the definition of "Agreed Rate" shall be
and
is hereby modified as set forth in the definition of Agreed Rate contained
in
the First Amendment.
3. Addition
of Continuing Guaranty.
As of
the First Amendment Effective Date, Section 2.17 entitled "Continuing Guaranty
Agreement" shall be and is hereby added to the Credit Agreement as
follows:
"Section
2.17. Continuing
Guaranty Agreement.
As
additional security for the due and punctual payment and performance of the
Revolving Credit Note, the C/T Note, all other obligations which may be owing
at
any time and from time to time by Borrower to Banks, and each of the terms,
covenants, representations, warranties and provisions herein continued and
contained in any of the Loan Documents, on or before the First Amendment
Effective Date, the Guarantor shall execute the Continuing Guaranty, a copy
of
which is marked "Exhibit Q", affixed to the First Amendment and by this
reference incorporated herein and made a part hereof."
4. Deletion
of Interest Rate Protection.
As of
the First Amendment Effective Date, Section 5.23 of the Existing Credit
Agreement entitled "Interest Rate Protection" shall be and is hereby deleted
in
its entirety and of no further force or effect.
5. Amendment
of Subsection 7.01(t) and Addition of Subsection (u).
As of
the First Amendment Effective Date, Subsection 7.01(t) of the Existing
Credit Agreement shall be and is hereby amended and subsection (u) is
hereby added as follows:
"t. The
occurrence of any default under the Completion Guaranty or the revocation,
termination or repudiation of the Completion Guaranty prior to the full payment
of all costs and expenses of completing construction and development of the
Construction Projects and the occurrence of the Completion Date;
or
u. The
occurrence of any default under the Continuing Guaranty or the revocation,
termination or repudiation of any of Guarantor's promises, obligations or
covenants under the Continuing Guaranty."
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6. Exit
Fee.
As a
further consideration for this First Amendment, in the event Bank Facilities
Termination occurs prior to the first annual anniversary of the Term Out Date,
Borrower agrees to pay the Exit Fee to Lenders, in proportion to their
respective Pro Rata Shares in the Bank Facilities, in the amount of one percent
(1.0%) of the sum of the Aggregate RLC Commitment, plus the then outstanding
balance of principal owing under the C/T Loan after giving effect only to the
Scheduled Term Amortization Payments and Excess Cash Flow Payments which became
due and payable on or prior to the date of Bank Facilities
Termination.
7. Conditions
Precedent to First Amendment Effective Date.
The
occurrence of the First Amendment Effective Date is subject to Lender 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 June 29,
2006:
a. due
execution by Borrower and Banks of four (4) duplicate originals of this First
Amendment;
b. delivery
to Agent Bank of the original Continuing Guaranty duly executed by the
Guarantor, together with a duly executed corporate resolution authorizing the
execution and delivery of the Continuing Guaranty;
c. reimbursement
to Agent Bank by Borrower for all reasonable fees and out-of-pocket expenses
incurred by Agent Bank in connection with the First Amendment, including, but
not limited to, reasonable attorneys' fees of Xxxxxxxxx & Xxxxxx, LLC and
all other like expenses remaining unpaid as of the First Amendment Effective
Date; and
d. such
other documents, instruments or conditions as may be reasonably required by
Lenders.
8. Representations
of Borrower.
Borrower hereby represents 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 First Amendment Effective Date in all
material respects as though such representations and warranties had been made
on
and as of the First 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 Lender;
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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 has occurred;
c. after
giving effect to the First Amendment, 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 First Amendment has been duly
authorized by all necessary action of Borrower and this First Amendment
constitutes a valid, binding and enforceable obligation of
Borrower.
9. Incorporation
by Reference.
This
First Amendment shall be and is hereby incorporated in and forms a part of
the
Existing Credit Agreement.
10. Governing
Law.
This
First Amendment shall be governed by the internal laws of the State of Nevada
without reference to conflicts of laws principles.
11. Counterparts.
This
First 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.
12. Continuance
of Terms and Provisions.
All of
the terms and provisions of the Existing Credit Agreement shall remain unchanged
except as specifically modified herein.
13. Additional
Exhibit Attached.
The
following additional Exhibit is attached hereto and incorporated herein and
made
a part of the Credit Agreement as follows:
Exhibit
Q
- Continuing
Guaranty - Form
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IN
WITNESS WHEREOF, Borrower and Agent Bank (acting on behalf of the Lenders
pursuant to Section 11.11 of the Credit Agreement) have executed this First
Amendment as of the day and year first above written.
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BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE,
INC.,
a Delaware corporation,
its
Managing Member
By _/s/ Xxxxx Hannappel___
Xxxxx
Xxxxxxxxx,
CEO
and
Secretary
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AGENT
BANK:
XXXXX
FARGO BANK,
National
Association,
Agent
Bank, on behalf of the
Lenders
and L/C Issuer
By
/s/ Xxxx Xxxx
Xxxx
Xxxx,
Vice
President
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Exhibit
Q
GENERAL
CONTINUING GUARANTY
THIS
GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of June 28th, 2006, is
executed and delivered by CENTURY CASINOS, INC., a Delaware corporation
(referred to as a "Guarantor"), in favor of the Beneficiaries, referred to
below, and in light of the following:
R_E_C_I_T_A_L_S:
WHEREAS:
A. Reference
is made to that certain Credit Agreement, dated as of November 18, 2005
(the "Existing Credit Agreement") as amended by First Amendment to Credit
Agreement dated concurrently herewith (the "First Amendment" and, together
with
the Existing Credit Agreement, collectively, as may be further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among CC Tollgate LLC, a Delaware limited liability company (the
"Borrower"), the Lenders therein named (each, together with their respective
successors and assigns, individually being referred to as a "Lender" and
collectively as the "Lenders"),
Xxxxx
Fargo Bank, National Association, as the issuer of letters of credit thereunder
(herein in such capacity, together with its successors and assigns, the "L/C
Issuer") 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 and L/C Issuer,
collectively referred to as the "Banks").
B. For
the
purpose of this Guaranty, all capitalized terms not otherwise specifically
defined herein shall have the same meaning given them in Section 1.01 of
the Credit Agreement as though fully restated verbatim.
C. In
order
to induce Beneficiaries to enter into the First Amendment and to continue
to
advance Borrowings, loans, advances and extend financial accommodations to
Borrower pursuant to the Credit Agreement, and in consideration thereof,
and in
consideration of any Borrowings, loans, advances, or other financial
accommodations heretofore or hereafter extended by Beneficiaries to Borrower,
whether pursuant to the Credit Agreement or otherwise, Guarantor has agreed
to
guaranty the Guarantied Obligations.
NOW,
THEREFORE, in consideration of the foregoing, Guarantor hereby agrees, in
favor
of Beneficiaries, as follows:
1. Definitions
and Construction.
a. Definitions.
The
following terms, as used in this Guaranty, shall have the following
meanings:
"Agent
Bank"
shall
mean Xxxxx Fargo Bank, National Association, as the administrative and
collateral agent for each of the Lenders under the Credit
Agreement.
"Beneficiaries"
shall
mean a collective reference to Agent Bank and Banks.
"Borrower"
shall
mean CC Tollgate LLC, a Delaware limited liability company.
"Credit
Agreement"
shall
have the meaning set forth by Recital A of this Guaranty.
"Guarantied
Obligations"
shall
mean: (a) the due and punctual payment of the principal of, and interest
(including post petition interest and including any and all interest which,
but
for the application of the provisions of the Bankruptcy Code, would have
accrued
on such amounts) on, and premium, if any, on the C/T Note and/or the Revolving
Credit Note; and (b) the due and punctual payment of all present or future
Indebtedness owing by Borrower.
"Guarantor"
shall
have the meaning set forth in the preamble to this Guaranty.
"Guaranty"
shall
have the meaning set forth in the preamble to this document.
"Indebtedness"
shall
mean any and all obligations, indebtedness, or liabilities of any kind or
character owed to Beneficiaries, or any of them, and arising directly or
indirectly out of or in connection with the Credit Agreement, the C/T Note,
the
Revolving Credit Note, L/C Exposure, the Environmental Certificate, or any
of
the other Loan Documents, including all such obligations, indebtedness, or
liabilities, whether for principal, interest (including post petition interest
and including any and all interest which, but for the application of the
provisions of the Bankruptcy Code, would have accrued on such amounts), premium,
reimbursement obligations, fees, costs, expenses (including attorneys' fees),
or
indemnity obligations, whether heretofore, now, or hereafter made, incurred,
or
created, whether voluntarily or involuntarily made, incurred, or created,
whether secured or unsecured (and if secured, regardless of the nature or
extent
of the security), whether absolute or contingent, liquidated or unliquidated,
or
determined or indeterminate, whether Borrower is liable individually or jointly
with others, and whether recovery is or hereafter becomes barred by any statute
of limitations or otherwise becomes unenforceable for any reason whatsoever,
including any act or failure to act by Beneficiaries.
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"Lenders"
shall
have the meaning set forth by Recital A of this Guaranty.
b. Construction.
Unless
the context of this Guaranty clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural,
the
part includes the whole, the term "including" is not limiting, and the term
"or"
has the inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this
Guaranty as a whole and not to any particular provision of this Guaranty.
Any
reference in this Guaranty to any of the following documents includes any
and
all alterations, amendments, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Loan Documents; the Credit Agreement;
this Guaranty; the Environmental Certificate; the C/T Note; and the Revolving
Credit Note.
2. Guarantied
Obligations.
Guarantor hereby irrevocably and unconditionally guaranty to Beneficiaries,
as
and for its own debt, until final and indefeasible payment in full thereof
has
been made in cash or immediately available funds, (a) the due and punctual
payment of the Guarantied Obligations, in each case when the same shall become
due and payable, whether at maturity, pursuant to a mandatory payment
requirement, by acceleration, or otherwise; it being the intent of Guarantor
that the guaranty set forth herein shall be a guaranty of payment and not
a
guaranty of collection; and (b) the punctual and faithful performance, keeping,
observance, and fulfillment by Borrower of all of the agreements, conditions,
covenants, and obligations of Borrower contained in the Credit Agreement,
the
C/T Note, the Revolving Credit Note, the Environmental Certificate and under
each of the other Loan Documents.
3. Continuing
Guaranty.
This
Guaranty includes Guarantied Obligations arising under successive transactions
continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment
terms,
or other terms and conditions thereof, or creating new or additional Guarantied
Obligations after prior Guarantied Obligations have been satisfied in whole
or
in part. To the maximum extent permitted by law, Guarantor hereby waives
any
right to revoke this Guaranty as to future Indebtedness. If such a revocation
is
effective notwithstanding the foregoing waiver, Guarantor acknowledges and
agrees that (a) no such revocation shall be effective until written notice
thereof has been received and acknowledged by Beneficiaries, (b) no such
revocation shall apply to any Guarantied Obligations in existence on such
date
(including any subsequent continuation, extension, or renewal thereof, or
change
in the interest rate, payment terms, or other terms and conditions thereof
to
the extent permitted by law), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made
or
created pursuant to a legally binding commitment of Beneficiaries in existence
on the date of such revocation, (d) no payment by Guarantor, Borrower, or
from
any other source, prior to the date of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrower or from
any
source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guarantied Obligations as to which
the
revocation is effective and which is not, therefore, guarantied
hereunder.
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4. Performance
under this Guaranty.
In the
event that Borrower fails to make any payment of any Guarantied Obligations
on
or before the due date thereof, or if Borrower shall fail to perform, keep,
observe, or fulfill any other obligations referred to in clause (b) of Section
2
hereof in the manner provided in the Credit Agreement, the C/T Note, the
Revolving Credit Note or the other Loan Documents, as applicable, Guarantor
shall cause such payment to be made or each of such obligations to be performed,
kept, observed, or fulfilled within five (5) Banking Business Days of
Guarantor's receipt of written notice of such failure.
5. Primary
Obligations.
This
Guaranty is a primary and original obligation of Guarantor, is not merely
the
creation of a surety relationship, and is an absolute, unconditional, and
continuing guaranty of payment and performance which shall remain in full
force
and effect without respect to future changes in conditions, including any
change
of law or any invalidity or irregularity with respect to the issuance of
the
Notes. Guarantor agrees that it is directly, jointly and severally with any
other guarantor of the Guarantied Obligations, liable to Beneficiaries, that
the
obligations of Guarantor hereunder are independent of the obligations of
Borrower or any other guarantor, and that a separate action may be brought
against Guarantor, whether such action is brought against Borrower or any
other
guarantor whether Borrower or any such other guarantor is joined in such
action.
Guarantor agrees that its liability hereunder shall be immediate and shall
not
be contingent upon the exercise or enforcement by Beneficiaries of whatever
remedies they may have against Borrower or any other guarantor, or the
enforcement of any lien or realization upon any security Beneficiaries may
at
any time possess. Guarantor agrees that any release which may be given by
Beneficiaries to Borrower or any other guarantor shall not release Guarantor.
Guarantor consents and agrees that Beneficiaries shall be under no obligation
to
marshal any property or assets of Borrower or any other guarantor in favor
of
Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6. Waivers.
a. Except
as
otherwise expressly set forth herein, Guarantor hereby waives: (i) notice
of
acceptance hereof; (ii) notice of any Construction Disbursements, Borrowings,
advances, loans or other financial accommodations made or extended under
the
Credit Agreement, or the creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations, subject, however,
to
Guarantor's right to make inquiry of Agent Bank to ascertain the amount of
the
Guarantied Obligations at any reasonable time; (iv) notice of any adverse
change
in the financial condition of Borrower or of any other fact that might increase
Guarantor's risk hereunder; (v) notice of presentment for payment, demand,
protest, and notice thereof as to the C/T Note, the Revolving Credit Note
or any
other instrument; (vi) notice of any Default or Event of Default under the
Credit Agreement; and (vii) all other notices (except if such notice is
specifically required to be given to Guarantor under this Guaranty or any
other
Loan Document to which Guarantor is party) and demands to which Guarantor
might
otherwise be entitled.
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b. To
the
fullest extent permitted by applicable law, Guarantor waives the right by
statute or otherwise to require Beneficiaries to institute suit against Borrower
or to exhaust any rights and remedies which Beneficiaries have or may have
against Borrower. In this regard, Guarantor agrees that it is bound to the
payment of each and all Guarantied Obligations, whether now existing or
hereafter accruing, as fully as if such Guarantied Obligations were directly
owing to Beneficiaries by Guarantor. Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense
that the Guarantied Obligations shall have been fully and finally performed
and
indefeasibly paid) of Borrower or by reason of the cessation from any cause
whatsoever of the liability of Borrower in respect thereof.
c. To
the
maximum extent permitted by law, Guarantor hereby waives: (i) any rights
to
assert against Beneficiaries any defense (legal or equitable), set-off,
counterclaim, or claim which Guarantor may now or at any time hereafter have
against Borrower or any other party liable to Beneficiaries; (ii) any defense,
set-off, counterclaim, or claim, of any kind or nature, arising directly
or
indirectly from the present or future lack of perfection, sufficiency, validity,
or enforceability of the Guarantied Obligations or any security therefor;
(iii)
any defense arising by reason of any claim or defense based upon an election
of
remedies by Beneficiaries; (iv) the benefit of any statute of limitations
affecting Guarantor's liability hereunder or the enforcement thereof, and
any
act which shall defer or delay the operation of any statute of limitations
applicable to the Guarantied Obligations shall similarly operate to defer
or
delay the operation of such statute of limitations applicable to Guarantor's
liability hereunder; and (v) any defense or benefit that may be derived from
or
afforded by law which limits the liability of or exonerates guaranties or
sureties including, without limitation, the benefits of Nevada Revised Statutes
§§40.430 - 40.459, 40.475 and 40.485 as permitted by Nevada Revised
Statutes §40.495.
d. Guarantor
agrees that if all or a portion of the Indebtedness or this Guaranty is at
any
time secured by a deed of trust or mortgage covering interests in real property,
Beneficiaries, in their sole discretion, without notice or demand and without
affecting the liability of Guarantor under this Guaranty, may foreclose
(pursuant to the terms of the Credit Agreement or otherwise) the deed of
trust
or mortgage and the interests in real property secured thereby by non-judicial
sale. Guarantor understands that the exercise of Beneficiaries of certain
rights
and remedies contained in the Credit Agreement and any such deed of trust
or
mortgage may affect or eliminate Guarantor's right of subrogation against
Borrower and that Guarantor may therefore incur a partially or totally
non-reimbursable liability hereunder. Nevertheless, Guarantor hereby authorizes
and empowers Beneficiaries to exercise, in their sole discretion, any rights
and
remedies, or any combination thereof, which may then be available, since
it is
the intent and purpose of Guarantor that the obligations hereunder shall
be
absolute, independent and unconditional under any and all circumstances.
Notwithstanding any foreclosure of the lien of any deed of trust or security
agreement with respect to any or all of any real or personal property secured
thereby, whether by the exercise of the power of sale contained therein,
by an
action for judicial foreclosure or by an acceptance of a deed in lieu of
foreclosure, Guarantor shall remain bound under this Guaranty including its
obligation to pay any deficiency following a non-judicial
foreclosure.
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e. Guarantor
also hereby waives any claim, right or remedy which Guarantor may now have
or
hereafter acquire against the Borrower that arises hereunder and/or from
the
performance by Guarantor hereunder including, without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Beneficiaries
against the Borrower or any security which Beneficiaries now have or hereafter
acquire, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise.
7. Releases.
Guarantor consents and agrees that, without notice to or by Guarantor and
without affecting or impairing the obligations of Guarantor hereunder,
Beneficiaries may, by action or inaction, compromise or settle, extend the
period of duration or the time for the payment, or discharge the performance
of,
or may refuse to, or otherwise not enforce, or may, by action or inaction,
release all or any one or more parties to, any one or more of the Credit
Agreement, the Notes, or any of the other Loan Documents or may grant other
indulgences to Borrower in respect thereof, or may amend or modify in any
manner
and at any time (or from time to time) any one or more of the Credit Agreement,
the Notes, or any of the other Loan Documents, or may, by action or inaction,
release or substitute any other guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guarantied Obligations (including the Collateral) or
any
other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No
Election.
Beneficiaries shall have the right to seek recourse against Guarantor to
the
fullest extent provided for herein and no election by Beneficiaries to proceed
in one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Beneficiaries' right to proceed in any other
form
of action or proceeding or against other parties unless Beneficiaries have
expressly waived such right in writing. Specifically, but without limiting
the
generality of the foregoing, no action or proceeding by Beneficiaries under
any
document or instrument evidencing the Guarantied Obligations shall serve
to
diminish the liability of Guarantor under this Guaranty except to the extent
that Beneficiaries finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
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9. Indefeasible
Payment.
The
Guarantied Obligations shall not be considered indefeasibly paid for purposes
of
this Guaranty unless and until all payments to Beneficiaries are no longer
subject to any right on the part of any person whomsoever, including Borrower,
Borrower as a debtor in possession, or any trustee (whether appointed under
the
Bankruptcy Code or otherwise) of Borrower's assets to invalidate or set aside
such payments or to seek to recoup the amount of such payments or any portion
thereof, or to declare same to be fraudulent or preferential. In the event
that,
for any reason, all or any portion of such payments to Beneficiaries is set
aside or restored, whether voluntarily or involuntarily, after the making
thereof, the obligation or part thereof intended to be satisfied thereby
shall
be revived and continued in full force and effect as if said payment or payments
had not been made and Guarantor shall be liable for the full amount
Beneficiaries are required to repay plus any and all costs and expenses
(including attorneys' fees) paid by Beneficiaries in connection
therewith.
10. Financial
Condition of Borrower and Guarantor.
a. Guarantor
represents and warrants to Beneficiaries that it is currently informed of
the
financial condition of Borrower and of all other circumstances which a diligent
inquiry would reveal and which bear upon the risk of nonpayment of the
Guarantied Obligations. Guarantor further represents and warrant to
Beneficiaries that it has read and understands the terms and conditions of
the
Credit Agreement, the Notes and the other Loan Documents. Guarantor hereby
covenants that it will continue to keep itself informed of Borrower's financial
condition, the financial condition of other guarantors, if any, and of all
other
circumstances which bear upon the risk of nonpayment or nonperformance of
the
Guarantied Obligations.
b. At
all
times until the occurrence of Bank Facilities Termination, Guarantor shall
deliver to Agent Bank and each of the Lenders:
(i) Promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication that shall have been sent to the
stockholders of Guarantor. Lenders can obtain copies of all annual, regular,
periodic and special reports (including, without limitation, each 10Q and
10K
report) and registration statements which Guarantor shall have filed or be
required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, by
accessing the XXXXX System of the Securities and Exchange Commission;
and
(ii) Promptly,
and in any event within ten (10) days of the filing thereof, a copy of any
substantive filing, report or other document filed by Borrower or Guarantor
with
the Gaming Authorities. Promptly after the same are available, copies of
any
written communication to Borrower or Guarantor from the Gaming Authorities
advising them, or either of them, of a material violation of or non-compliance
with, any Gaming Law by Borrower or Guarantor.
7
11. Subordination.
Any
indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the indebtedness of Borrower to Beneficiaries; and from and
after the occurrence of a Default or an Event of Default under the Credit
Agreement and for so long as such a Default or Event of Default shall continue
such indebtedness of Borrower to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Borrower and paid over to Beneficiaries
on
account of the indebtedness of Borrower to Beneficiaries but without reducing
or
affecting in any manner the liability of Guarantor under the other provisions
of
this Guaranty.
12. Payments;
Application.
All
payments to be made hereunder by Guarantor shall be made in lawful money
of the
United States of America at the time of payment, shall be made in immediately
available funds, and shall be made without deduction (whether for taxes or
otherwise) or offset. All payments made by Guarantor hereunder shall be applied
as follows: first, to all reasonable costs and expenses (including attorneys'
fees) incurred by Beneficiaries in enforcing this Guaranty or in collecting
the
Guarantied Obligations; second, to all accrued and unpaid interest, premium,
if
any, and fees owing to Beneficiaries constituting Guarantied Obligations;
and
third, to the balance of the Guarantied Obligations.
13. Costs
and Expenses.
Guarantor agrees to pay Beneficiaries' reasonable out-of-pocket costs and
expenses, including, but not limited to, legal fees and disbursements, incurred
in any effort (which shall include those incurred in investigations of and
advising on matters relating to the Beneficiaries' rights and remedies) to
collect or enforce any of sums owing under this Guaranty whether or not any
lawsuit is filed. Until paid to the Beneficiaries' such sums will bear interest
at the Default Rate set forth in the Credit Agreement.
14. Costs
to Prevailing Party.
If any
action or proceeding is brought by any party against any other party under
this
Guaranty, the prevailing party shall be entitled to recover such costs and
attorney's fees as the court in such action or proceeding may adjudge
reasonable.
15. Notices.
Unless
otherwise specifically provided herein, any notice or other communication
herein
required or permitted to be given shall be in writing and may be personally
served, sent by telefacsimile, telexed, or sent by courier service or United
States mail and shall be deemed to have been given when delivered in person
or
by courier service, upon receipt of a telefacsimile or telex or five (5)
Banking
Business Days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed). For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 15) shall be as set forth below, or, as to each
party, at such other address as may be designated by such party in a written
notice to all of the other parties:
8
If
to
Guarantor: Century
Casinos, Inc.
0000
Xxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxx, XX 00000
Attn:
Xxxxx Xxxxxxxxx, Xx.V.P.
With
a
copy to: Xxxx
Xxxxxx, Esq.
Faegre
& Xxxxxx LLP
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
If
to
Beneficiaries
c/o
Agent
Bank: Xxxxx
Fargo Bank, National Association
Commercial
Banking Division
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxx,
XX
00000
Attn:
Xxxx Xxxx, V.P.
With
a
copy to: Xxxxxxx
X. Xxxxxxxxx, Esq.
Xxxxxxxxx
& Xxxxxx, LLC
0000
Xxxxxxx Xxxx, Xxxxx X000
Xxxx,
XX
00000
16. Cumulative
Remedies.
No
remedy under this Guaranty, under the Credit Agreement, the C/T Note, the
Revolving Credit Note, or any Loan Document is intended to be exclusive of
any
other remedy, but each and every remedy shall be cumulative and in addition
to
any and every other remedy given under this Guaranty, under the Credit
Agreement, the C/T Note, the Revolving Credit Note, or any other Loan Document,
and those provided by law. No delay or omission by Beneficiaries to exercise
any
right under this Guaranty shall impair any such right nor be construed to
be a
waiver thereof. No failure on the part of Beneficiaries to exercise, and
no
delay in exercising, any right under this Guaranty shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under this
Guaranty preclude any other or further exercise thereof or the exercise of
any
other right.
17. Severability
of Provisions.
Any
provision of this Guaranty which is prohibited or unenforceable under applicable
law, shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof.
18. Entire
Agreement; Amendments.
This
Guaranty, together with the Credit Agreement, constitutes the entire agreement
between Guarantor and Beneficiaries pertaining to the subject matter contained
herein. This Guaranty may not be altered, amended, or modified, nor may any
provisions hereof be waived or noncompliance therewith consented to, except
by
means of a writing executed by Guarantor and Beneficiaries. Any such alteration,
amendment, modification, waiver, or consent shall be effective only to the
extent specified therein and for the specific purpose for which given. No
course
of dealing and no delay or waiver of any right or default under this Guaranty
shall be deemed a waiver of any other, similar or dissimilar, right or default
or otherwise prejudice the rights and remedies hereunder.
9
19. Successors
and Assigns.
This
Guaranty shall be binding upon Guarantor and its respective successors and
assigns and shall inure to the benefit of the successors and assigns of
Beneficiaries; provided,
however,
Guarantor shall not assign this Guaranty or delegate any of its duties hereunder
without Beneficiaries' prior written consent and any unconsented to assignment
shall be absolutely void. In the event of any assignment or other transfer
of
rights by Beneficiaries, the rights and benefits herein conferred upon
Beneficiaries shall automatically extend to and be vested in such assignee
or
other transferee.
20. Choice
of Law and Venue; Service of Process.
THE
VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT,
AND THE RIGHTS OF GUARANTOR AND BENEFICIARIES, SHALL BE DETERMINED UNDER,
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF
NEVADA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF
NEVADA, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, GUARANTOR ACCEPTS,
FOR
ITSELF AND IN CONNECTION WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY,
THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE
TO BE
BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY
FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
21. Arbitration.
a. Upon
the
request of any party, whether made before or after the institution of any
legal
proceeding, any action, dispute, claim or controversy of any kind (e.g.,
whether
in contract or in tort, statutory or common law, legal or equitable) ("Dispute")
now existing or hereafter arising between the parties in any way arising
out of,
pertaining to or in connection with the Credit Agreement, Loan Documents
or any
related agreements, documents, or instruments (collectively the "Documents"),
may, by summary proceedings (e.g., a plea in abatement or motion to stay
further
proceedings), bring an action in court to compel arbitration of any
Dispute.
b. All
Disputes between the parties shall be resolved by binding arbitration governed
by the Commercial Arbitration Rules of the American Arbitration Association.
Judgment upon the award rendered by the arbitrators may be entered in any
court
having jurisdiction.
10
c. No
provision of, nor the exercise of any rights under this arbitration clause
shall
limit the rights of any party, and the parties shall have the right during
any
Dispute, to seek, use and employ ancillary or preliminary remedies, judicial
or
otherwise, for the purposes of realizing upon, preserving, protecting or
foreclosing upon any property, real or personal, which is involved in a Dispute,
or which is subject to, or described in, the Documents, including, without
limitation, rights and remedies relating to: (i) foreclosing against any
real or personal property collateral or other security by the exercise of
a
power of sale under the Security Documentation or other security agreement
or
instrument, or applicable law, (ii) exercising self-help remedies (including
setoff rights) or (iii) obtaining provisional or ancillary remedies such
as
injunctive relief, sequestration, attachment, garnishment or the appointment
of
a receiver from a court having jurisdiction before, during or after the pendency
of any arbitration. The institution and maintenance of an action for judicial
relief or pursuit of provisional or ancillary remedies or exercise of self-help
remedies shall not constitute a waiver of the right of any party, including
the
plaintiff, to submit the Dispute to arbitration nor render inapplicable the
compulsory arbitration provision hereof.
22. Waiver
of Jury Trial.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR AND EACH OF THE BENEFICIARIES
EACH
MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE
OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS
GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND BENEFICIARIES WITH RESPECT TO THIS GUARANTY, OR
THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR AND EACH OF THE BENEFICIARIES
EACH MUTUALLY HEREBY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM,
DEMAND,
OR PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT
THE
DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT
OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING PARTY
TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
11
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Guaranty
as of
the day and year first written above.
|
CENTURY
CASINOS, INC.,
a
Delaware corporation
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
Senior
Vice President
|
