EXHIBIT 10.70
Second Amendment to the Credit Agreement dated as of March 31, 1997, between
Xxxxx Fargo Bank, N.A. ("Lender"); WMCK Venture Corp., Century Casinos Cripple
Creek, Inc., and WMCK Acquisition Corp. ("Borrowers"); and Century Casinos, Inc.
("Guarantor"), dated January 28, 1998.
SECOND AMENDMENT TO CREDIT AGREEMENT
------------------------------------
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Second Amendment") is
made and entered into as of the 28th day of January, 1998, by and among WMCK
VENTURE CORP., a Delaware corporation, CENTURY CASINOS CRIPPLE CREEK, INC., a
Colorado corporation and WMCK ACQUISITION CORP., a Delaware corporation
(collectively the "Borrowers"), CENTURY CASINOS, INC., a Delaware corporation
(the "Guarantor") and XXXXX FARGO BANK, National Association, as Lender and as
the administrative and collateral agent for the Lenders (herein in such capacity
called the "Agent Bank" and, together with the Lender, collectively referred to
as the "Banks").
R E C I T A L S:
----------------
WHEREAS:
A. Borrowers, Guarantor, Agent Bank and Lender entered into a Credit
Agreement dated as of March 31, 1997 (the "Original Credit Agreement") as
amended by First Amendment to Credit Agreement dated as of November 11, 1997
(the "First Amendment" and together with the Original Credit Agreement,
collectively the "Existing Credit Agreement") for the purpose of establishing a
reducing revolving line of credit in favor of Borrowers, up to the maximum
principal amount of Thirteen Million Dollars ($13,000,000.00).
B. For the purpose of this Second Amendment, all capitalized words
and terms not otherwise defined herein shall have the respective meanings and be
construed herein as provided in Section 1.01 of the Existing Credit Agreement
and any reference to a provision of the Existing Credit Agreement shall be
deemed to incorporate that provision as a part hereof, in the same manner and
with the same effect as if the same were fully set forth herein.
C. Borrowers and Guarantor desire to further amend the Existing
Credit Agreement for the following purposes:
(i) As of April 1, 1998, modifying the rate of interest
accruing on the unpaid balance of principal by substituting rates
based upon the Prime Rate plus an Applicable Margin based on the
Leverage Ratio of the Borrower Consolidation and rates, to be
effective at the option of Borrowers, based on LIBO Rates plus an
Applicable Margin based on the Leverage Ratio of the Borrower
Consolidation; and
(ii) Subject to the occurrence of the Commitment Increase
Conditions, increasing the Aggregate Commitment to Fifteen Million
Dollars ($15,000,000.00) for the purpose of providing financing for
the acquisition and development of
the Xxxxx Property.
X. Xxxxx have agreed to make the amendments set forth in the
preceding recital paragraph subject to the terms, conditions and provisions set
forth in this Second 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 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:
"Aggregate Commitment" shall mean reference to the aggregate amount
committed by Lenders for advance to or on behalf of Borrowers as Borrowings
under the Credit Facility: (i) in the initial principal amount, as of the
Closing Date, of Thirteen Million Dollars ($13,000,000.00), or (ii) in the event
of the occurrence of the Commitment Increase Effective Date, the principal
amount of Fifteen Million Dollars ($15,000,000.00), in each case as reduced on
each Reduction Date by the Scheduled Reductions to the Maximum Scheduled
Balance, and further subject to the additional reductions and/or limitations for
advance as set forth or incorporated in the definition of Maximum Permitted
Balance.
"Aggregate Commitment Reduction Schedule" shall mean: (i) the
Aggregate Commitment Reduction Schedule marked Schedule 2.01(c) affixed to the
Original Credit Agreement and by this reference incorporated herein and made a
part hereof, or (ii) in the event of occurrence of the Commitment Increase
Effective Date, the Aggregate Commitment Reduction Schedule - Alternate One
marked "Schedule 2.01(c) - Alternate One", affixed to the Second Amendment and
by this reference incorporated herein and made a part hereof, in each case
setting forth the Scheduled Reductions and Maximum Scheduled Balance as of each
Reduction Date under the Credit Facility.
"Applicable Margin" means for any Prime Rate Loan or LIBOR Loan the
applicable per annum percentage amount to be added to the Prime Rate or the LIBO
Rate, as the case may be, as follows: (i) commencing on April 1, 1998, the
margin rates set forth in the table below based on the Leverage Ratio of the
Borrower Consolidation calculated for the Fiscal Quarter ending December 31,
1997, together with the immediately preceding three (3) Fiscal Quarters on a
four (4) Fiscal Quarter basis; and (ii) on and after June 1, 1998, the margin
rates set forth in the table below based on the Leverage Ratio of the Borrower
Consolidation as of each Fiscal Quarter end, commencing with the Fiscal Quarter
ending March 31, 1998, together with the immediately preceding three (3) Fiscal
Quarters on a four (4) Fiscal Quarter basis, any change in the applicable
percentage amount by reason thereof to be effective as of the 1st day of the
third month immediately following each such Fiscal Quarter end:
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PRICING LEVERAGE PRIME RATE LIBO RATE
LEVEL RATIO MARGIN MARGIN
------------------------------------------------------------
I Less than 2.00 0.00% 2.70%
to 1.00
------------------------------------------------------------
II Greater than or 0.25% 2.95%
equal to 2.00
to 1.00 but
less than 2.50
to 1.00
------------------------------------------------------------
III Greater than or 0.50% 3.20%
equal to 2.50
to 1.0 but less
than 3.00 to 1.0
------------------------------------------------------------
IV Greater than or 0.75% 3.45%
equal to 3.00
to 1.0
------------------------------------------------------------
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"Banking Business Day" means (a) with respect to any Borrowing,
payment or rate determination of LIBOR Loans, a day, other than a Saturday or
Sunday, on which Agent Bank is open for business in San Francisco, California
and on which dealings in Dollars are carried on in the London interbank market,
and (b) for all other purposes any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the States of California and/or
Nevada, or is a day on which banking institutions located in California and/or
Nevada are required or authorized by law or other governmental action to close.
"Breakage Charges" shall have the meaning set forth in
Section 2.06(c) of the Credit Agreement.
"Commitment Increase" shall mean the increase of the Maximum
Scheduled Balance to Fifteen Million Dollars ($15,000,000.00) upon the
occurrence of all of the Commitment Increase Conditions.
"Commitment Increase Conditions" shall have the meaning set forth in
Paragraph 5 of the Second Amendment.
"Commitment Increase Effective Date" shall mean the date upon which
all of the Commitment Increase Conditions have occurred and the Commitment
Increase is deemed by Agent Bank to be effective.
"Commitment Increase Fee" shall have the meaning set forth in
Paragraph 6(c) of the Second Amendment.
"Continuation/Conversion Notice" shall mean a notice of continuation
of or conversion to a LIBOR Loan and certificate duly executed by an Authorized
Officer of Borrowers, substantially in the form of that certain exhibit marked
"Exhibit K", affixed hereto and by this reference incorporated herein and made a
part hereof.
"Convert, Conversion and Converted" shall refer to a Borrowing at or
continuation of a particular interest rate basis or conversion of one interest
rate basis to another pursuant to Section 2.05(c) of the Credit Agreement as set
forth in Paragraph 2 of the Second Amendment.
"Credit Agreement" shall mean the Existing Credit Agreement as
amended by the Second 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 Second Amendment.
"First Amendment" shall have the meaning set forth in Recital
Paragraph A of the Second Amendment.
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"Xxxxx Expansion Improvements" shall mean the construction of a
parking structure, hotel rooms and walkway across Alley Street connecting the
Xxxxx Property with Xxxxxxx Casino, together with any other improvements thereon
costing in excess of $100,000.00, all of which are first approved in writing by
Agent Bank, which approval shall not be unreasonably withheld or delayed.
"Xxxxx Property" shall mean that certain real property consisting of
seven (7) contiguous lots located in Cripple Creek, Teller County, Colorado,
situate and contiguous to the south line of Alley Street, the north line of
Masonic Street and the easterly line of Second Street.
"Interest Period(s)" shall have the meaning set forth in
Section 2.05(d) of the Credit Agreement.
"Interest Rate Option" shall have the meaning ascribed to such term
in Section 2.05(b) of the Credit Agreement.
"LIBO Rate" means, relative to any Interest Period for any LIBOR
Loan included in any Borrowing, the per annum rate (reserve adjusted as
hereinbelow provided) of interest quoted by Agent Bank, rounded upwards, if
necessary, to the nearest one-sixteenth of one percent (0.0625%) at which Dollar
deposits in immediately available funds are offered to Agent Bank by leading
banks in the London interbank market at approximately 11:00 A.M. London, England
time two (2) Banking Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest Period for a period
approximately equal to such Interest Period and in an amount equal or comparable
to the LIBOR Loan to which such Interest Period relates. The foregoing rate of
interest shall be reserve adjusted by dividing the applicable LIBO Rate by one
(1.00) minus the LIBOR Reserve Percentage, with such quotient to be rounded
upward to the nearest whole multiple of one-hundredth of one percent (0.01%).
All references in this Credit Agreement or other Loan Documents to a LIBO Rate
include the aforesaid reserve adjustment.
"LIBOR Loan" shall mean each portion of the total unpaid principal
under the Credit Facility which bears interest at a rate determined by reference
to the LIBO Rate plus the Applicable Margin.
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBOR Loans made by any Lender, the reserve percentage (expressed as a
decimal) equal to the actual aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transactional adjustments or other scheduled changes in reserve
requirements) announced within Agent Bank as the reserve percentage applicable
to Agent Bank as specified under regulations issued from time to time by the
Federal Reserve Board. The LIBOR Reserve Percentage shall be based on Regulation
D of the Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent Bank were in a net borrowing position.
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"Lender" shall mean individual reference and "Lenders" shall mean
collective reference to WFB and any other bank, finance company, insurance or
other financial institution which is or becomes a party to this Credit Agreement
by execution of a counterpart signature page hereto or an Assignment and
Assumption Agreement, as assignee. At all times that there are no Lenders other
than WFB, the terms "Lender" and "Lenders" means WFB in its individual capacity.
With respect to matters requiring the consent to or approval of all Lenders at
any given time, all then existing Defaulting Lenders will be disregarded and
excluded, and, for voting purposes only, "all Lenders" shall be deemed to mean
"all Lenders other than Defaulting Lenders".
"Leverage Ratio" as of the end of any Fiscal Quarter shall mean with
reference to the Borrower Consolidation, the ratio of Funded Debt to EBITDA.
"Maximum Scheduled Balance" shall mean the maximum amount of
scheduled principal which may be outstanding on the Credit Facility from time to
time: (i) in the amount of Thirteen Million Dollars ($13,000,000.00) as of the
Closing Date, as reduced from time to time by the Scheduled Reductions as set
forth on the Aggregate Commitment Reduction Schedule, or (ii) in the event of
the occurrence of the Commitment Increase Effective Date, in the amount of
Fifteen Million Dollars ($15,000,000.00), as reduced from time to time by the
Scheduled Reductions as set forth on the Aggregate Commitment Reduction Schedule
- Alternate One.
"Note" shall mean: (i) the Revolving Credit Note, a copy of which is
marked "Exhibit A", affixed to the Original Credit Agreement and by this
reference incorporated herein and made a part hereof, executed by Borrowers as
of the Closing Date, or (ii) in the event of the occurrence of the Commitment
Increase Effective Date, the Revolving Credit Note (Restated), a copy of which
is marked "Exhibit A", affixed to the Second Amendment and by this reference
incorporated herein and made a part hereof, executed by Borrowers on or before
the Commitment Increase Effective Date, in each case payable to the order of
Agent Bank on behalf of the Lenders, evidencing the Credit Facility, as the same
may be amended, modified, supplemented, replaced, renewed or restated from time
to time.
"Original Credit Agreement" shall have the meaning set forth in
Recital Paragraph A of the Second Amendment.
"Pricing Certificate" shall have the meaning set forth in Section
5.08(i) of the Credit Agreement (Paragraph 4 of the Second Amendment).
"Prime Rate Loan" shall mean reference to that portion of the unpaid
principal balance of the Credit Facility bearing interest with reference to the
Prime Rate, plus the Applicable Margin.
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"Schedule of Lenders' Proportions in Credit Facility" shall mean:
(i) the Schedule of Lenders' Proportions in Credit Facility, a copy of which is
set forth as Schedule 2.01(a), affixed to the Original Credit Agreement and by
this reference incorporated herein and made a part hereof, or (ii) in the event
of the occurrence of the Commitment Increase Effective Date, the Schedule of
Lenders' Proportions in Credit Facility - Alternate One, a copy of which is set
forth as Schedule 2.01(a) - Alternate One, affixed to the Second Amendment and
by this reference incorporated herein and made a part hereof, in each case
setting forth the respective Syndication Interest and maximum amount to be
funded under the Credit Facility by each Lender, as the same may be amended or
restated from time to time in connection with an Assignment and Assumption
Agreement.
"Second Amendment" shall mean the Second Amendment to
Credit Agreement.
"Second Amendment Effective Date" shall mean the date upon which
each of the conditions precedent set forth in Paragraph 6 of the Second
Amendment shall have occurred to the satisfaction of Agent Bank.
2. Restatement of Article II. On the Second Amendment Effective
Date, Article II of the Original Credit Agreement shall be and is hereby
restated and amended to read in its entirety as follows:
"ARTICLE II
AMOUNT, TERMS AND SECURITY OF THE CREDIT FACILITY
Section 2.01. The Credit Facility.
a. Subject to the conditions and upon the terms hereinafter
set forth and in accordance with the terms and provisions of the Note,
Lenders severally agree in the proportions set forth on the Schedule of
Lenders' Proportions in Credit Facility to lend and advance Borrowings to
Borrowers, up to the Maximum Permitted Balance, in such amounts as
Borrowers may request by: (i) Notice of Borrowing duly executed by an
Authorized Officer and delivered to Agent Bank on or before three (3)
Banking Business Days prior to the Closing Date for the purpose of
requesting funding of the Closing Disbursements, and (ii) Notice of
Borrowing duly executed by an Authorized Officer and delivered to Agent
Bank from time to time during the Revolving Credit Period when and as
provided in Section 2.03; provided, however, notwithstanding anything
herein contained to the contrary: (a) until WMCKVC has acquired fee title
to the Parking Lot Property, a portion of the Credit Facility equal to the
Parking Lot Purchase Price shall not be available for Borrowing hereunder
for any purpose other than the acquisition by WMCKVC of fee title to the
Parking Lot Property in accordance with the requirements of Article III C,
and (b) until WMCKVC has acquired fee title to the Xxxxx Property, no
portion of the Commitment Increase shall be available for Borrowing
hereunder for any purpose other than the acquisition by WMCKVC of fee
title to the Xxxxx Property in accordance with the requirements of Article
III D.
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b. During the Revolving Credit Period, Borrowers may borrow,
repay and reborrow the Available Borrowings up to the Maximum Permitted
Balance from time to time, provided that at all times the Maximum
Availability shall be no less than zero (0) and provided further, however,
amounts of Funded Outstandings bearing interest with reference to a LIBO
Rate shall be subject to Breakage Charges incident to prepayment as
provided in Section 2.06(c) hereinbelow and such prepayment may only be
made upon three (3) Banking Business Days prior written notice to Agent
Bank with sufficient copies for distribution to each of the Lenders. The
Credit Facility shall be for a term commencing on the Closing Date and
terminating on the Maturity Date, on which date the entire outstanding
balance of the Credit Facility shall be fully paid and Credit Facility
Termination shall occur. In no event shall any Lender be liable to fund
any amounts under the Credit Facility in excess of its respective
Syndication Interest in any Borrowing.
c. Notwithstanding the Scheduled Reductions to the Maximum
Scheduled Balance as set forth on the Aggregate Commitment Reduction
Schedule, Borrowers may voluntarily further reduce the Maximum Permitted
Balance from time to time (a "Voluntary Reduction") on the following
conditions:
(i) that each such Voluntary Reduction be made in
writing by an Authorized Officer, effective on the fifth (5th)
Banking Business Day following receipt by Agent Bank; and
(ii) that each such Voluntary Reduction shall be
irrevocable and a permanent reduction to the Maximum Permitted
Balance.
d. In the event any Scheduled Reduction or Voluntary Reduction
reduces the Maximum Permitted Balance to less than the sum of the Funded
Outstandings, the Borrowers shall immediately cause the Funded
Outstandings to be reduced by such amount as may be necessary to cause the
Funded Outstandings to be equal to or less than the Maximum Permitted
Balance.
Section 2.02. Use of Proceeds of the Credit
Facility. Available Borrowings shall be used for the purposes of:
a. On the Closing Date (collectively the "Closing
Disbursements"):
(i) paying in full all loans and advances outstanding under
the Existing Real Estate Debt and the Existing Equipment Debt
as of the Closing Date;
(ii) financing the costs of acquisition by CCCC of fee title
to the Legends Property and the costs of acquisition by WMCKAC
of fee title to the Diamond Lil's Property;
(iii) Nine Hundred Twenty-Three Thousand Dollars ($923,000.00)
toward repayment of outstanding Indebtedness owing by
Borrowers to Guarantor; and
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(iv) paying in full the Upfront Fee, the costs, fees and
expenses of Title Company incurred in connection with the
issuance of the Title Policy, the costs, fees and expenses of
Xxxxxxxxx & Xxxxxx, LLC attorneys for Agent Bank, and
associate counsel and insurance consultants retained by them
incurred to the Closing Date.
b. During the Revolving Credit Period:
(i) funding working capital needs of Borrowers
relating to the Casino Facilities;
(ii) financing Distributions to Guarantor to the extent not
prohibited by the Financial Covenants and so long as no
Default or Event of Default would result from the making of
such Distributions;
(iii) financing the costs of acquisition by WMCKVC of fee
title to the Parking Lot Property, subject to compliance with
the requirements of Article III C;
(iv) subject to the full satisfaction of each of the
Commitment Increase Conditions, financing the costs of
acquisition by WMCKVC of fee title to the Xxxxx Property,
subject to compliance with the requirements of Article III D,
and thereafter financing the costs of the Xxxxx Expansion
Improvements; and
(v) funding ongoing Capital Expenditure
requirements of Borrowers relating to the Casino
Facilities.
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Section 2.03. Notice of Borrowings.
a. Borrowings shall be made through Agent Bank's credit sweep
product; provided, however, for each Borrowing in excess of Five Hundred
Thousand Dollars ($500,000.00), an Authorized Officer shall give Agent
Bank, no later than 10:00 a.m. on a Banking Business Day at Agent Bank's
office specified in Section 2.06(b), three (3) full Banking Business Days
prior written notice in the form of the Notice of Borrowing ("Notice of
Borrowing"), a copy of which is marked "Exhibit C", affixed to the Second
Amendment and by this reference incorporated herein and made a part
hereof, for each proposed Borrowing to be made during the Revolving Credit
Period with reference to a LIBO Rate and at least two (2) full Banking
Business Days prior notice for all other Borrowings, specifying the date
and amount of each proposed Borrowing. Agent Bank shall give prompt, and
in any event within one (1) Banking Business Day, notice of each Notice of
Borrowing to Lenders of the amount to be funded and specifying the Funding
Date. Not later than 10:00 o'clock a.m. on the Funding Date specified,
each Lender shall disburse to Agent Bank the Pro Rata Share to be advanced
by each such Lender in lawful money of the United States of America and in
immediately available funds. Agent Bank shall make the proceeds of such
fundings received by it on or before 11:00 o'clock a.m. from the Lenders
available to Borrowers by depositing in or wiring to, prior to 1:00
o'clock p.m. on the day so received (but not prior to the Funding Date),
the Designated Deposit Account the amounts received from the Lenders. No
Borrowing may exceed the Available Borrowings.
b. The failure of any Lender to fund its Pro Rata Share of any
Borrowing on any Funding Date shall not relieve any other Lender of any
obligation hereunder to fund its Pro Rata Share of such Borrowing on such
Funding Date nor relieve the Lender which has failed to fund of its
obligations to Borrowers hereunder. No Lender shall be responsible for the
failure of any other Lender to fund its Pro Rata Share of such Borrowing
on any Funding Date nor shall any Lender be responsible for the failure of
any other Lender to perform its respective obligations hereunder.
Section 2.04. Conditions of Borrowings. During the Revolving Credit
Period, Borrowings will only be made so long as Borrowers are in full
compliance with each of the requirements and conditions precedent set
forth in Article III B of the Existing Credit Agreement and with respect
to the initial disbursement of the Commitment Increase, so long as
Borrowers have complied with each of the requirements and conditions
precedent set forth in Article III D as set forth in the Second Amendment.
Provided, however, upon the consent of the Requisite Lenders, Lenders
shall advance Borrowings notwithstanding the existence of less than full
compliance with the requirements of Articles III B or III D and Borrowings
so made shall be deemed to have been made pursuant to this Credit
Agreement.
Section 2.05. The Note and Interest Rate Options.
a. The Credit Facility shall be further evidenced by the Note
payable to the order of Agent Bank on behalf of the Lenders. Borrowers
waive any rights which they might otherwise have under Colorado Revised
Statutes xx.xx. 00-00-000 or 00-00-000 (or under any corresponding future
statute or rule of law in any jurisdiction) by reason of any release of
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fewer than all of the Borrowers. Agent Bank shall record the date and
amount of each Borrowing advanced by the Lenders together with the
applicable LIBOR Loan Interest Period in the case of portions of the
unpaid principal under the Credit Facility bearing interest with reference
to a LIBO Rate, and the amount of each repayment of principal made
thereunder by Borrower and the entry of such records shall be conclusive
absent manifest error; provided, however, the failure to make such a
record or notation with respect to any Borrowing or repayment thereof, or
an error in making such a record or notation, shall not limit or otherwise
affect the obligations of Borrower hereunder or under the Note.
b. Interest shall accrue on the entire outstanding principal
balance at a rate per annum equal to the Prime Rate plus one percent
(1.0%) per annum until April 1, 1998, on and after which date interest
shall accrue on the entire outstanding principal balance at a rate per
annum equal to the Prime Rate plus the Applicable Margin, unless Borrowers
request a LIBOR Loan pursuant to Section 2.03 or elect pursuant to Section
2.05(c) hereinbelow to have interest accrue on a portion or portions of
the outstanding principal balance at a LIBO Rate ("Interest Rate Option"),
in which case interest on such portion or portions shall accrue at a rate
per annum equal to such LIBO Rate plus the Applicable Margin, as long as:
(i) each such LIBOR Loan is in a minimum amount of One Million Dollars
($1,000,000.00) and in minimum increments of One Hundred Thousand Dollars
($100,000.00), and (ii) no more than four (4) LIBOR Loans may be
outstanding at any one time. Interest accrued on each Prime Rate Loan
shall be due and payable on the first day of the month following the
Closing Date, on the first day of each successive month thereafter, and on
the Maturity Date. For each LIBOR Loan, interest shall be due and payable
at the end of each Interest Period applicable thereto, but in any event no
less frequently than at the end of each three (3) month period during the
term of such LIBOR Loan. Except as qualified above, on and after April 1,
1998, the outstanding principal balance hereunder may be a Prime Rate Loan
or one or more LIBOR Loans, or any combination thereof, as Borrowers shall
specify.
c. At any time and from time to time, Borrowers may Convert
from one Interest Rate Option to another Interest Rate Option by giving
irrevocable notice to Agent Bank of such Conversion by 10:00 a.m., on a
day which is at least three (3) Banking Business Days prior to the
proposed date of such Conversion to each LIBOR Loan or two (2) Banking
Business Days prior to the proposed date of such Conversion to each Prime
Rate Loan. Each such notice shall be made by an Authorized Officer by
telephone or telex and thereafter immediately confirmed in writing by
delivery to Agent Bank of a Continuation/Conversion Notice specifying the
date of such Conversion, the amounts to be so Converted and the initial
Interest Period if the Conversion is to a LIBOR Loan. Upon receipt of such
Continuation/Conversion Notice, Agent Bank shall promptly set the
applicable interest rate (which in the case of a LIBOR Loan shall be the
LIBO Rate plus the Applicable Margin as of the second Banking Business Day
prior to the first day of the applicable Interest Period) and the
applicable Interest Period if the Conversion is to a LIBOR Loan and shall
confirm the same in writing to Borrowers and Lenders. Each Conversion
shall be on a Banking Business Day. No LIBOR Loan shall be converted to a
Prime Rate Loan or renewed on any day other than the last day of the
current Interest Period relating to such amounts outstanding unless
Borrowers pay any applicable Breakage Charges. If Borrowers fail to give a
Continuation/Conversion Notice for the continuation of a LIBOR Loan as a
LIBOR Loan for a new Interest Period in accordance with this Section
2.05(c), such LIBOR Loan shall automatically become a Prime Rate Loan at
the end of its then current Interest Period.
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d. Each interest period (each individually an "Interest
Period" and collectively the "Interest Periods") for a LIBOR Loan shall
commence on the date such LIBOR Loan is made or the date of Conversion of
any amount or amounts of the outstanding Borrowings hereunder to a LIBOR
Loan, as the case may be, and shall end on the date which is one (1), two
(2), three (3) or six (6) months thereafter at the election of Borrowers.
However, no Interest Period may extend beyond the Maturity Date. Each
Interest Period for a LIBOR Loan shall commence and end on a Banking
Business Day. If any Interest Period would otherwise expire on a day which
is not a Banking Business Day, the Interest Period shall be extended to
expire on the next succeeding Banking Business Day, unless the result of
such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the
immediately preceding Banking Business Day.
e. The applicable LIBO Rate and Prime Rate shall be determined
by the Agent Bank, and notice thereof shall be given promptly to Borrowers
and Lenders. Each determination of the applicable Prime Rate and LIBO Rate
shall be conclusive and binding upon the Borrowers, in the absence of
manifest or demonstrable error. The Agent Bank shall, upon written request
of Borrowers or any Lender, deliver to Borrowers or such Lender, as the
case may be, a statement showing the computations used by the Agent Bank
in determining any rate hereunder.
f. Computation of interest on all Prime Rate Loans and on all
LIBOR Loans shall be calculated on the basis of a year of three hundred
sixty (360) days and the actual number of days elapsed. The applicable
Prime Rate shall be effective the same day as a change in the Prime Rate
is announced by WFB as being effective.
g. If with respect to any Interest Period, (a) the Agent Bank
reasonably determines (which determination shall be binding and conclusive
on Borrowers) that by reason of circumstances affecting the inter-bank
eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable LIBO Rate, or (b) Requisite Lenders advise
Agent Bank that the LIBO Rate as determined by Agent Bank will not
adequately and fairly reflect the cost to such Lenders of maintaining or
funding, for such Interest Period, a LIBOR Loan, then so long as such
circumstances shall continue: (i) Agent Bank shall promptly notify
Borrowers thereof, (ii) the Agent Bank shall not be under any obligation
to make a LIBOR Loan or Convert a Prime Rate Loan into a LIBOR Loan for
which such circumstances exist, and (iii) on the last day of the then
current Interest Period, the LIBOR Loan for which such circumstances exist
shall, unless then repaid in full, automatically Convert to a Prime Rate
Loan.
h. Notwithstanding any other provisions of the Note or the
Credit Agreement, if, after April 1, 1998 any law, rule, regulation,
treaty, interpretation or directive (whether having the force of law or
not) or any change therein shall make it unlawful for any Lender to make
or maintain LIBOR Loans, (i) the commitment and agreement to maintain
LIBOR Loans as to such Lender shall immediately be suspended, and (ii)
unless required to be terminated earlier, LIBOR Loans as to such Lender,
if any, shall be Converted on the last day of the then current Interest
Period applicable thereto to a Prime Rate Loan. If it shall become lawful
for such Lender to again maintain LIBOR Loans, then Borrowers may once
again as to such Lender request Conversions to the LIBO Rate.
12
Section 2.06. Place and Manner of Payment.
a. All amounts payable by Borrowers to the Lenders shall be
made to Agent Bank on behalf of Lenders pursuant to the terms of the
Credit Agreement and the Note and shall be made on a Banking Business Day
in lawful money of the United States of America and in immediately
available funds. Other than in connection with the Scheduled Reductions of
principal, Borrower shall not make more than three (3) repayments
("Principal Prepayments") of the outstanding balance of principal owing
under the Credit Facility during each calendar month. Each such Principal
Prepayment shall be in a minimum amount of Five Hundred Thousand Dollars
($500,000.00) and in increments of One Hundred Thousand Dollars
($100,000.00).
b. All such amounts payable by Borrowers shall be made to
Agent Bank at its office located at Xxxxx Fargo Agency Department, 000
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. If such payment
is received by Agent Bank prior to 11:00 o'clock a.m., Agent Bank shall
credit Borrowers with such payment on the day so received and shall
disburse to the appropriate Lenders on the same day such Lenders' Pro Rata
Shares of payments relating to the Credit Facility based on the respective
Syndication Interests, in immediately available funds. If such payment is
received by Agent Bank after 11:00 o'clock a.m., Agent Bank shall credit
Borrowers with such payment as of the next Banking Business Day and
disburse to the appropriate Lenders on the next Banking Business Day such
Lenders' Pro Rata Shares of such payment relating to the Credit Facility
based on their respective Syndication Interests, in immediately available
funds. Any payment on the Credit Facility made by Borrowers to Agent Bank
pursuant to the terms of the Credit Agreement or the Note for the account
of Lenders shall constitute payment to the appropriate Lenders. If the
Note or any payment required to be made thereon or hereunder, is or
becomes due and payable on a day other than a Banking Business Day, the
due date thereof shall be extended to the next succeeding Banking Business
Day and interest thereon shall be payable at the then applicable rate
during such extension.
c. The outstanding principal owing under the Credit Facility
and the Note may, subject to Section 2.06(a), be prepaid at any time in
whole or in part without penalty, provided, however, that any portion or
portions of the unpaid principal balance which is accruing interest at a
LIBO Rate may only be prepaid on the last day of the applicable Interest
Period unless Borrowers give three (3) days prior written notice to Agent
Bank and additionally pay concurrently with such prepayment such
additional amount or amounts as will compensate Lenders for any losses,
costs or expenses which they may incur as a result of such payment,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
LIBOR Loan ("Breakage Charges"). A certificate of a Lender as to amounts
payable hereunder shall be conclusive and binding on Borrowers for all
purposes, absent manifest or demonstrable error. Any calculation hereunder
shall be made on the assumption that each Lender has funded or will fund
each LIBOR Loan in the London interbank market; provided that no Lender
shall have any obligation to actually fund any LIBOR Loan in such manner.
13
d. Unless the Agent Bank receives notice from an Authorized
Officer prior to the date on which any payment is due to the Lenders that
the Borrowers will not make such payment in full as and when required, the
Agent Bank may assume that the Borrowers have made such payment in full to
the Agent Bank on such date in immediately available funds and the Agent
Bank may (but shall not be so required), in reliance upon such assumption,
distribute to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrowers have not made
such payment in full to the Agent Bank, each Lender shall repay to the
Agent Bank on demand such amount distributed to such Lender, together with
interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
Section 2.07. Fees.
a. On the Closing Date, Borrowers shall pay the unpaid balance
of the non-refundable upfront fee (the "Upfront Fee"), in such amount as
has been agreed upon by Agent Bank and Borrowers in the Upfront Fee Side
Letter, which Upfront Fee shall be retained by Agent Bank or distributed
in whole or in part to Lenders as may be agreed between Agent Bank and
Lenders.
b. Commencing with the commencement of the Revolving Credit
Period, Borrowers shall pay to Agent Bank for disbursement to Lenders in
proportion to their respective Syndication Interests in the Credit
Facility and in consideration for their commitment to advance Borrowings
under the Credit Facility during the Revolving Credit Period a
non-refundable fee (the "Nonusage Fee") in the amount of one-half of one
percent (.50%) per annum of the daily average of the Maximum Availability,
computed on the basis of a three hundred sixty (360) day year based on the
actual number of days elapsed, to be calculated during the Revolving
Credit Period and continuing until the Maturity Date. The Nonusage Fee
will be payable on the first Banking Business Day following the end of
each Fiscal Quarter commencing with the Fiscal Quarter in which the
Closing Date occurs, and on the Maturity Date. Each Nonusage Fee shall be
distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility.
Section 2.08. Late Charges and Default Rate.
a. If any principal reduction, interest payment, fee or other
Obligation due under the Note or under the Credit Agreement is not paid
within five (5) days of the date upon which such payment is due, Borrowers
promise to pay a late charge in the amount of three percent (3%) of the
amount of such delinquent payment and Agent Bank need not accept any late
payment made unless it is accompanied by such three percent (3%) late
payment charge. Any late charge shall be paid to Lenders in proportion to
their respective Syndication Interests.
b. In the event of the existence of an Event of Default,
commencing on the first (1st) Banking Business Day following the receipt
by Borrowers of written notice of the occurrence of such Event of Default
from Agent Bank, the total of the unpaid balance of the principal and the
then accrued and unpaid interest owing under the Credit Facility shall
collectively commence accruing interest at a rate equal to five percent
14
(5%) over the Prime Rate (the "Default Rate") until such time as all
payments and additional interest are paid, together with the curing of any
Events of Default which may exist, at which time the interest rate shall
revert to that rate of interest otherwise accruing pursuant to the terms
of the Note.
c. In the event of the occurrence of an Event of Default,
Borrowers agree to pay all reasonable costs of collection, including a
reasonable attorneys' fee, in addition to and at the time of the payment
of such sum of money and/or the performance of such acts as may be
required to cure such default. In the event legal action is commenced for
the collection of any sums owing hereunder or under the terms of the Note,
the Borrowers and Guarantor agree that any judgment issued as a
consequence of such action against any Borrower and/or Guarantor shall
bear interest at a rate equal to the Default Rate until fully paid.
Section 2.09. Security for the Credit Facility. As security for the
due and punctual payment and performance of the terms and provisions of
the Credit Agreement, the Note and each of the other Loan Documents, the
Security Documentation shall be executed and delivered to Agent Bank, as
of the Closing Date, by the respective parties to each of the Security
Documentation.
Section 2.10. Guaranty Agreement. As additional security for the due
and punctual payment and performance of the Credit Facility and each of
the terms, covenants, representations, warranties and provisions herein
contained and contained in each of the Loan Documents, on or before the
Closing Date Guarantor shall execute the Guaranty, a copy of which is
marked "Exhibit B", affixed to the Original Credit Agreement and by this
reference incorporated herein and made a part hereof.
Section 2.11. Net Payments. All payments under the Credit Agreement,
the Note and/or any other Loan Document shall be made without set-off or
counterclaim and in such amounts as may be necessary in order that all
such payments, after deduction or withholding for or on account of any
future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by the United States or any Governmental Authority, other
than franchise taxes or any tax on or measured by the gross receipts or
overall net income of any Lender pursuant to the income tax laws of the
United States or any State, or the jurisdiction where each Lender's
principal office is located (collectively "Taxes"), shall not be less than
the amounts otherwise specified to be paid under the Credit Agreement and
the Note. A certificate as to any additional amounts payable to the
Lenders under this Section 2.11 submitted to the Borrowers by the Lenders
shall show in reasonable detail an accounting of the amount payable and
the calculations used to determine in good faith such amount and shall be
conclusive absent manifest or demonstrable error. Any amounts payable by
the Borrowers under this Section 2.11 with respect to past payments shall
be due within ten (10) days following receipt by the Borrowers of such
certificate from the Lenders; any such amounts payable with respect to
future payments shall be due within ten (10) days after demand with such
future payments. With respect to each deduction or withholding for or on
account of any Taxes, the Borrowers shall promptly furnish to the Lenders
such certificates, receipts and other documents as may be required (in the
reasonable judgment of the Lenders) to establish any tax credit to which
the Lenders may be entitled.
15
Section 2.12. Increased Costs. If after the date hereof the
adoption, or any change in, of any applicable law, rule or regulation
relating to LIBOR Loans (including without limitation Regulation D of the
Board of Governors of the Federal Reserve System and any successor
thereto), or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender
with any request or directive relating to LIBOR Loans (whether or not
having the force of law) of any such Governmental Authority, central bank
or comparable agency:
a. Shall subject any Lender to any tax, duty or other charge
with respect to LIBOR Loans, the Note or such Lender's obligation to make
any LIBOR Loans, or shall change the basis of taxation of payments to such
Lender of the principal of, or interest on, LIBOR Loans or any other
amounts due under the Note in respect of LIBOR Loans or such Lender's
obligation to fund LIBOR Loans (except for changes in the rate of tax on
the overall net income of such Lender imposed by the United States or any
Governmental Authority pursuant to the income tax laws of the United
States or any State, or the jurisdiction where each Lender's principal
office is located); or
b. With respect to any LIBOR Loan, shall impose, modify or
deem applicable any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capitalization, capital adequacy
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender; or
c. Shall impose on any Lender any other
condition affecting LIBOR Loans, the Note or such Lender's
obligation to make any LIBOR Loans;
and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D or reserve requirements referred to above or a
successor thereto, to impose a cost on) such Lender (or any Eurodollar
office of such Lender) of making or maintaining LIBOR Loans, or to reduce
the rate of return on capital of the Lender or the amount of any sum
received or receivable by such Lender under the Note, then within ten (10)
days after demand by such Lender (which demand shall be accompanied by a
certificate setting forth the basis of such demand), the Borrower shall
pay directly to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost (or in the case of
Regulation D or reserve requirements or capital adequacy referred to above
or a successor thereto, such costs which may be imposed upon such Lender)
or such reduction of the rate of return on capital or of any sum received
or receivable under the Note. Each Lender agrees to use its reasonable
efforts to minimize such increased or imposed costs or such reduction.
Section 2.13. Mitigation; Exculpation. Each Lender agrees that it
will promptly notify the Borrower in writing upon its becoming aware that
any payments are to become due to it under the Credit Agreement pursuant
to Section 2.11 or 2.12. Each Lender further agrees that it will use
reasonable efforts not materially disadvantageous to it (in its reasonable
determination) in order to avoid or minimize, as the case may be, the
payment by the Borrowers of any additional amounts pursuant to Section
2.11 or 2.12. Each Lender represents, to the best of its knowledge, that
as of the Second Amendment Effective Date no such amounts are payable."
16
3. Addition of Article III D, Sections 3.28, 3.29 and 3.30. As of
the Second Amendment Effective Date, Article III D, containing Sections 3.28,
3.29 and 3.30 shall be and are hereby added to the Existing Credit Agreement as
follows:
"D. Conditions Precedent to Disbursement of Xxxxx Property Purchase
Price. In addition to the requirements set forth in Article III B and the
full satisfaction of each of the Commitment Increase Conditions, the
obligation of Lenders and Agent Bank to advance a Borrowing to finance the
cost of acquisition of the Xxxxx Property as permitted under Section
2.02(b)(iv) is subject to Agent Bank having received, in each case in form
and substance reasonably satisfactory to Agent Bank and Requisite Lenders
each of the following:
Section 3.28. Legal Description and Deed of Trust. A complete legal
description of the Xxxxx Property shall be prepared and delivered to Agent
Bank together with a title commitment showing all exceptions to title
thereto. WMCKVC shall execute and deliver to Agent Bank a deed of trust
and security agreement with assignment of rents encumbering the Xxxxx
Property in substantially the same form as the Deed of Trust.
Section 3.29. Environmental Site Assessment.
a. A Phase I Environmental Site Assessment of the Xxxxx
Property, prepared in conformance with the scope and limitations of ASTM
Standard Designation E1527-93 and approved by Agent Bank. Any recommended
action shall have been completed.
b. Borrowers shall confirm in writing that the representations
contained in Sections 2.1 and 2.2 of the Environmental Certificate are
true and correct in all material respects as to the Xxxxx Property.
Section 3.30. Title Policy or Endorsement. Borrowers shall cause, at
their expense, concurrently with the funding of the Borrowing to finance
the cost of acquisition of the Xxxxx Property, the Title Insurance Company
to issue a title insurance policy or endorsement to the Title Insurance
Policy in favor of Agent Bank insuring the deed of trust encumbering the
Xxxxx Property as a first priority lien, subject only to such exceptions
as are approved by Agent Bank."
4. Addition of Section 5.08(i) - Pricing Certificate Requirement. As of the
Second Amendment Effective Date, Section 5.08(i) shall be and is hereby added to
the Existing Credit Agreement as follows:
"c. As soon as practicable, and in any event within forty-five
(45) days after the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending December 31, 1997, a pricing certificate in the form marked
"Exhibit L", affixed hereto and by this reference incorporated herein and
made a part hereof (the "Pricing Certificate") setting forth a preliminary
calculation of the Leverage Ratio of the Borrower Consolidation as of the
last day of such Fiscal Quarter, and providing reasonable detail as to the
calculation thereof, which calculations shall be based on the preliminary
unaudited financial statements of Borrowers for such Fiscal Quarter, and
as soon as practicable thereafter, in the event of any material variance
in the actual calculation of the Leverage Ratio from such preliminary
calculation, a revised Pricing Certificate setting forth the actual
calculation thereof.
17
5. Commitment Increase Conditions. The Commitment Increase is
subject to and contingent upon the occurrence and full satisfaction of each of
the following conditions precedent on or before July 1, 1998 (collectively, the
"Commitment Increase Conditions"):
a. The Borrower Consolidation has achieved a Leverage Ratio no
greater than 3.00 to 1.00 as of the end of the Fiscal Quarter ending December
31, 1997, or as of the end of the Fiscal Quarter ending March 31, 1998, in each
instance calculated for such Fiscal Quarter and the three (3) immediately
preceding Fiscal Quarters on a four (4) Fiscal Quarter basis;
b. No Default or Event of Default shall have occurred and
remains continuing;
c. Borrowers shall have executed and delivered to Agent Bank
the original Revolving Credit Note (Restated), a copy of the form of which is
attached to the Second Amendment as Exhibit A; and
d. Borrowers shall have executed and delivered to Agent Bank
any amendments to the Security Documentation reasonably requested by Agent Bank
for the purpose of securing repayment of the Commitment Increase and shall pay
the costs of a 110.5 endorsement or other applicable endorsement to the Title
Insurance Policy evidencing its continued application to the Credit Facility, as
increased by the Commitment Increase, and to the Security Documentation.
6. 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 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 February 6, 1998:
a. Due execution by Borrowers, Guarantor and
Banks of three (3) duplicate originals of this Second Amendment;
b. Corporate resolutions or other evidence of requisite
authority of Borrowers and Guarantor, as applicable, to execute the Second
Amendment;
c. Payment of a fee in the amount of Thirty Thousand Dollars
($30,000.00) (the "Commitment Increase Fee") to Agent Bank to be disbursed by
Agent Bank to Lenders in proportion to their respective Syndication Interests in
the Credit Facility;
d. Reimbursement to Agent Bank by Borrowers for all reasonable
fees and out-of-pocket expenses incurred by Agent Bank in connection with the
Commitment Increase, including, but not limited to, reasonable attorneys' fees
of Xxxxxxxxx & Xxxxxx, LLC and all other like expenses remaining unpaid as of
the Second Amendment Effective Date; and
e. Such other documents, instruments or conditions as may be
reasonably required by Lenders.
18
7. Representations of Borrowers. Borrowers hereby represent to the
Banks that:
a. the representations and warranties contained in Article IV
of the Existing Credit Agreement and contained in each of the other Loan
Documents (other than representations and warranties which expressly speak only
as of a different date, which shall be true and correct in all material respects
as of such date) are true and correct on and as of the Second Amendment
Effective Date in all material respects as though such representations and
warranties had been made on and as of the Second Amendment Effective Date,
except to the extent that such representations and warranties are not true and
correct as a result of a change which is permitted by the Credit Agreement or by
any other Loan Document or which has been otherwise consented to by Agent Bank;
b. Since the date of the most recent financial statements
referred to in Section 5.08 of the Existing Credit Agreement, no Material
Adverse Change has occurred and no event or circumstance which could reasonably
be expected to result in a Material Adverse Change or Material Adverse Effect
has occurred;
c. no event has occurred and is continuing
which constitutes a Default or Event of Default under the terms of the
Credit Agreement;
d. The execution, delivery and performance of this Second
Amendment has been duly authorized by all necessary action of Borrowers and
Guarantor and this Second Amendment constitutes a valid, binding and enforceable
obligation of Borrowers and Guarantor; and
e. The proceeds of the Commitment Increase shall be used only
for the purposes set forth in Section 2.02(b) above.
8. Affirmation and Ratification of Continuing Guaranty. Guarantor
joins in the execution of this Second Amendment for the purpose of ratifying and
affirming its obligations under the Continuing Guaranty for the guaranty of the
full and prompt payment and performance of all of Borrowers' indebtedness and
obligations under the Credit Facility and each of the Loan Documents as modified
under this Second Amendment, including, without limitation, all amounts owing
under the Commitment Increase.
9. Incorporation by Reference. This Second Amendment shall be and is
hereby incorporated in and forms a part of the Existing Credit Agreement.
10. Governing Law. This Second Amendment to Credit Agreement shall
be governed by the internal laws of the State of Nevada without reference to
conflicts of laws principles.
11. Counterparts. This Second 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.
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12. Continuance of Terms and Provisions. All of the terms and
provisions of the Credit Agreement shall remain unchanged except as specifically
modified herein.
13. Additional/Replacement Schedules and Exhibits Attached. The
following additional and replacement Schedules and Exhibits are attached hereto
and incorporated herein and made a part of the Credit Agreement as follows:
Schedule 2.01(a)
Alternate One - Schedule of Lenders' Proportions in Credit
Facility - Alternate One
Schedule 2.01(c)
Alternate One - Aggregate Commitment Reduction Schedule
- Alternate One
Exhibit A - Revolving Credit Note (Restated)- Form
Exhibit C - Notice of Borrowing - Form
Exhibit K - Continuation/Conversion Notice - Form
Exhibit L - Pricing Certificate - Form
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the day and year first above written.
BORROWERS:
WMCK VENTURE CORP.,
a Delaware corporation
By /s/ Xxxxxxx Teufelberger
---------------------------------
Name Xxxxxxx Teufelberger
Title Director & Secretary
CENTURY CASINOS CRIPPLE
CREEK, INC.,
a Colorado corporation
By /s/ Xxxxxxx Teufelberger
---------------------------------
Name Xxxxxxx Teufelberger
Title Director & Secretary
20
WMCK ACQUISITION
CORP., a Delaware
corporation
By /s/ Xxxxxxx Teufelberger
---------------------------------
Name Xxxxxxx Teufelberger
Title Director & Secretary
GUARANTOR:
CENTURY CASINOS, INC.,
a Delaware corporation
By /s/ Xxxxxxx Teufelberger
---------------------------------
Name Xxxxxxx Teufelberger
Title Director & Secretary
BANKS:
XXXXX FARGO BANK,
National Association,
Agent Bank and Lender
By /s/ Xxxx Xxxxxx
---------------------------------
Name Xxxx Xxxxxx
Title SVP
